PEOPLE VS. VENERACION October 12, 1995

[GRN 119987-88 October 12, 1995]

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents.

SECOND DIVISION

APPEARANCES OF COUNSEL

The Solicitor General for petitioner.

Paterno L. Esmaquel for respondent Ernesto Cordero.

Miguel Y. Badando for respondent Henry Lagarto y Petilla.

D E C I S I O N

KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death?

The facts antecedent to the case before this Court, as narrated by petitioner,1 involve the perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men.

On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen floating along Del Pan St. near the comer of Lavesares St., Binondo, Manila.

When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left ear, lacerations on her genitalia, and with her head bashed in.

On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information, docketed as Criminal Case No 94-138071, reads:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one alias 'LANDO' and other persons whose true names, identities and present whereabouts are still unknown and helping one another, with treachery, taking advantage of their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and feloniously have camal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the

said ABUNDIO LAGUNDAY, a.k.a. 'LANDO' and others, caused her fatal injuries which were the direct cause of her death immediately thereafter.

CONTRARY TO LAW.

Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. 'Booster,' of 1198 Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. 'Lando,' of 1274 Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. 'Curimao,' also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. 'Joel,' of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138, allegedly committed as follows:

That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias'M' JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength and nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said accused together with their confederates ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately thereafter.

CONTRARY TO LAW.

The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12, 1994), pleaded 'Not Guilty.' Abundio Lagunday was dropped from the Information.

After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty of reclusion perpetua with all the accessories provided for by law."3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads:

The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila.

WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein accused is hereby reiterated.

The Clerk of this Court is hereby directed to transmit the complete records of these cases, together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure.

SO ORDERED.

Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of P100,000 for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages, and the amount of P52,000.00 for actual damages representing expenses incurred for the wake and funeral of the victim. They are further ordered to pay the costs of these suits.

SO ORDERED. (ANNEX 'A,' Petition)

of guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding the accused guilty of the crime of Rape With Homicide.

We find for petitioner.

Obedience to the rule of law forms the bedrock of our system of Justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"4 resist encroachments by governments, political parties,5 or even the interference of their own personal beliefs.

In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions.

Section I I of R.A. No. 7659 provides:

Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

Art. 3 3 5. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented,

The crime of rape shall be punished by reclusion perpetua.

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

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. x x x.6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows judges the discretion - depending on the existence of circumstances modifying the offense committed to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death." The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death.

We are aware of the trial Judge's misgivings in imposing the death sentence because of his religious convictions, While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco7 we held that:

[W]hen ... private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of Judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them.

The only function of the judiciary is to interpret the laws and. if not in disharmony with the Constitution, to apply them. And for the guidance of

the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the lawmaking body.8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper penalty and civil liability provided for by the law on the accused."9 This is not a case of a magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the penalty of Death,

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent Judge's finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section I I of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty.

SO ORDERED.

Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco, and Hermosisima, Jr., JJ., concur.

Narvasa, C.J. and Vitug, JJ, see respective separate opinions.

Regalado, J, with concurring opinion.

Davide, Jr., J, I join Mr. Justice Vitug in his separate opinion.

NARVASA, CJ, concurring:

I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this separate opinion merely to address a question which may be raised in relation to the appeal taken by the accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent Judge declined to act on the merits of motion for reconsideration filed by the prosecution - praying that his decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be imposed" - for the reason that since the accused had already "complied with the legal requirements for the perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court of the special civil action of certiorari at bar.

It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court rendering the judgment, and jurisdiction over the case passes to the appellate tribunal. This proposition considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction. Such a conclusion is not warranted.

The judgment in question is void, and has been annulled and set aside by this Court, because rendered "without or in excess of * * * Jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so far as it imposes, i . n light of the facts found to have been proven beyond reasonable doubt, a penalty other than that peremptorily prescribed by law, The Judgment being void, the appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be deemed to have thereby lost Jurisdiction of the cases. It cannot thus be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There exists no legal obstacle to the remand of the cases to it and its modification of the Judgment so that it may comply with the mandatory prescription of the law.

REGALADO, J, concurring:

I concur without reservation in the ponencia in this case and its directive that the court a quo impose the correct penalty of death as provided by law and consequent to its findings of guilt on the part of private respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the mandate thereof would not have been necessary were it not for the contrary observations that the petition herein should either have been dismissed or consolidated with the criminal case elevated on appeal by private respondents.

Such digression from the judgment unconditionally accepted by the other members of the Court does not impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his Judicial discretion.1 On the other hand, the criminal case with which it is sought to be consolidated is an appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of private respondents.

Evidently, the determinative issues involved and the limited relief sought in the present special civil action are entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject matter and the existence of a common question of law or fact. This is essentially the same as the rule on consolidation in criminal procedure3 which contemplates charges for offenses founded on the same facts, or forming part of a series of offenses of similar character.

Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and not a special civil action in combination with the former. The impropriety of the latter situation is specially underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial courts in the exercise of original jurisdiction and to the appellate courts in the implementation of revisory power.

The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge erroneous because he imposed the wrong penalty - corrected on that score in the first instance. After such correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the resultant amended judgment containing the proper penalty

shall be the basis for the review as to whether appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure, While it does not exactly square with the figurative posture of putting the cart before the horse, it does result in the same absurdity of both the horse and the cart moving abreast at the same time along the same Judicial path.

It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the judgment a quo open for review and the Court may raise the penalty to the appropriate punitive level. But, as the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate denouement would be the death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in the appellate court.4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court is permitted.5 Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the penalty imposed may be corrected in the Judgment of the case on the merits,6 why should the appellate course of the proceedings still have to be subject to such contingencies - with the inevitable waste of time and effort in the formulation of alternative theories in two sets of pleadings by both parties - when with the decisive sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare?

Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will consequently be before this Court on automatic review. That provision calling for automatic review when capital punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through protective features established by case law.

Thus, even if the accused had unnecessarily appealed from the Judgment imposing the penalty of death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without the benefit of briefs or arguments from the accused.8 The automatic review of the case shall proceed even if the death convict shall escape,9 as an exception to the provisions of Section 8, Rule 124, and such automatic review cannot be waived.10 The aforementioned beneficial effects are not provided for and may not be availed of by the accused in an ordinary appeal to this Court.

The automatic review of the death sentence ensures the right of the condemned person to procedural due process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental policies, hence my unqualified assent thereto.

VITUG, J., dissenting:

The ponencia itself indicates that the case against the convicted accused is already on appeal before this Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open for review and consideration. A ruling on the petition would be precipitate and might be so perceived as peremptory on the imposition of the death penalty.

With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at the very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.

1. Rollo, p. 4, Except as to the penalty imposed, petitioner and respondent court are in agreement as to the essential facts of the case.

2. Rollo, pp. 24-51.

3. Rollo, p. 28, The dispositive portion reads:

3. Disagreeing

4. Act of Athens (1995),

5. Id.

6. Italics supplied.

7. 88 Phil. 36 [1951].

8. Id., at 43-44.

9. Rule 120. Sec I

1. People vs. Olaes, 105 Phil. 502 (1959); People vs. Limaco, 88 Phil. 35 (1951); People vs. Carillo, et al., 85 Phil. 611 (1950).

2. Section 1, Rule 3 1.

3. Section 14, Rule 119.

4. U.S vs. Sotto. 38 Phil 666 (1918),

5. People vs. Mendoza, 93 Phil. 581 (1953)

6. See People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117.

7. Sec. 10, Rule 122.

8. People vs. Villanueva, 93 Phil. 927 (1953).

9. People vs. Vallente, L-37937, September 30, 1986, 144 SCRA 495; People vs. Cornelio, et al., L-1289, June 10, 1971, 39 SCRA 435.

10. People vs. Daban, L-31429, January 31, 1972, 43 SCRA 185.

[GRN 43530 August 3, 1935]

THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. AURELIO LAMAHANG, DEFENDANT AND APPELLANT.

1. CRIMINAL LAW; ATTEMPT TO COMMIT AN INDETERMINAT E CRIME.--The attempt which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution thereof by evert act of the perpetrator leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code.

2. ID.; ID.-It is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed should constitute a mere beginning of execution; it is necessary to establish its unavoidable relation, like the logical and natural relation of the cause and its effect, to the deed which, upon its consummation, will ripen into one of the crimes defined and punished by the Code; it is necessary to prove that such beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.

3. ID.; ID.; ATTEMPTED ROBBERY.- In order that a simple act of entering by means of force or violence another person's dwelling may be considered as attempted robbery, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the present case, there is no evidence in the record from which such purpose of the accused may reasonably be inferred.

4. ID.; ID.; ID.-From the fact cstablished and stated in the decision, that the accused on the day in question was making an opening by mean-, of an iron liar on the wall of T. Y.'s store, it may only be inferred as a logical conclusion that hi,, evident intention was to enter by means of force said store against the will of its owner. That his final objective, once be succeeded in entering the store, was to rob, to cause physical injury to its occupants, or to commit any other offense, there is nothing in the record to justify a concrete finding.

5 ID.; ATTEMPTED TRESPASS TO DWELLING.-The fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales. 59 Phil., 606 and decisions of the Supreme Court of Spain therein cited) . The accused may be convicted and sentenced for an attempt to commit this crime, in accordance with the weight of the evidence and the allegations contained in the information.

APPEAL from a judgment of the Court of First Instance of Iloilo. Paredes,. J.

The facts are stated in the opinion of the court.

Honesto K. Bausa for appellant.

Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years

and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C. R. Fuentes streets of the City Of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the clay in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner, That his final objective, once he succeeded in entering the store, was to rob, to, cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.

"It must be borne in mind (I Groizard, p. 99) that in offenses not cosummated the material damages is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation, that is, in favor as well

as against the culprit, and -which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. "

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punishable except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense."

"Considering - says the Supreme Court of Spain in its decision of March 21, 1892-that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: * * *."

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained In the infomatlon: "* * * the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store * * * and that the accused did riot succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused * * *." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U. S. vs. Ostrea, 2 Phil., 93; U. S. vs. Silvano, 31 Phil., 509; U. S. vs. Ticson, 25 Phil., 67; U. S. vs. Mesina, 21 Phil., 615; U. S. vs. Villanueva, 18 Phil., 215; U. S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions,inasmuch as the record shows that several final judgments for robbery and theft have been rendered against himand in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2) ; therefore the penalty corresponding to attempted trespass to dwelling is two degrees lower (art. 51), or,

arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating

circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.

Avavceña, C. J., Abad Santos, Hull, and Vickers, JJ., concur.

Judgment revoked and defendant found guilty of attempted trespass to dwelling.

[GRN L-28548 July l3, 1979.*]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO TOLING ALIAS IKONG, ROGELIO COMETA ALIAS CELIO, CANDELARIO BOLANDO ALIAS DODO, ROLANDO COMETA ALIAS LANDO, EMILIO TOLING AND HILARIO GAHITO, DEFENDANTS, ROGELIO COMETA ALIAS CELIO, ROLANDO COMETA ALIAS LANDO, AND CANDELARIC BOLANDO ALIAS DODO, defendantsappellants. themselves are indicative of their spontaneity and the truth. As the narration of facts in the extrajudicial confessions of Bolando and Cometa will show, the essential details, except for the alleged plot to kill Isabelo Caseres, when pieced together are identical and reveal a complete story of the entire incident from its inception to its consummation.

RESOLUTION

AN AUTOMATIC REVIEW of the. decision of the Court of First Instance of Zamboanga del Sur. Vicente G. Ericta, J.

The facts are stated in the opinion of the Court.

Solicitor General Felix V. Makasiar and Assistant Solicitor General Conrado T. Limcaoco for appellee.

ANTONIO, J.:

Automatic review of the decision of the Court of First Instance of Zamboanga del Sur, dated December 1, 1967, in Criminal Case No. 3141 in view of the capital punishment imposed on Rolando Cometa, Rogelio Cometa and Candelario Bolando. The sentence reads as follows:

"WHEREFORE, the Court finds Francisco Toling, Rolando Cometa, Rogelio Cometa, Candelario Bolando, and Hilario Gahito guilty beyond reasonable doubt of the crime of Robbery in Band with Homicide, and appreciating the aggravating circumstances of in band, nocturnity, dwelling. and treachery regarding the killing of Isabelo Caseres, with no mitigating circumstance to offset the same, hereby imposes the Death penalty on all the defendants.

"The defendants are further ordered to return the things robbed or pay the value of P59.45 in case of failure to return the same, to indemnity the heirs of Isabelo Caseres, in the amount of P6,000.00 to be borne equally by the five defendants, to suffer the accessory penalties of the law, and to pay the costs."

Originally, six (6) persons were accused of the crime of Robbery in Band with Homicide in an Information filed in the aforesaid court on June 29, 1966, namely: Francisco Toling alias Ikong, Rogelio Cometa, alias Celio, Candelario Bolando, alias Dodo, Rolando Cometa alias Lando, Emilio Toling and Hilario Gahito, but only the three afore-named appellants appeared for the promulgation of the judgment on December 19, 1967, because:

(a) Hilario Gahito died in jail on September 26, 1967 and the case against him was dismissed on December 19, 1967;1

(b) Emilio Toling was not brought to court for trial; the person arrested as Emilio Toling turned out to be Emilio Montillano, and was released from custody;2 and (c) Francisco Toling escaped from the Provincial Jail on December 1, 1967 and was still at large when the sentence was promulgated.3 He cannot be considered to have appealed also because as to him the sentence has not been promulgated.4

The Information wherein the appellants were charged reads.

"The undersigned First Assistant Provincial Fiscal of Zamboanga del Sur, accuses Francisco Toling alias Ikong, Rogelio Cometa alias Celio, Candelario Bolando alias Dodo, Rolando Cometa allas Lando, Emilio Toling and Hilario Gahito, for the crime of Robbery in Band with Homicide, committed as follows:

"That at about 11:45 o'clock in the evening of February 5, 1966, at Barrio Bag-ong Gutlang, Municipality of Molave, Province of Zamboanga del Sur, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating together and mutually helping one another, armed with a home-made shot gun (paliuntod), a 22 caliber homemade revolver (paltik), bolos of different sizes and make, with intent of gain, by means of form and violence against persons and with intent to kill with the use of said firearms, did then and there wilfully, unlawfully and feloniously shot one Isabelo Caseres, thereby hitting and inflicting gunshot wounds in the different parts of his body, which mortal gunshot wounds caused his death shortly thereafter and on the same occasion, the said accused enter the dwelling and/or house of one Francisco Lumpayao, a neighbor of the deceased Isabelo Caseres and once inside, take and carry away his personal household belongings without his knowledge and consent and against his will, to wit:

"Two (2) Pants, One (1) Polo Shirt, Four (4) Ladies Dresses, Two (2) Children's Dresses, Three (3) Books for grade 2 pupils, Four (4) Pieces of Dried Fish, One (1) Flashlight with 3 batteries and cash money in different denominations amounting to One Peso and Sixty Five Centavos P1.65), all things taken constituting a total amount of Eighty (P80.00) Pesos, Philippine Currency, to the damage and prejudice of the said owner Francisco Lumpayao, of the aforesaid amount and also to the damage and prejudice of the Wife and Parents of the said deceased Isabelo, Caseres.

"CONTRARY TO LAW." (CFI Record, p. 1.)

The prosecution sought to establish that at about 11:45 o'clock in the evening of February 5, 1966, the accused, conspiring and confederating with each other, robbed the house of Francisco Lumpayao after mortally wounding Isabelo Caseres who had responded to Lumpayao's call for succor. The evidence consisted of the testimonies of Francisco Lumpayao, Marceline Campomanes and Florentine P. Omandam, and the

extrajudicial statements of Hilario Gahito, Candelario Belando and Rogelio Comets (Exhibits "C", "D", and "E", respectively). To prove the voluntariness and due execution of Exhibits "C", "D" and "E", the prosecution introduced the testimonies of Gualberto B. Bacarro, Municipal Judge of Tambulig, Zamboanga del Sur and Acting Municipal Judge of Molave, Zamboanga del Sur, and Paciano Guillen, Municipal Mayor of the same municipality.

According to Francisco Lumpayao, a 34-year-old farmer, resident of Bag-ong Gutlang, Molave, Zamboanga del Sur, at about 11:45 o'clock in the evening of February 5, 1966, he was awakened by the barking of his two dogs at the porch of his house. Peeping through a hole on the wall, he saw near his house four (4) persons, namely Francisco Toling and Candelario Belando, who were astride his carabao, and the other two, Rolando Cometa and Hilario Gahito, who were standing nearby. Those astride the carabao, were trying to reach for the chickens on the eaves of the roof of his house. Upon seeing this, he shouted: "Robbers! Robbers!". Because of his shouts, the four persons scampered about the premises as far as nine (9) meters away from his house. Shortly thereafter, he saw Isabelo Caseres. a neighbor of his, walking towards his house. He called Isabelo and warned him of the robbers, but as Isabelo was about three (3) meters from his house, he was shot by Francisco Toling with a shotgun. Isabelo fell to the ground. Upon seeing this tragic turn of events. he (Lumpayao), together with his wife, Rosario Larawan, and their children, jumped out of their house and ran towards the house of Florencio Caseres, father of Isabelo, about six hundred (600) meters away. On the way, they met Maria Caseres, wife of Isabelo, who was also running towards her father-in-law's house because she heard a shot. When they reached the house of Florencio Caseres, he shouted: "Compadre, Isabelo was shot." They then proceeded to hide among the bushes nearby.

Early in the following morning, Francisco Lumpayao returned to his house only to discover in the yard his trunk, which in the evening before was inside his house, already emptied of its contents, namely: two (2) pairs of pants, two (2) lady's dresses, four (4) children's dresses, a flashlight, a necklace, a pair of earrings, and cash in the amount of P1.65. He also found out that three (3) of the books of his children were taken. In that same morning, at about 6:00 o'clock, Lumpayao saw the remains of the late Isabelo Caseres lying in state in the house of Florencio Caseres.

Marcelino Campomanes, farmer, 34 years of age, and resident of Barrio Arioga, Molave, Zamboanga del Sur, testified that at about 12:30 o'clock in the evening of February 5, 1966, while he was inside his house at the said barrio, he heard the barking of three dogs. Peeping through the little opening of the window, he saw two horses running fast, with two persons riding on each horse. When the horses got near his house, the riders dismounted and made their horses fight his horse. Thereafter, three of the four persons walked toward his house while the fourth continued to watch the horses fighting. He noticed that the three persons who went near his house were armed. He recognized them as Francisco Toling, who was armed with a gun, Hilario Gahito and "Basilio"* Cometa. He did not recognize the fourth man because he was quite far. He was able to recognize the three men because the moon was bright - there was a full moon - and the sky was not cloudy. After about half an hour, the group left. He added that his place was about two (2) kilometers away from Barrio Bag-ong Gutlang, the situs of the crime.

At about 1:00 o'clock in the afternoon of the following day, February 7, 1966, Mr. Florentine Omandam, Provincial Sanitary Inspector of Zamboanga del Sur, upon the request of the Chief of Police of Molave,

examined the remains of Isabelo Caseres. After the examination, he issued a Medico-Legal Report (Exhibit "A"), showing the cause of death of Isabelo as massive hemorrhage, secondary to the six (6) thru and thru bullet wounds. He also issued the death certificate of Isabelo Caseres (Exhibit "B").

On the other hand, the- defendants presented their defense consisting of denials and alibis. Hilario Gahito, Candelario Bolando and Rogelio Cometa repudiated their respective extrajudicial statements, all contending that they were mauled or maltreated into signing the same. Anent their alibis, Rolando Cometa, Rogelio Cometa and Francisco Toling tried to prove that on the night in question, they were in the house of Francisco Apa in Barrio Moyo, Buug, which is 131 kilometers from the scene of the crime; Candelario Bolando testified that he was in his house at Barrio Ebarle, Tambulig, 30 kilometers from Bag-ong Gutlang; and Hilario Gahito declared that he was at his house in Barrio Ariosa.

The prosecution presented rebuttal evidence and thereafter the case was submitted for decision.

When the trial court was preparing its decision it discovered that the Fiscal inadvertently omitted to present as evidence the admission of Rogelio Cometa. Hence, the court, motu proprio, ordered the reopening of the case to enable the Fiscal to offer in evidence the extrajudicial statement of Rogelio Cometa. Thereafter, the case was submitted anew for decision.

In convicting appellants Rolando Cometa, Rogelio Cometa and Candelario Bolando, the trial court appears to have relied principally on the extrajudicial statements of Hilario Gahito, Candelario Bolando and Rogelio Cometa (Exhibits "C", "D" and "E", respectively).

According to Gahito, he was compelled to join the group at 6:00 p.m., February 5, 1966 by Rogelio Cometa to go to Barrio Bag-ong Gutlang; that upon nearing the house of Francisco Lumpayao, Rogelio Comets rode on one of the carabaos of Lumpayao, while his four companions - Francisco Toling, Candelario Bolando, Emilio Toling and Rolando Comets - approached the house, but suddenly the dogs began to bark; that the owner of the house woke up and shouted for help, and a few minutes later, a man went down an adjacent house; that it was at this juncture that Francisco Toling fired his shotgun at the man. As he got scared he ran away (Exhibit "C").

Candelario Belando stated in his sworn statement (Exhibit "D") that while he was inside his house at about 4:30 o'clock in the afternoon of February 5, 1966, a friend of his by the name of Francisco Toling came and invited him to go with him to Barrio Bag-ong Gutlang. He inquired what was their purpose and Toling just said: "Let us go," and as he was afraid he might get mad at him, he did not hesitate to go with him. His companions in going to Barrio Bag-ong Gutlang were Francisco Toling, Rogelio Cometa, Emilio Toling and Rolando Cometa. On their way to said barrio, they met another person whom he came to know later to be Hilario Gahito, and whom they also invited to go with them. When Gabito refused, Rogelio Comets. threatened to kill him. Rogelio Cometa was armed with a .22 Caliber "paltik", Emilio Toling with a bolo, Francisco Toling with a home-made shotgun; Rolando Cometa with a bolo, while he also carried a bolo, They arrived near the house of Francisco Lumpayao in Barrio Bag-ong Gutlang at about 11:00 o'clock in the night. Upon arrival, they saw Francisco's carabao nearby, Rogelio Comets: mounted the carabao. Suddenly, the dogs began barking and the owner of the house was awakened and shouted for help from his neighbor. A few minutes later, a

person whose name he came to know later on as Isabelo Caseres came and Francisco Toling shot him. He saw the victim fall down groaning with pain. Later, the owner of the house, Francisco Lumpayao, with his family, left their house. He got out of Ins biding place and at that juncture, Rolando Cometa, Rogelio Corneta and Emilio Toling went up the stairs of said house while he and Francisco Toling remained on the ground. After that they all went home. Rogelio Cometa burned some books and other papers, and some pants and dresses which were taken from the house of Lumpayao because they might be found in their possession. Out of the amount of P1.60 which they got, his share was Fifty Centavos (P0.50), while Francisco Toling got a necklace. He further stated thereon that the shotgun used by Francisco Toling was borrowed by Rogelio Cometa from one Fabian Cometa, father of Rogelio.

Rogelio Cometa narrated in his extrajudicial statement (Exhibit "E") that on the night of February 5, 1966, he was in formed by his brother-in-law, Francisco Toling, that he was hired by his father-in-law, Magno Sejuela, to kill one Isabela, Caseres of Barrio Bag-ong Gutlang because they had a misunderstanding. Francisco Toling told him that he was hired to kill for P250.00 so that Toling promised him P50.00 if he would go with him. He agreed. Toling was armed with a home-made shotgun, Dodo Bolando with a bolo, Emilio Monillano with a bolo, he brought with him a .22 Caliber revolver (homemade), while his brother, Rolando Cometa, was unarmed. Thus, he testified "Q. -What time did you arrive in Barrio Bag-ong Gutlang?

A.-I think its around 11:45 o'clock in the evening, more or less, but the moon was very shiny due to good weather on that particular time.

Q.-How come that said Francisco Toling was able to shoot and kill Isabelo Caseres?

A.-That upon arrival near the house of his neighbor, whose name later known to be Francisco Lumpayao, we tried to make noise with the carabao to let him come down until the dogs of said Francisco Lumpayao barked and barked and the said owner of the dogs was awakened, so that ht shouted toy help thinking that we are robbers. and for that instant, Isabelo Caseres came down from his house, and Francisco Toling who was aiming already waiting for him to come down fired him a shot and I am sure he was hit because he fell on the ground shouting, for pains, and on that instant. Francisco Lumpayao and his family run down from their house to make their escape, so that some of us came upstairs and robbed the house.

Q.-You have stated that you were only hired by your father-in-law, have you received the said amount of money?

A.-None, sir. we did not receive the P250.00.

Q.-Why?

A.-After the incident, said Magno Swela evacuated with his family and we were not able to am them, especially that we were wanted and we were always hicling ourselves from the Molave police.

Q.-Why are you here in the office of the Chief of Police of this municipality?

A.-I was arrested while I was sleeping in the house of my parents at Barrio Ariosa this municipality by a team of local police.

Q.-Are there any attempts of local police to arrest you and you were able to nuke good your escape?.

A.-Yes, sir, there are many times already, and one is that in Ozamiz City where Rogelio Bretania and his companion went inside the ship (VICTOR) and I am to see them first, so that I was able to escape from them." (Exhibit "E", CFI Record. pp. 62-63).

In connection with the execution of the extrajudicial statement of Candelario Bolando, Gualberto B. Bacarro, Acting Municipal Judge of Molave, Zamboanga del Sur, testified that when the prepared statement of Candelario Bolando was brought to him at his office (Exhibit "D"), he read the statement sentence by sentence and interpreted the same in Visayan, a dialect understood by Bolando; that after he had read a paragraph, he would ask Bolando whether his statement was true and the latter would answer in the affirmative, after which the same was signed by appellant. He declared that the aforesaid prepared statement was brought to his office by Sgt. Bretania of the Molave Police Force, and that the latter was present when the same was read and translated to appellant.

At the hearing on October 2, 1967, Mayor Guillen testified that on October 13, 1966, the statement of Rogelio Cometa (Exhibit "E") was brought to him by Sgt. Bretania. He translated the contents thereof to Cometa, from English to Visayan and asked him whether the contents thereof were true and correct. It was only when he was satisfied that Cometa understood the same and affirmed that it was voluntarily given that he allowed appellant Cometa to sign the document and afterwards he administered the oath to him.

In their brief, appellants contend, among others, that the trial court erred in reopening motu proprio the proceedings after the case had been submitted for decision, simply to enable the prosecution to present evidence which it overlooked or failed to submit at the trial; that the trial court erred in admitting and relying upon the confessions of Hibuio Gahito. Candelario Bolando and Rogelio Cometa as competent evidence against each other and as against their co-accused Rolando Cometa; and that the trial court erred in holding that the crime committed was Robbery in Band with Homicide under Article 294, paragraph 1 of the Revised Penal Code.

With reference to the reopening of the proceedings after both sides had rested and the case submitted for decision, We hold that the trial court was not in error. As early as in 1907, this Court held in U. S. v. Cinco,5 that "judges of the Courts of First Instance are judges of both fact and law, and after all the evidence adduced by the attorneys, if the court is not satisfied, we see no reason why he should not be permitted to call additional witnesses for the purpose of satisfying his mind upon any questions presented during the trial of the case." Also, in U.S. v. Base, et al.,6 it has been held that "if the lower court is not satisfied with the evidence adduced by the attorneys in criminal cases, with reference to a particular point, lie may, on his own motion, call additional witnesses or recall some of the same witnesses, for the purpose of satisfying his mind with reference to particular facts involved in the case."

As to the confessions of Candelario Bolando and Rogelio Comets, We find them to have been freely and voluntarily executed. For one thing, the confessions themselves are in. dicative of their spontaneity and the truth. As the narration of facts in the extra-judicial confessions of Bolando and Cometa will show, the essentials details, except for the alleged plot to kill Isabelo, Caseres, when pieced together are identical and reveal a

complete story of the entire incident from its inception to its consummation.

Thus, the initial meeting between Francisco Toling and Candelario Bolando at 4:30 p.m. on February 5, 1966 wherein Bolando was induced by Toling to go with him to Barrio Bag-ong Gutlang; the subsequent meeting between Toling and his brother-in-law, Rogelio Cometa, where Francisco Toling induced Rogelio Cometa, to go with him to Barrio Bag-ong Gutlang to kill one Isabelo, Caseres who had a misunderstanding with his (Rogelio's) father-in-law, for which reason he (Toling) was hired by Rogelio's father-in-law to kill Isabelo, and Toling's promise to Rogelio Cometa that he would pay him P50.00; their trip to Barrio Bag-ong Gutlang and the recruitment along the. way of Rolando Cometa, Hilario Gahito and Emilio Montillano;7 the circumstance that Rogelio Cometa was armed with a .22 Caliber revolver, Francisco Toling with a homemade shotgun, Emilio Montillano with a bolo, while Rolando Cometa, and Candelario Bolando had none; the events that transpired upon their arrival near the house of Francisco Lumpayao at about, 11:00 o' clock in the evening of that; date-such as the barking of the dogs and the shooting of Isabelo Caseres-which dovetail with the testimony of Francisco Lumpayao. The aforesaid statements contain only minor and somewhat contradictory details. Thus, one said Rolando Cometa had a bolo, while the other said he was unarmed. Bolando stated that he did not know the purpose of their mission and only was told along the way that they were going to rob Lumpayao, while Rogelio categorically declared that their purpose was to kill Isabelo. There were also exculpatory statements, such as the attempt of each declarant to show that not one of them committed any overt act, either in the killing of Isabelo, or in the robbery in the house of Lumpayao. The disclosure of such details which only the declarants could have known, and the improbability that such details could have been concocted by the police, the failure of the appellants to complain to the municipal judge and the mayor before whom the confessions were sworn, the evident attempt of each declarant to exculpate himself, their delay in complaining to the authorities about their alleged maltreatment, demonstrate clearly that their claim of maltreatment was an afterthought and their said confessions were freely and voluntarily made.

Under the facts, the extrajudicial confessions of appellants Rogelio Cometa and Candelario Bolando should have been admissible only against said declarants and not as the basis for the conviction of Rolando Cometa. The rule on interlocking confessions is - 'where extrajudicial confessions has been made by several persons charged with a conspiracy and there could have been no collusion with reference to the several confessions, the fact that the statements are in all material respects identical is confirmatory of the testimony of an accomplice."8 In other words, such extrajudicial declarations may, under certain conditions, be taken into consideration as a circumstance in judging the credibility of the testimony of an accomplice. In the case of Rolando Cometa, there is no testimony implicating said appellant which the aforesaid extra-judicial confessions would confirm or corroborate.

We agree with the appellants that they should not be convicted of Robbery in Band with Homicide. Rogelio Cometa positively declared that for a price of P50.00, he joined Francisco Toling in the latter's plan to kill Isabelo Caseres of Barrio Bag-ong Gutlang in consideration of a reward of P250.00 promised by Magno Sejuela who wanted Isabelo Caseres to be killed. Relating this declaration with the shooting and killing of Isabela, Caseres by Francisco Toling, We cannot escape the conclusion that indeed the purpose of the group was to kill Caseres. In this connection, We hasten to state that while Candelario Bolando stated that he was told

along the way that their purpose was to rob Francisco Lumpayao, said statement cannot prevail over the positive declaration of Rogelio Cometa. as to their purpose, it appearing that Francisco Toling, who did the killing, and his brother-in-law, Rogelio Cometa, were the ones who organized and led the group in the criminal enterprise. It is not improbable that they did not immediately reveal to Bolando their criminal purpose in order to induce the latter to go with them. They were the leaders, while Candelario was merely a minor follower. Indeed, the actuations of the appellants indicated that the robbery was an afterthought which arose only when they saw that Lumpayao and his family have, because of fear, abandoned their house.

The rules is that where the original design comprehends robbery in a dwelling, and homicide is perpetrated with a view to the consummation of the robbery, the crime committed is the complex offense of robbery with homicide even though homicide precedes the robbery by an appreciable time. If the original design was not to commit robbery but robbery was committed after the homicide as an afterthought as a minor incident in the homicide, the criminal acts should be viewed as constitutive of two distinct offenses and not as a single complex offense.9

The rule is that where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the defendant can be convicted of the other. 10 Where the defendant is charged with robbery with homicide, he may be convicted of one of them. 11

Likewise, when a person is charged with a crime and the evidence does not show that he is guilty of the crime charged, but does show that he is guilty of some lesser offense, the court may sentence him for the lesser offense provided the lesser offense is a cognate offense and is included in the complaint filed with the court. 12

In the instant case, it should be noted that the crime charged was Robbery with Homicide, which being a special complex crime is definitely higher than the single crimes of homicide and robbery. 13

If there is no express or implied conspiracy among two or more persons taking part in the commission of the crime, then their liability is regarded as individual or separate. Here, conspiracy has not been sufficiently proven. It does not appear that the appellants had a common plan or common criminal design. According to Bolando's extrajudicial confession, he went along with Toling because he was afraid to displease the latter. It was only when they were on their way to the barrio that he learned that the purpose was to rob one Francisco Lumpayao. Rogelio Cometa, however, in his extrajudicial confession maintained that his purpose with Francisco Toling was to kill Isabelo Caseres. Neither could conspiracy be inferred from the acts of Candelario Bolando or Rolando Cometa, since the two had not cooperated in any manner with Francisco Toling and Rogelio Cometa for the realization of the latter's criminal purpose. Candelario Bolando and Rolando Cometa could and therefore, be held responsible for the death of Isabelo Caseres. Considering, however, that Bolando admitted that after knowing that they were going to rob someone he still went with them to Barrio Bag-ong Gutlang and although he did on directly participate in the robbery he gave moral encouragement to them with his presence and shared in the loot in the amount of Fifty Centavos (P0.50), he should be criminally responsible as an accomplice for the crime of robbery.

An accomplice is one who cooperates in the execution of the crime as previous or simultaneous acts, provided that he has not taken direct part

in the execution of the crime or forced or induced latters to execute it, or cooperated in its perpetration by an respensable act. The crime committed is robbery with force uponthings, since the trunk of the offended party was taken from his house and forcibly opened in the yard.14 Pursuant of the fifth paragraph of Article 299 of the Revised Penalties when the value of the property taken does not exceed Two Hundred Fifty Pesos (P250.00), the penalty for the offense in prision mayor. The impossable, penalty on appellant Bolado is the penalty next lower in degree than that prescribed by law for the consummated felony,15 which in the instant case should be prision correccional to be applied in its medium period in the absence of any aggravating or mitigating circumstance.

In the case of appellant Rogelio Cometa, he admitted he agreed to the offer of Francisco Toling that if he would go with him to all Isabelo Caseres he would be paid P50.00 (Exhibit "E"). As a matter of fact, he went with Toling after arming himself with a Caliber .22 home-made gun. On the way to Barrio Bag-ang Gutlang, he even forced Hilario Gahito to join them. He was with Toling when the latter treacherously shot Isabelo Caseres. He should, therefore, be liable as a co-principal the crime of homicide, since the crime of murder is not necessarily included in the information for robbery with homocide.

It appears also from the evidence that it was Rogelio Cometa who went up and ransacked the trunk of the Lumpayaos. He is, therefore, guilty as a principal in the crime of robbery, defined and penalized by Article 299, paragraph b, subparagraph 2, of the Revised Penal Code.

Upon the other hand, Rolando Cometa cannot be held criminally responsible as principal of either the crime of homicide or robbery since there is no direct proof that he conspired with his co-appellants or directly participated in the commission thereof. He cannot also be held criminally responsible as an accomplice. In order to hold one liable as an accomplice, it is essential that it be proved beyond reasonable doubt that between the supposed accomplice and the principal, there is community of criminal purpose which implied that it be shown that the supposed accomplice committed the acts imputed to him with the intention to help morally or materially in the commission of the crime.16

Here, it has not been convincingly established that appellant Rolando Cometa, knowing of the criminal purpose, has given aid or encouragement, either morally or materially, in the commission of the crime. Such circumstances being absent, his mere presence at the scene of the crime does not make him an accomplice.17

ACCORDINGLY, the judgment of the court a quo is hereby modified as follows:

(a) finding Rogelio Cometa alias Celio guilty beyond reasonable doubt of the crimes of Homicide, aggravated by treachery, and of Robbery, and imposing upon him for the crime of Homicide, an indeterminate penalty ranging from eight (8) years of prision mayor as the minimum to eighteen (18) years of reclusion temporal as the maximum, and ordering him to indemnify the heirs of Isabelo Caseres in the amount of P12,000.00; and for the crime of Robbery, an indeterminate penalty ranging from four (4) years and two (2) months of prision correccional as the minimum, to eight (8)

years and one (1) day of prision mayor as the maximum, and to indemnify Francisco Lumpayao in the amount of P200.00;

(b) finding Candelario Bolando alias Dodo guilty as an accomplice in the crime of Robbery and sentencing him to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as the minimum, to two (2) years, four (4) months and one (1) day of prision correccional as the maximum of the penalty, and to indemnify Francisco Lumpayao in the amount of One Hundred Pesos (P100.00), without prejudice to the provisions of Article 110 of the Revised Penal Code; and (c) Rolando Cometa alias Lando is hereby ACQUITTED on the ground of reasonable doubt, with proportionate part of the costs de oficio.

The period of preventive imprisonment shall be deducted from the term of imprisonment of Rogelio Cometa and Candelario Bolando, pursuant to Article 29 of the Revised Penal Code, as amended.

With costs against appellants.

SO ORDERED.

Fernando C.J., Barredo, Concepcion Jr., Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio Herrera, JJ., concur.

Teehankee, J., took no part.

Makasiar and Aquino, JJ., did not take part.

1. Order dated December 19, 1967, CFI Record, p. 125.

2. Order dated October 1, 1966, CFI Record, p. 53-A.

3. Order dated December 19, 1967, supra.

4. People v. Jaranilla, L-28547, Feb. 22, 1974, 55 SCRA 563.

* "Basilio" is Rogelio Cometa (Exhibit "C").

5. No. 3664, August 17, 1907, 8 Phil. 388.

6. No. 3961, October 12, 1907, 9 Phil. 48.

7. As mentioned in the affidavit of Rogelio Cometa (Exhibit "E"). In the affidavit of Candelario Bolando, Exhibit "D"), he is referred to as Emilio Toling.

8. People v. Badilla, No. 23792, Feb. 17, 1926, 48 Phil. 718.

9. "From the fact that the killing and the robbery did not take place in the same place, the appellants contend that the crime committed cannot be robbery with homicide. But it appears from the facts proved that appellants had the intention of robbing Omblero when their leader asked him for money and threatened him with death if he refused and that after shooting him down and thus eliminating an obstacle to the effectuation of their unlawful design, they repaired to his house, which was nearby, and by force, took his money therefrom. It is thus clear that the killing and the robbery are not isolated acts, for there is a direct connection between the two. The killing sprang from the idea of robbing and was but a step in the perpetration of the robbery. In the circumstances, we have no hesitation in saying that the killing was done by reason or on the occasion of the robbery, so that appellants are guilty of the special complex crime of robbery with homicide (Article 294, paragraph 1, Revised Penal Code).

"When there is direct relation and intimate connection between the robbery and the death of the owner of the property stolen, by reason of the death having preceded the robbery and of the fact that the crime sprang from the idea of robbery, the accused beginning the criminal act by killing their victim, such crimes cannot be separated into two distinct crimes of robbery and of homicide or murder, nor consequently, can the criminal liability of the defendants be divided in accordance with such participation as they may have had in one part of the crime or the other, nor can they be sentenced for the crime of robbery independently of that of homicide or murder. In other words, if there is a direct relation, an intimate connection between the robbery and the killing whether the latter be prior or subsequent to the former, or whether both crimes be committed at the same time - it is unquestionable that they constitute the complex crime defined in article 294, paragraph 1, of the Penal Code." (Guevara, Revised Penal Code, p. 576, citing People v. Hernandez, 46 Phil. 48; People v. Napoleon Libre, 93 Phil. 5, 8.).

10. U. S. v. Lahoylahoy, et al., No. 12453, July 15, 1918, 38 Phil. 330.

11. U. S. v. Paddit, et al., No. 583, Oct. 15, 1902, 1 Phil. 426.

12. U. S. v. Nery, No. 1989, Jan. 22, 1905, 4 Phil. 158; People v. Castillo, CA-No. 227, Feb. 1, 1946, 76 Phil. 72.

13. U. S. v. Abelinde, et al., No. 945, Dec. 19, 1902, 1 Phil. 568; People v. Andam, L-11383, April 30, 1958 (Unrep.), 103 Phil. 1129; People v. Mori, L-23511 & L-23512, Jan. 31, 1974, 55 SCRA 382.

14. Article 299, par. b, sub-par. 2, of the Revised Penal Code.

15. Article 52, Revised Penal Code.

16. People v. Tamayo, No. 18289, Nov. 17, 1922, 44 Phil. 38.

17. People v. Madera, L-35133, May 31, 1974, 57 SCRA 349.

* Justice Felix V. Makasiar did not take part, as he was then the Solicitor General.

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANIEL QUIJADA Y CIRCULADO, ACCUSED-APPELLANT.

APPEARANCES OF COUNSEL Solicitor General for plaintiff-appellee.

Alberto Y. Bautista for accused-appellant,

D E C I S I O N DAVIDE, JR., J.:

Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch I of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations. viz., murder under Article 248 of the Revised Penal Code

and illegal possession of firearm in its aggravated form under P.D. No, 1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as minimum, to twenty years and one day, as maximum, for the second crime.1

The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with the doctrine laid down in People vs. Tacan,2 People vs. Tiozon,3 People vs. Caling,4 People vs. Jumamoy,5 People vs. Deunida,6 People vs. Dongco,7 People vs. Fernande,8 and People vs. Somooc,9 or to modify the judgment and convict the appellant only of illegal possession of firearm in its aggravated form pursuant to People vs. Barros,10 which this Court (Second Division) decided on 27 June 1995.

The informations read as follows:

CRIMINAL CASE NO. 8178

That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without any justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38 cal. revolver, while the victim was unarmed, suddenly attacked the victim without giving the latter the opportunity to defend himself, and with evident premeditation, the accused having harbored a grudge against the victim a week prior to the incident of murder, did then and there willfully, unlawfully and feloniously attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head and causing serious injuries which resulted to his death; to the damage and prejudice of the heirs of the deceased.

Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime.11

CRIMINAL CASE NO. 8 17 9

That on or about the 30th day of December, 1992. in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess the said firearm from competent authorities which firearm was carried bv the said accused outside of his residence and was used 63, him in committing the crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the Republic of the Philippines.

Acts committed contrary to the provisions of P.D. No. 1866.12

Having arisen from the same incident, the cases were consolidated, and Joint hearings were had. The witnesses presented by the prosecution were SP04 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO Gondalino Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Nistat, Julius Bonao, Saturnino Macylupay, and the appellant himself.

The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the Appellee as follows:

On 25 December 1992. a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the latter was constantly annoying and pestering the former's sister, Rosita Iroy (TSN, Crim. Cases 8178 & 8179. June $. 1993, pp. 32-35- August 5. 1993, pp. 14 -15).

In the evening of 30 December 1992, another benefit dance/ disco was held in the same place. This benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy.

While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene Nesnea and Largo troy, who xere then sitting at the plaza (the area where they positioned themselves was duly lighted and was approximately four meters from the dancing hall), decided to just watch the activities in the dance hall directly from the plaza,

After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita Troy saw appellant surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the head. This caused Rosita lroy to spontaneously shout that appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield,

Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate incident (TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs).

At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they were unable to locate appellant on that occasion (TSN, CrIm. Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6).

In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid., p. 14, June 14, 1993, pp. 4-6).13

The slug was embedded at the midbrain.14 Diosdado Iroy died of Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot wound, I cm. left occipital area, transacting cerebellum up to midbrain.15

The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of licensed firearm holders in the province16 and was not authorized to carry a firearm outside his residence.17

The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:

Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December 30, 1992 he was in their house. At 6:00 o'clock in the afternoon he went to Tagbilaran City together with Julius Bonao in a tricycle No. 250 to solicit passengers. They transported passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV Cebu City that docked at 12: 10 past midnight. They had a talk with Saturnino Maglopay who was waiting for his auntie scheduled to arrive aboard MV Cebu City. They were not able to pick up passengers which, as a consequence, they went home. They had on their way home passengers for the Agora Public Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he passed the night. He went home to Mariveles. Dauis, Bohol at 9: 00 o'clock in the morning.18

The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the head while the latter was watching the dance, The dispositive portion of the decision dated 30 September 1993 reads as follows:

PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost.

In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law and to pay the cost.

The slug or bullet which was extracted from the brain at the back portion of the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of the government,

It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the full time he has undergone preventive imprisonment to be deducted from the term of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from his term of sentence if he has not executed a waiver.19

On 29 October 1993, after discovering that a had inadvertently omitted in the decision an award of civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son and P10,000,00 for funeral expenses.20 The order was to form an integral part of the decision.

The decision was promulgated on 29 October 1993.21

The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred:

I IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE NIGPARANON.

II IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED ARANZADO. AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO ... IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.22

The appellant then submits that the issue in this case bolls down to the identity of the killer of Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him on the night of 25 December 1992 because he allegedly "bothered her." He further asserts that Rosita could not have seen the person who shot Diosdado considering their respective positions, particularly Rosita who, according to defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only after Diosdado was shot. And, the appellant considers it as suppression of evidence when the prosecution did not present as witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot.

As to SP04 Nigparanon, the appellant intimates improper motives in that the said witness is a neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the appellant. The appellant further claims of alleged nmi.cvzinns and unexplained entries in the police blotter.

Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his conduct in voluntarily going to the police station after having been informed that he, among many others, was summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy - specially so if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado Iroy.

In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we affirm in toto the challenged decision.

After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal to be absolutely without merit.

The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December 1992. It is then logical and consistent with human experience that it would be the appellant who would have forthwith entertained a grudge, if not hatred, against Diosdado. No convincing evidence was shown that Rosita

had any reason to falsely implicate the appellant in the death of her brother Diosdado.

The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the assailant:

QYou said that you were initially dancing inside the dancing place and you went out, about what time did you get out?

A11:00 o'clock.

QAnd you were standing about two (2) meters from Diosdado Iroy until 11: 30 when the incident happened?

AYes, I was standing.

QAnd where did you face, you were facing Diosdado Iroy or the dancing area?

AI was intending to go near my brother. I was approaching and getting near going to my brother Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado lroy.23

xxxxxx xxx QAnd in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to the dancing place?

AMore or less four (4) meters distance.

COURT:

From the dancing hall?

AYes, your honor.

QAnd in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?

AYes, sir.

QWhat kind of light illuminated the place?

AI do not know what kind of light but it was lighted.

QWas it an electric light?

AIt is electric light coming from a bulb.

QWhere is that electric bulb that illuminated the place located? I AIt was placed at the gate of the dancing place and the light from the house.

QYou said gate of the dancing place, you mean the dancing place was enclosed at that time and there was a gate, an opening?

AYes, sir.

QWhat material was used to enclose the dancing place?

ABamboo.

QAnd how far was the bulb which was placed near the entrance of the dancing place to the place where Diosdado Iroy was sitting?

AFive (5) meters.

QYou mentioned also that there was a light coming from the house, now whose house was that?

AThe house of spouses Fe and Berto, I do not know the family name.

QWas the light coming from the house of spouses Fe and Berto an electric light?

AYes, sir.

QAnd in your estimate, how far was the source of light of the house of Fe and Berto to the place where Diosdado Iroy was sitting?

AAbout six (6) meters distance.24

xxxxxx xxx QWhat was the color of the electric bulb in the gate of the dancing place?

AThe white bulb.25

The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:

The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and deportment of witnesses while listening to them speak (People vs. Magaluna, 205, SCRA 266).

thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect. For, the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply;26 or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.27 The appellant has miserably failed to convince us that we must depart from this rule.

Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In the first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that of Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative or where the witness is available to the accused.28

The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the Iroy; remains purely speculative, as no

evidence was offered to establish that such a relationship affected SP04 Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the performance of his official duty.29 As to the alleged omissions and unexplained entries in the police blotter, the same were sufficiently clarified by SP04 Nigparanon.

The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the positive identification of the accused.30 Besides, for that defense to prosper it is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.31 As testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine kilometers away from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a tricycle.32 It was, therefore, not physically impossible for the appellant to have been at the scene of the crime at the time of its commission.

Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded to the police station. This argument is plain sophistry. The law does not find unusual the voluntary surrender of offenders, it even considers such act as a mitigating circumstance.33 Moreover, nonflight is not conclusive proof of innocence.34

The evidence for the prosecution further established with moral certainty that the appellant had no license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of Section I of P.D. No. 1966, which reads:

SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, 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 firearm, 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.

In light of the doctrine enunciated in People vs. Tac-an,35 and reiterated in People vs. Tiozon36 People vs. Caling,37 People vs. Jumamoy,38 People vs. Deunida,39 People vs. Tiongco,40 People vs. Fernandez,41 and People vs. Somooc,42 that one who kills another with the use of an unlicensed firearm commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of firearm under the second paragraph of Section I of P.D. No. 1866, we sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.

Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated illegal possession of firearm, they at the same time laid down the rule that

these are separate offenses, with the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar against double jeopardy will not apply. We observed in Tac-an:

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.

And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm.

In Dozon, we stated:

It may be loosely said that homicide or murder qualifies the offense penalized in said Section I because it is a circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the "'upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x." In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248

(Murder) or Article 249 (Homicide) of the Revised Penal Code.

The accused cannot plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special law while the second,

homicide or murder, is punished by the Revised Penal Code.

In People vs. Duriguez, [24 SCRA 163, 171], We held:

It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is not obstacle to a prosecution of the other, although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other.

In People vs. Bacolod [89 Phil. 621]. from the act of firing a shot from a sub-machine gun which caused public panic among the people present and physical injuries to one, informations of physical injuries through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled:

The protection against double jeopardy is only for the same offense. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other.

Since the informations were for separate offense[s] - the first against a person and the second against public peace and order one cannot be pleaded as a bar to the other under the rule on double jeopardy.

In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the second paragraph of Section I of P.D. No. 1866 can also be separately charged with and convicted of homicide or murder under the Revised Penal Code and punished accordingly. Thus:

It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd paragraph of Sec. 1 of P. D. 1866 as amended," and declaring Caling guilty thereof The legal provision invoked, "Sec. I of P.D. 1866, as amended," reads as follows:

"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 firearm, 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."

What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x." Obviously, possession of any firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To that act is attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use of (such) an unlicensed firearm, a "homicide or murder is committed," the crime is aggravated and is more heavily punished, with the capital punishment.

The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without license. The crime may be denominated simple illegal possession, to distinguish it from its aggravated form. It is aggravated if the unlicensed firearm is used in the commission of a homicide or murder under the Revised Penal Code. But the homicide or murder is not absorbed in the crime of possession of an unlicensed firearm; neither is the latter absorbed in the former. There are two distinct crimes that are here spoken of. One is unlawful possession of a firearm, which may be either simple or aggravated, defined and punished

respectively by the first and second paragraphs of Section I of P.D. No. 1866. The other is homicide or murder, committed with the use of an unlicensed firearm The mere possession of a firearm without legal authority consummates the crime under P.D. No. 1866, and the liability for illegal possession is made heavier by the firearm's use in a killing. The killing, whether homicide or murder, is obviously distinct from the act of possession, and is separately punished and defined under the Revised Penal Code. (italics supplied)

In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second paragraph of Section I of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus:

Coming to the charge of illegal possession of firearms, Section I of P.D. No. 1966 penalizes, inter alia, the unlawful possession of firearms or ammunition with reclusion temporal in its maximum period to reclusion perpetua. However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is committed with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder qualifies the offense because both are circumstances which increase the penalty. It does not, however, follow that the homicide or murder is absorbed in the offense. If these were to be so, an anomalous absurdity would result whereby a more serious crime defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one which is merely malum prohibitum. Hence, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) the violation of Section I of P.D. No. 1866 and (b) the violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while the second - Murder or Homicide - is punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the imposition of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next lower in degree, or reclusion perpetua. (Italics supplied)

In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court categorically declared:

At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information for murder, the offense defined in the second paragraph of Section I of P.D. No. 1866 does not absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does crime. The 1982 decision in Lazaro vs. People, involving the violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tac-an, People vs. Tiozon, and People vs. Caling.

In Somooc, we once more ruled:

The offense charged by the Information is clear enough from the terms of that document, although both the Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a phrase which has sometimes been supposed to connote a "complex crime" as used in the Revised Penal Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is

no complex crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a license or authority for such possession. This offense is aggravated and the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the commission of homicide or murder, offenses penalized under the Revised Penal Code. The killing of a human being, whether characterized as homicide or murder, is patently distinct from the act of possession of an unlicensed firearm and is separately punished under the provisions of the Revised Penal Code.

The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros,43 we set aside that portion of the appealed decision convicting the appellant of the offense of murder and affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following statement:

[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe.

The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as follows:

This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called,

"special complex crimes," which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act

giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another, However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar.

With the foregoing answers to the second question, the third inquiry is more of a question of classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually source from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the "various laws and presidential decrees to harmonize their provision" which "must be updated and revised in order to more effectively deter violators" of said laws.

This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the AntiPiracy and Anti-Highway Robbery Law of 1974 and the AntiCattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against

persons and he becomes a recidivist upon conviction of another crime under the same title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since it is not an aggravating or qualifying circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion.

If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal Case No. 8179.

The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to prosecutions for murder or

homicide and for aggravated illegal possession of firearm in instances where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated in Dozon, Caling, Jumamoy, Deunida, Dongco, Fernandez, and Somooc is the better rule, for it applies the laws concerned according to their letter and spirit, thereby steering this Court away from a dangerous course which could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through Judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the crime of illegal possession of firearm when an unlicensed firearm is used in the commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting Opinion in the case under consideration, Tac-an did not enunciate an "unfortunate doctrine" or a "speciously camouflaged theory" which "constitutes an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense."

If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a convincing number of cases and for a convincing number of years, so must the same verdict be made in our decision in People vs. De Gracia,44 which was promulgated on 6 July 1994. In the latter case, we held that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section I of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements:

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "mololov" bombs for and in behalf of the latter. We accept this finding of the lower court.

The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense of illegal possession offirearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Article 134 and 135 of the Revised Penal Code. There are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific

offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion.

As a matter of fact, in one case involving the constitutionality of Section I of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused. It follows that, subject to the presence of requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section I of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code with variant elements.

We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate doctrine" which is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set aside the "unfortunate doctrine" without any delay to camouflage a judicial faux pas or a doctrinal quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no attack on the latter was necessary as the former merely involved other crimes to which the doctrine in Tac-an might only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it adapted the latter to another category of illegal possession of firearm qualified by rebellion precisely because the same legal principle and legislative purpose were involved, and not because De Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the expanding framework of our criminal law from barnacled ideas which have not grown apace with conceptual changes over time," as the concurring and dissenting opinion charges.

The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws and assails even the ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in that case that warranted an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial legislation and that in the course of such application or construction it should not make or supervise legislation, or under the guise of interpretation modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.45

Murder and homicide are defined and penalized by the Revised Penal Code46 as crimes against persons. They are mala in se because malice or dolo is a necessary ingredient therefor.47 On the other hand, the offense of illegal possession of firearm is defined and punished by a special penal law,48 P.D. No. 1866. It is a malum prohibitum49 which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers, so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not

eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. If intent to commit the crime were required, enforcement of the decree and its policy or purpose would be difficult to achieve, Hence, there is conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent which an accused may have harbored in possessing the firearm.50

A long discourse then on the concepts of malum in se and malum prohibitum and their distinctions is an exercise in futility.

We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting Opinion, to wit:

The second paragraph of the aforestated Section I expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former.

It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty have been divided into two separate offenses of illegal possession and murder with distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has done,

treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1.

The second paragraph of Section I of P.D. No. 1866 does not warrant and support a conclusion that it intended to treat "illegal possession and resultant killing" (italics supplied) "as a single and integrated offense" of illegal possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince an intention to create a single integrated crime. By its unequivocal and explicit language, which we quote to be clearly understood:

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

the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide or murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original

purpose or primary objective of the offender, but a secondary event or circumstance either resulting from or perpetrated on the occasion of the commission of that originally or primarily intended. In the second, the killing, which requires a mens rea, is the primary purpose, and to carry that out effectively the offender uses an unlicensed firearm.

As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated offense or a special complex offense because the death therein occurs as a result or on the occasion of the commission of the offenses therein penalized or was not the primary purpose of the offender, unlike in the second paragraph of Section I of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:

SEC, 3. Penalties. - Any person who commits piracy or highway robbery /brigandage as herein defined, shall, upon conviction by competent court be punished by:

a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.

b. Highway RobberylBrigandage.- The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed. (Italics supplied)

(b) Section 8 of P.D. No. 533 reads in part as follows:

SEC.8. Penal provisions.-Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling. the penalty of reclusion perpetua to death shall be imposed. (italics supplied)

and (c) Section 3 of P.D. No. 534 reads as follows:

SECTION. 3. Penalties.- Violations of this Decree and the rules and regulations mentioned in paragraph (f) of Section I hereof shall be punished as follows:

a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death;

b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided, that if the use of such substances results (1) in physical injury to any person, the penalty shall be imprisonment from 10 to 12 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death; x x x (italics supplied)

The unequivocal intent of the second paragraph of Section I of P.D. No. 1866 is to respect and preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in the first paragraph of Section I - reclusion temporal in its maximum period to reclusion perpetua - to death, seemingly because of the accused's manifest arrogant defiance and contempt of the law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the victim.

Neither is the second paragraph of Section I meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:

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 .... 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.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a crime under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in the definition of the crime and the application of the penalty under the Revised Penal Code.

In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is used in the commission of homicide or murder. To charge the lawmaker with that intent is to impute an absurdity that would defeat the clear intent to preserve the law on homicide and murder and impose a higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide or murder.

Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former." The majority has always maintained that the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form.

What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section I of P,D. No~ 1866 that would make it define and punish a single integrated offense and give to the words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is the rule in statutory construction that if a statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation,51 leaving the court no room for any extended ratiocination or rationalization of the law.52

Peregrinations into the field of penology such as on the concept of a single integrated crime or composite crimes, or into the philosophical domain of integration of the essential elements of one crime to that of another would then be unnecessary in light of the clear language and indubitable purpose and intent of the second paragraph of Section I of P.D. No. 1866. The realm of penology, the determination of what should be criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite crimes.

The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated in People vs. Diaz.53 He then concludes:

In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the

crime is only simple illegal possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder?

In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and socalled special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense or either estafa or falsification; or how the accused convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now before us?

We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the Constitution and which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly distinguished in Yap vs. Lutero,54 from where People vs. Relova55 quotes the following:

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, Section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (italics in the original). The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case

involving the same offense, even if there has been neither conviction nor acquittal in either case.

Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identify of offenses charged. The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged.56 The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved.57

It may be noted that to determine the "same offense" under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States of America which reads:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ....

the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."58

The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines through the Philippine Bill of I July 1902, whose Section 5 provided, inter alia:

[N]o person for the same offense shall be twice put in jeopardy of punishment ....

This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916.59 Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the present Constitution.

This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the second paragraph of Section I of P.D. No. 1866 out of the proscribed double jeopardy principle. For, undeniably, the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or murder, let alone the fact that these crimes are defined and penalized under different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the subject provision would violate the constitutional bar against double jeopardy is unfounded.

The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section

19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in degree, reclusion perpetua, must be imposed.

WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accusedappellant DANIEL QUIJADA y CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.

Costs de oficio.

SO ORDERED.

Padilla, Bellosillo, Melo, Francisco, Panganiban, and Torres, Jr., JJ., concur.

REGALADO, J., concurring and dissenting opinion:

I concur in the majority opinion only insofar as it holds accusedappellant Daniel Quijada y Circulado guilty of the crime of murder with the use of an illegally possessed firearm and punishes him therefor. I confess, however, that I cannot in conscience reconcile myself with the unfortunate doctrine first announced in People vs. Tac-an,1 and now reiterated by the majority, that said appellant should be twice penalized for two supposedly distinct offenses involving (1) the murder of the victim with an illegally possessed firearm, under Presidential Decree No. 1866 and (2) the same murder of that same victim, this time under Article 248 of the Revised Penal Code.

I have heretofore rejected this very same dual verdicts of conviction in my concurring opinion in People vs. Barros,2 which found favor with all my brethren in the Second Division, 'Including Chief Justice Andres R, Narvasa acting as the ponente of the decision in that case and in his capacity as the Chairman of that Division, Indeed, I feel quite strongly that through the play on words that illegal possession of firearm used in a killing is punishable under Presidential Decree No. 1866, while the same killing with the same illegally possessed firearm is separately punished under Article 248 of the Revised Penal Code, we have been beguiled by the semantical tyranny of shifting emphases.

I endeavored to analyze what I considered the error of that approach and thereby expose the speciously camouflaged theory espoused in Tac-an which I believe,

and still do, constitutes an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense. To avoid excursive reading, I quote my humble explanation in Barros somewhat at length:

Under the dispositions heretofore made by the Court involving the crimes of homicide or murder through the use of an illegally possessed firearm, and the same is true with the case at bar, the following queries may be posed:

1. Should the crimes of homicide or murder, which are the end results. be punished separately from and in addition to the liability for illegal possession of the firearm as the instrument Or the means employed?

2. On the other hand, should not the principal sole offense be the aggravated form of illegal possession of a firearm under the second paragraph of Section I of Presidential Decree No, 1866, with the homicide or murder being absorbed therein as an integral element of the crime in its aggravated form?

3. If either homicide or murder and illegal possession Of firearm are so charged in one and the same information, should they be considered and punished as a single offense of homicide or murder with the use of an unlicensed firearm, or as a case of aggravated illegal possession of firearm resulting in homicide or murder, with the death penalty to be imposed in either case?

4. If homicide or murder is charged in a separate information while aggravated illegal possession of firearm is made the subject of a separate indictment filed simultaneously with or prior or subsequent to the former, but with the respective informations on the killing and the illegal possession mutually alleging facts regarding the other offense as an attendant circumstance, should the accused be held liable for two distinct crimes regardless of whether the cases are jointly tried by the same court or separately by the two courts where the informations were independently filed?

On the first question, it is true that from the theoretical concept of the requisite mens rea, the killing as the result of the criminal design arose from a specific criminal intent, that is. the animus interficendi or intent to kill. The illegal possession of the firearm requires a discrete and specific intent to possess the weapon, which is the animus possidendi, coupled with the physical possession thereof.

It would, therefore, appear at first blush that the two offenses having arisen from different criminal intents, this would be, under the philosophical bases for concurso de delitos, a case of material or real plurality under which different crimes have been committed and for each of which a separate criminal liability attaches. The flaw in this approach, however, is that although two crimes have been committed, they are not altogether separate or disconnected from each other both in law and in fact. The illegally possessed firearm having been the weapon used in the killing, the former was at least the necessary, although not an indispensable, means to commit the other.

The situation thus borders closer to the concept of complex crime proper, technically known as a delito complejo, rather than to the postulate of two separate crimes. It is true that former doctrines were to the effect that there can be no complex crime where one of the component offenses is punished by a special law. The rationale therefore was that in a complex crime, Article 48 of the Code prescribes that the penalty shall be for the graver offense to be applied in its maximum period. Since, at that time, the penalties for crimes provided in special laws were not divided into periods, it would be impossible to apply Article 48.

That ratiocination no longer applies now, specifically with respect to the case at bar, since the penalties in Presidential Decree No. 1866 were all taken from the scale of penalties in the Code. The only possible difficulty in this novatory approach would be on the first kind of complex crime, that is, the delito compuesto since it exists "(w)hen a single act

constitutes two or more grave or less gravefelonies." The use of that particular term for the delicts committed bars the application of that form of complex crime to offenses under Presidential Decree No. 1866, since "felonies" are offenses provided and defined in the Code.

That objection would not, however, apply to a delito complejo since it is sufficient therefor that "an offense is a necessary means for committing the other." By these considerations, however, the writer does not mean to imply that a killing through the use of an illegallypossessed firearm is a delito complejo under Article 48 of the Code. As was carefully stated, such an offense merely borders closer to or approximates the concept of a delito complejo, but it thereby emphasizes the thesis that the offenses should not be considered as separate crimes to be individually punished under the principle of material plurality.

This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called "special complex crimes," which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another, However, just like the regular complex crimes and the present case Of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offenses, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto

under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. (People vs. Lasala, L-12141, January 30, 1962, 4 SCRA 61.) The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished cis thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar,

With the foregoing answers to the second question, the third I inquiry is more of a question of classification for purpose of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense,

may be conceded. After D, the plurality of crimes here is actually sourced from the very provisions of Presidential Decree No.

1866 which sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize their provisions" which "must be updated and revised. in order to more effectively deter violators" of said laws.

This would be akin to the legislative intendment underlying the provisions of the, Anti-Carnapping Act of 1972 (R.A. No, 6539, August 26, 1972), wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the AntiPiracy and Anti-Highway Robbery Law of 1974 (P.D. No. 5 3 2. August 8. 1974) and the Anti-Cattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson (Article 320, Revised Penal Code, as last amended by R.A. No. 7659), the principal offense remains as arson although the same becomes a capital offense when inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of it crime against persons and he becomes a recidivist upon conviction, or another crime under the same title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases

and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide Or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since it is not an aggravating or qualifying circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion. (Italics supplied for emphases, with some footnotes in the original. opinion being incorporated in the text by way of documentation)

With appropriate respect for the opinions en contra, take this opportunity not only to elaborate upon and further clarify my aforequoted views in Barros but, hopefully, to also cleanse the expanding framework of our criminal law from ideas which have not grown apace with conceptual changes over time.

My position in Barros is challenged as being a novel theory which sets aside the doctrine followed in some cases previously decided by the Court and the rationale on which they were based. That is understandable, since the inertia of time has always been the obstacle to the virtues of change. That mind-set appears to predominate in the action of the majority in the instant cases.

However, it is precisely for that reason that we are now reviewing those doctrines, as we have done in a number of cases before, instead of taking a stance of infallibility. And, if it does turn out that we are mistaken, then in law and in conscience we must act accordingly, for, as has been said, the beauty of a mistake is that it can be corrected; the tragedy is that it can be perpetuated.

I 1. It is obvious that our present problem had its origin in the aforecited case of People vs. Tac-an where the controversial theory was first laid down that since one offense (illegal possession of an unlicensed firearm) is penalized under a special statute while the other (murder) is punished under the Revised Penal Code, they can be validly prosecuted and punished separately The trial court imposed the death penalty in each of said cases, the offenses having been committed in 1984 with the decision rendered therein in 1986, but this Court modified those sentences to two penalties of reclusion perpetua because of the supervenience of the 1987 Constitution. Significantly, it was explicitly accepted therein that "(a)lthough the circumstance that human life was destroyed with the use of an unlicensed firearm is not an aggravating circumstance x x x it may still be taken into account to increase the penalty to death (reclusion perpetua under the 1987 Constitution) because of the explicit provision of P. D. No. 1866."

2. That mother case of Tac-an gave birth to a progeny of identically-based decisions, the first being People vs. Tioson3 where, in addition to the rationale that the offenses were punished under separate laws, the theory of separate penalties was further sought to be justified thus: "it does not, however, follow that the homicide or murder is absorbed in the offense; otherwise an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum."

3. Next came People vs. Caling4 which is notable for lucidly laying down the distinction between what it categorized for easy reference as the simple and aggrevated forms of illegal possession of unlicensed firearms, although it adhered to the theory of separate offenses where a killing is involved but hewing only to the reason that this is because these offenses are punished by separate laws, as theorized in Tac-an. In Caling, however, the accused was acquitted and no application of penalties was actually made,

4, People vs. Jumamoy5 sustained separate convictions for murder and the aggravated form of illegal possession of an unlicensed firearm on the same rationale as Tioson, with an added advertence to People vs. Doriguez6 that such separate convictions will theoretically not run afoul of the prohibition against double jeopardy.

5. This was followed by People vs. Deunjda7 where, on two charges for murder and aggravated illegal possession of firearms, the accused was convicted only of the latter offense since the prosecution withdrew the charge for murder. The Court, in this case, considered the withdrawal of the indictment for murder as erroneous on the bases of the doctrines in Tac-an, Caling and Tioson,

6. In People vs. Somooc,8 the accused who committed homicide with the use of an illegally possessed unlicensed firearm was charged with and convicted of the aggravated form of illegal possession and punished by reclusion perpetua since the offense was committed in 1988. The Court called attention to the doctrine and ratiocination in Caling.

It will, therefore, be observed that "the settled ruling in the aforementioned cases" is actually a skein drawn from the same single thread originally introduced by Tac-an and stitched into the Jurisprudential fabric with some permutative designs. It is not necessarily "unfortunate if we should suddenly depart therefrom" where the benefit of a second view and the grace of hindsight dictate such a course of action.

The Court will recall the series of cases, when the proscription against the imposition of the death penalty was still upon us, wherein we initially provided in our decisions different and inconsistent rules on the proper periods of the penalty for murder, at that time punishable by reclusion temporal in its maximum period to death. We eventually settled on reclusion perpetua as the medium period.9 Of more recent memory was the spate of conflicting. positions on the penalty for illegal possession and traffic in dangerous drugs, and the amendments brought about by Republic Act No. 7659, until we arrived at a solution in People vs. Simon.10 Nobody was heard to complain that we were running afoul of the doctrine of stare decisis, as now appears to be the stance of the majority.

Indeed, if hard cases make bad law, bad law also makes hard cases, whether what is involved is statutory or case law. Of course, in discharging our duty of judicial interpretation, there may be not only merit but also facility, if not the expediency of the slothful path of least resistance, in just adopting the rule of uniformity on the bases of past decision. But, equally as commendable as the doctrine of stare decisis itself, is the wellknown and ancient wisdom in the reminder that such doctrine does not mean blind adherence to precedents.

Obviously, because of the reasoning in Tac-an, the majority opinion emphasizes that in imposing a single penalty of reclusion perpetua for the qualified violation of Presidential Decree No. 1866 and treating murder merely as an element of the statutory offense, an incongruous situation results wherein a more serious crime under the Revised Penal Code, which is malum in se, is absorbed by a lesser offense under a special law which is only malum prohibitum. Hence, it was urged during the deliberations that we should not adopt a novel doctrine which rests on a shaky foundation.

1. The basic premise of this argument is definitely offtangent. The penalty for the aggravated illegal possession of unlicensed firearm, in the terminology of Caling, is the single indivisible penalty of death which would be imposable regardless of the generic modifying circumstances11 or of whether the killing constitutes murder or homicide. The penalty under Presidential Decree No. 1866 is, therefore, decidedly higher than that for murder, although it is now reclusion perpetua to death in Republic Act No. 7659, and, being thereby covered by Article 63 of the Code, will be reduced to reclusion perpetua in the absence of aggravating circumstances. Of course, it does not even have to be pointed out that the penalty for homicide is only reclusion temporal in its entire extent,

2. Even assuming arguendo that the penalty for the aforesaid taking of human life could be higher than the penalty for aggravated illegal possession which would absorb the former, that is not an unheard-of or earthshaking legal tableau, The objections to the doctrine of absorption here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as quoted in People vs. Hernandez, et al.,12 that: "The theory of absorption tenaciously adhered to by the defense to the effect that rebellion absorbs all these more serious offenses is preposterous, to say

the least, considering that it is both physically and metaphysically impossible for a smaller unit or entity to absorb a bigger one."

Unfortunately, that astute observation was rejected by this Court, and advisedly so, since we are bound by legal precepts and not by physical or metaphysical laws. It is now an accepted dictum that the life of the law is not necessarily logic but experience, These considerations must have prompted the Court to also defend the doctrine of absorption in treason cases,13 holding that more serious offenses committed for treasonous purposes are absorbed in the former, with the piquant observation in Labra that "(t)he factual complexity of the crime of treason does not endow it with the functional ability of worm multiplication or amoeba reproduction."

In the scheme of penalties under the Revised Penal Code, it is accepted that a lesser offense may absorb a graver offense. As already stated, the lesser offense of rebellion which is punished by prision mayor absorbs the graver offense of murder which is now punished by reclusion perpetua to death, and all other offenses even with higher penalties if committed in furtherance of rebellion.14 On a lower level of comparison and closer to the case at bar, the lesser offense of forcible abduction which is punished by reclusion temporal15 absorbs the graver offense of illegal detention of a woman which is punished by reclusion perpetua to death.16 The lower offense of slaver), involving the kidnapping of a person which is punished by prision mayor17 absorbs the higher offense of kidnapping which is punished by reclusion perpetua to death.18

3. Neither should the fact that the aggravated form of illegal possession of an unlicensed firearm is a malum prohibitum punished by a special law inveigh against the doctrine of absorption we have adopted in Barros, In fact, as hereinbefore quoted, Tac-an recognized that the killing should be taken into account to increase the penalty to death because of the explicit provision of Presidential Decree No. 1866.

In People vs. Simon, ante, we traced the legal history of crimes punished under special laws, from the time they were divided by a seemingly impermeable membrane, because of their American origin and formulation, from felonies under the Revised Penal Code, which are of Spanish vintage. We explained how the legal development of adopting the scheme of penalties in the Revised Penal Code and applying them to those punished by special laws, markedly starting with subversion in Republic Act No.

1700, resulted in the consequent selective applicability of some provisions of the Code to special laws, absent an express or implicit prohibition against such vicarious application. There is decidedly no insuperable obstacle now to the application of the doctrine of absorption to offenses provided for or contemplated in Presidential Decree No. 1866.

4. Nor should we hold a "Judicial prejudice" from the fact that the two forms of illegal possession of firearms in Presidential Decree No. 1866 are mala prohibita. On this score, I believe it is time to disabuse our minds of some superannuated concepts of the difference between mala in se and mala prohibita, I find in these cases a felicitous occasion to point out this misperception thereon since even now there are instances of incorrect assumptions creeping into some of our decisions that if the crime is punished by the Revised Penal Code, it is necessarily a malum in se and, if provided for by a special law, it is a malum prohibitum.

It was from hornbook lore that we absorbed the distinctions given by text writers, claiming that: (1) mala in se require criminal intent on the part of the offender; in mala prohihita, the mere commission of the prohibited act, regardless of intent, is sufficient, and (2) mala in se refer to felonies in the Revised Penal Code, while mala prohibita are offenses punished under special laws.

The first distinction is still substantially correct, but the second is not accurate. In fact, even in the Revised Penal Code there are felonies which are actually and essentially mala prohihita. To illustrate, in time of war, and regardless of his intent, a person who shall have correspondence with a hostile country or territory occupied by enemy troops shall be punished therefor.19 An accountable public officer who voluntarily falls to issue the required receipt for any sum of money officially collected by him, regardless of his intent, is liable for illegal exaction.20 Unauthorized possession of picklocks or similar tools, regardless of the possessor's intent, is punishable as such illegal possession.21 These are felonies under the Revised Penal Code but criminal intent is not required therein.

On the other hand, I need not mention anymore that there are now in our statutes so many offenses punished under special laws but wherein criminal intent is required as an element, and which offenses are accordingly mala in se although they are not felonies provided for in the Code.

IV 1. From the foregoing discussion, I regret that I cannot agree with the rationalization of the majority that two separate penalties must be imposed on the same accused because he is supposed to have committed two separate offenses of (1) illegal possession with murder, and (2) the same murder per se. The unusual justification is that in the first offense, the murder is not considered as a separate offense but only to increase the penalty for the illegal possession, and in the second offense, that same murder shall now be considered as a separate offense in itself. To make this theory palatable, the example is given that if the murder is committed with an unlicensed firearm, the death penalty is imposable, whereas if it is committed with a licensed firearm, the penalty shall only be reclusion perpetua.

This concern is evidently due to the fact that Republic Act No. 7659, which "reimposed" the death penalty for certain heinous crimes, does not include the offense that we have termed as aggravated form of illegal possession of firearms which is provided for in the second paragraph of Section 1, Presidential Decree No. 1866. It approximates, therefore, an obsessive desire to impose a higher penalty, even if thereby basic principles of criminal law and the clear provisions of Presidential Decree No. 1866 are to be disregarded. Should that intent to impose the present penalty for murder, be subserved by charging that crime separately and then prosecuting the offender again for using the firearm with which he committed the same murder? And, will that objective be achieved if the crime is homicide which has not been affected by Republic Act No. 7659 but will thereby also be subjected to the same double prosecution under the reasoning of the majority?

It has always been my position that the death penalty was not "abolished" by the 1987 Constitution, since I had some participation in formulating the provision involved. It merely provides that the same shall not "be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it,"22 that is, authorizes its imposition. Meanwhile, all laws which provided for the death penalty remained in force and were maintained in the statute books despite that constitutional provision since it did not by itself have the effect of

amending or repealing them. Some of those laws were later expressly repealed or amended by the President in the exercise of her then legislative powers and, thereafter, some were repealed or modified by Congress, which even added other heinous crimes with capital penalties. However, other laws like Presidential Decree No. 1866, which were not thus repealed or amended, retain their present provisions and effects, except that the death penalty provided by them would in the meantime be reduced to reclusion perpetua. Parenthetically, why should the laws concerned be deemed amended or repealed if the death penalty provided for therein had already been "abolished" by the Constitution?

Republic Act No. 7659 did not "reimpose" the death penalty on murder. Article 248 of the Penal Code, which provided for the penalty of reclusion temporal in its maximum period to death for that crime, was amended by Republic Act No. 7659, merely to increase the penalty to reclusion perpetua to death, but it remained in full force even during the interim except for the fact that the penalty of death could not then be imposed. That is why the title of Republic Act No. 7659 is "An act to Impose the Death Penalty in Certain Heinous Crimes, Amending for that purpose, the Revised Penal Code, x x x." The same is true with respect to the aggravated form of illegal possession of firearms, except that the imposition of the death penalty thereunder is still proscribed.

2. Even if we were to indulge the majority in its thesis on the effects of Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the non-inclusion in the former of the aggravated form of illegal possession with murder the death penalty cannot be imposed for the murder, that fact does not warrant and cannot justify the recourse it has adopted as a judicial dictum. The second paragraph of the aforestated Section I expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former.

It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty had been divided into two separate offenses of illegal possession and murder with distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as It has done, treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1.

3. The fact that the aggravated form of illegal possession with murder was not included in Republic Act No. 7659 is a matter for Congress, and not for this Court, to remedy. A legislative terrain with gaps of omission In the statute is not terra incognita to the courts, familiar as we are with instances thereof. The legislature may have committed such omissions in the law for reasons of its own or through unintended oversight but, unless judicial remedy is constitutionally permissible, and in the cases at bar it is not, the courts must await the legislative remedy of amendment or repeal of that law.

For illustration, we can just again refer to the impasse earlier discussed regarding the logically absurd penalties for kidnapping in Article 267, in relation to forcible abduction of a woman under Article 342 and kidnapping for slavery in Article 272, all of the Revised Penal Code. A reading of Republic Act No. 1823 and Republic Act No. 108424 readily reveals that it was the purpose of Congress by corresponding amendment of the other related provisions of the Code, to pull all forms of kidnapping and serious illegal detention in Article 267, Yet, in the process, that objective was not fully subserved by the two amendatory laws since forcible abduction of a woman, which necessarily involves her kidnapping and detention, as well as kidnapping for the purpose of enslaving the victim, were overlooked and not included in the provisions of Article 267.25

These instances are presented to project the discrepancies in what should be the appropriate penalties for the aforesaid offenses involved because of their omission by Congress in the logical taxonomy of crimes. Yet, the Judiciary stands bound by the aforementioned state of the law on the matter, and has not attempted to exercise the power reserved for legislative amendment to suit its perceptions on what the penalties should be for forcible abduction and slavery. Similarly, the disposition in the cases at bar is grounded on the omission or non-inclusion of murder through the use of an illegally possessed firearm in the heinous crimes subject of Republic Act No. 7659, But, instead of respecting the legislative formulation, the majority has contrarily decided to disregard the clear import of Presidential Decree No. 1866 and opted to impose two penalties for what it considers as two offenses through a bifurcated interpretation.

4. Following that treatment, is the Court now prepared to adopt the same procedure with regard to similar offenses punished under other decrees? For example, Presidential Decree No. 532,26 punishes highway robbery with murder or homicide with the mandatory penalty of death. Since this offense has not been included in Republic Act No, 7659 and the death penalty cannot be imposed, shall this Court also follow the same procedure of imposing the penalty of reclusion perpetua for the highway robbery with murder (or homicide) under Presidential Decree No. 532, and then further impose the death penalty for the same murder under Article 248 of the Revised Penal Code?

Again, Presidential Decree No. 53327 imposes the penalty of reclusion perpetua to death if a person is killed as a result of cattle rustling. This offense has not been included in Republic Act No. 7659, hence the penalty can only be reclusion perpetua. By adopting the same rationale in the case at bar, shall the Court then impose the penalty of reclusion perpetua for cattle rustling pursuant to Presidential Decree No. 533 and then, if the killing constitutes murder attended only by an aggravating circumstance, should it then impose another penalty of death for the same murder under Article 248 of the Code?

Still further, Presidential Decree No. 53428 provides that if illegal fishing with the use of explosives or noxious or poisonous substances results "in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death." This offense is not provided for in Republic Act No. 7659, hence the death penalty cannot be imposed;

but the killing could conceivably constitute murder since the use of explosion or poison is a qualifying circumstance. The inevitable question that must again be posed, based on the theory adopted here by the majority, is whether or not the illegal fishing with murder shall be punished with life imprisonment at most under Presidential Decree No.

534, and then, if only an aggravating circumstance is present therein, the accused must also be given another penalty of death under Article 248 of the Code.

We can easily multiply what are clearly perceivable as the dangerous consequences of the solution contrived by the majority of creating two offenses and imposing two penalties. I have, however, chosen the foregoing illustrations involving acts punished under both a presidential decree and the Revised Penal Code, with murder as a common denominator, to make my analogies as close as possible to that involving Presidential Decree No. 1866 in these cases. In truth, the same problematic situation could be raised and created against any composite felony in the Code which is considered as a unitary offense and punished by a single penalty, if the majority's novel theory of duality of offenses with double penalties were to be applied thereto.

It is rather pointless to essay an unnecessary distinction between the phrase "as a result or on the occasion of' which refers to the killing committed in the course of violating Presidential Decrees Nos. 532, 533 arid 534, and the killing "with the use" of an illegally possessed firearm contemplated in Presidential Decree No. 1866. Incidentally, the equivalent phrase used in the special complex crimes in Articles 294 and 297 of the Code, in referring to the deaths caused by the malefactor, is "by reason or on occasion of' the different stages of the robbery therein. But the common denominator and identity among all the aforesaid composite crimes, for purposes of the issue under consideration, is that there is a principal offense, which is separately punishable, and an unlawful killing with a direct nexus to or connection with that principal offense is also committed.

What is then the focus of the inquiry in the present case which applies with equal force to the aforestated composite crimes is merely whether or not, apart from and in addition to the penalty imposable on the offender if he violates any of the foregoing decrees or commits robbery in any of its stages and which penalty is increased precisely if accompanied by an unlawful killing, he should be further and separately punished for such homicidal or murderous taking of human life. The implacable question is whether or not two separate penalties should be imposed on him for killing the same victim since those decrees and the Code already provide a single but increased penalty for the crimes therein if accompanied by an unlawful killing and thereby constituting a composite crime. Whether the death of the victim supervened as "a result or on the occasion," or "by reason or on occasion," or "with the use" of the firearm or poisonous substances availed of by the accused is immaterial even if liberally viewed in the context of the mens rea as proposed by the majority.

5. Prescinding from the substantive aspect and shifting to the procedural and constitutional view, I am also bothered by the impact of the majority opinion upon the rule on double jeopardy. I am referring, of course, to double jeopardy arising from prosecutions for the same offense under two or more laws as contemplated in the Rules of Court,29 and not to the special situation under the Constitution30 involving a prosecution for the same act punished under a law and an ordinance, as clarified in People vs. Relova, etc., et al.31 In the first kind. of double jeopardy for purposes of this discussion, what is determinative is the identity of the offense, hence the "sameevidence" test applies, that is, that the facts alleged and proven in one charge would, based on the same evidence, suffice to support the second charge, and vice-versa.32 Accordingly, the citation by the majority of People vs. Doriguez33 is of no moment, since it refers to a single act offending against two entirely distinct and unrelated

provisions of law one of which requires proof of an additional fact or element, hence different and trot identical offenses are involved.

In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the crime is only simple illegal possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder?34

In fact, we can extrapolate this constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and socalled special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense of either estafa or falsification, or how the accused convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idem as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now before us"

The majority comes up with the so-called "additional element" test to take the issue out of the rule on double jeopardy, citing for that purpose Yap vs. Lutero35 and People vs, Relova, etc., et al.36 These cases are not actually 'in point since they are primarily concerned with the question of double jeopardy where the same offense is punished by two statutes or different sections of the same statute, as contrasted with double jeopardy arising from the same act punished by a law and likewise by an ordinance, as has earlier been explained. The distinction is not germane here since there is no punitive ordinance involved in the case at bar. This proposition of the majority, however, bears discussion.

I do not gainsay the validity of the "additional element test," if properly understood and correctly applied. As I have written elsewhere, it Is a cardinal rule that the protection against double jeopardy may be invoked only for identical offenses or where an offense necessarily includes or is necessarily included in the other offense. However, it has also long been held that a single act may offend against two or more entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other.37 That is because the two offenses continue to exist independently of each other, with their respective penalties remaining unaffected by the commission of or penalty for the other offense.

This is illustrated by the considerations in the present rule that Batas Pambansa Big. 22, which punishes the mere issuance of bouncing checks,

is not a bar to another prosecution for estafa through the use of bouncing checks under paragraph 2(d), Article 315 of the Revised Penal Code.38 The rationale therefor is that the issuance per se of a bouncing check is ipso jure punishable under Batas Pambansa Big. 22, but to be punishable as estafa under the Code, the additional elements of deceit and damage are required. Also, while the former offense requires the drawer's knowledge of lack or insufficiency of funds in the drawee bank at the time the check is issued, the aforesaid provision on estafa does not so require. The penalty for the former is fixed by Section 1 of said law without regard to the damage caused or even without such damage, whereas the penalty for estafa through bouncing checks is determined by the damage to the offended party.39 Lastly, Section 5 of Batas Pambansa Blg. 22 provides that prosecution thereunder "shall be without prejudice to any liability for violation of any provision of the Revised Penal Code."

These features are absent in the integrated offense of murder or homicide with the use of an illegally possessed firearm, It is true that mere illegal possession has a specific lower penalty in Presidential Decree No. 1866, and murder or homicide have their own specific penalties in Articles 248 and 249 of the Code. However, the moment both erstwhile separate offenses juridically unite, we have what for expediency has been called by this Court an aggravated form of illegal possession of firearm punishable by the two highest penalties of reclusion perpetua to death. We cannot speak here, therefore, of the "additional element test" which presupposes and requires that the two offenses remain distinct from each other, with the discrete penalty for one being immune from that for the other. What, instead, transpired in Presidential Decree No. 1866 is a unification or merger in law of both offenses of illegal possession of firearm and murder or homicide, with each of them becoming a component offense in a new and different composite crime punished by another and gravely higher penalty.

V 1. The apprehension was also aired in our deliberations that the ruling in Barros may provide dishonest prosecutors with unfettered discretion to charge parties who commit illegal possession of firearms in its aggravated form not with the said offense but only with homicide or murder with one qualifying circumstance, and without any generic aggravating circumstance, so that by such strategy the accused would thereby get only the minimum period of the penalty.

As long as we live in a world of men and not of angels, there will always be that legitimate fear over the possible excesses of officialdom. There are, however, a plenitude of remedies provided by law for such a contingency, either criminal, civil or administrative in nature. In fact, if that act of the public prosecutor amounts to a refusal to perform a specific duty on him by law, his nonfeasance could even be controlled by an action for mandamus and he can be compelled to charge the proper offense in the information.40

2. Again, drawing from the experience in Deunida where only the aggravated illegal possession charge proceeded while that for homicide was withdrawn, then on the submission that no private interest had to be protected therein, no private prosecutor could appear for the victim. Indeed, it was stated in said case: "No private interest Is therefore involved, The civil liability arising from death may be the subject of a separate civil action or impliedly instituted with the criminal action for murder or homicide." The Court then ordered the deletion of the award of civil liability ex delicto.

It is my stand that even under such circumstances, the trial court may justifiedly assess and award the corresponding damages to the heirs of

the victim. This is not one of the so-called "victimless crimes" where, by the very nature of the crime, no damages can possibly be sustained by a private party, such as espionage, violation of neutrality, flight to enemy country or crimes against popular representation.41 Where the victim was killed under the circumstances contemplated in Presidential Decree No. 1866, I see no reason why the case should be excepted from the fundamental rule that every person criminally liable is civilly liable.42 Thus, while the crime of rebellion is directed against the Government, yet in the rebellion cases decided by this Court, corresponding awards for civil damages were invariably granted so long as the offense which caused the damage was proved and the victim and the malefactor or the property involved were duly identified by satisfactory evidence.

3. The advertence to People vs. De Gracia, et al.43 the decision wherein was penned by this writer, overlooks or falls to mention that the same was decided under the aegis of the doctrines in the cases hereinbefore enumerated, specifically the Tioson case, to which we then had to defer as they constituted the prevailing rule, hut which are now sought to he revisited in the instant case in light of Barros,

The statement in De Gracia that "(I)t was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law," referred to the action of the trial court in recommending executive clemency for the accused. Although there are some contrary views on the matter, the writer held that Article 5 of the Code does not apply to convictions under a special law where such application, as earlier stated, is expressly or impliedly prohibited. Said Article 5 expressly provides for the authority of the court to recommend executive clemency "when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty." Since, at that time the legal interplay between Presidential Decree No. 1866 and the penalties "borrowed" for it from the Revised Penal Code was still amorphous, this writer had to make those pronouncements in said case, but, precisely, the same are now being reexamined in the present cases.

I am aware that I have raised a number of what may appear as discomposing views but these should provoke a more thorough reexamination of the issues on these cases. On the other hand, I apprehend that the decision handed down herein may have opened a Pandora's box of legal curiosities and the swarm thus released will in due time return to the Court to roost. I can only hope that the Court's mavens of penal law who are responsible for the majority opinion here can fortify the same to meet the diverse and adverse reactions that it will predictably create.

On the foregoing premises, I respectfully but vigorously register my dissent on the points indicated and for the reasons advanced therefor.

HERMOSISIMA, JR., J., concurring:

Murder, most foul for betraying a depraved heart, is the inordinate killing of a human being, unlawfully and with premeditated malice, willfully, deliberately, a felony described in and penalized under Article 248 of the Revised Penal Code.

On the other hand, the unlawful possession of an unlicensed firearm, that artifice consisting essentially of a straight tube to propel a shot, shell or bullet by the explosion of gunpowder, is penalized as the offense of Illegal Possession of Unlicensed Firearm by Presidential Decree No. 1966 of martial law vintage.

Against accused-appellant Daniel Quijada y Circulado were filed the two aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of murder" in violation of paragraph 2, Section 1, of Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court convicted accused-appellant in both cases and sentenced him to suffer the penalty of Reclusion Perpetua for the crime of Murder and imprisonment a period of Seventeen (17) Years, Four (4) Months and One (1) Day, as minimum, to Twenty (20) Years and One (1) Day, as maximum, for the offense of Qualified Illegal Possession of Unlicensed Firearm penalized under the aforecited P.D. No. 1866.

There is no question that, as found by the majority, the crime of Murder and the offense of Illegal Possession of Firearm had been established by evidence beyond the shadow of doubt.

While the majority affirms the twin conviction of the accusedappellant in both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for Illegal Possession of an Unlicensed Firearm, the minority asserts the dissenting opinion that, as in People vs. Barros,1 accused-appellant may only be convicted of the offense of Illegal Possession of Unlicensed Firearm in its aggravated form, inferring that the crime of Murder has been absorbed by that offense or rather that the two (2) chimes may be said to have been complexed with each other.

While the teleological debate on whether criminal punishment is justified as retribution or as reformation continually rages, hardly disputable is the static view and unchanged reality that the primordial justification for punishing any man is that he has broken the law. While in Angloo American jurisdictions, there exist what are known as common law offenses, in our Jurisdiction, no act is a crime unless it is made so by statute.2 Every law enacted by the legislature for the restraint and punishment of crimes and for the preservation of the public peace, health and morals comes within the police power of the State.3

'"The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power instinctively charged by the common will of the members of society to look after, guard and defend the interests of the community, the individual and social rights and the liberties of every citizen and the guaranty of the exercise of his rights."4

In the exercise of its right, duty and power to determine and define crimes and their corresponding penalties, the lawmaking body is initially and usually guided by the general condition of penal liability under the legal maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated, means that "an act is not criminal unless the mind is criminal." On the basis of this, which is commonly known as the mens rea doctrine, our Revised Penal Code was enacted to largely penalize unlawful acts accompanied by evil intent which are denominated en masse as crimes mala in se. The paramount consideration here is the existence of a malicious intention borne out by the concurrence of freedom, intelligence and intent which altogether make up the "criminal mind" behind the resultant criminal act."

It is not always, however, that the evil to society anent a criminal act depends upon the state of mind of the offender. And no less valid, critical and indispensable is the prerogative of the legislature, through special enactments, to forbid the doing of a particular act and legislate the

commission of such act to be a crime, regardless of the intent of the doer.

"In many crimes, made by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution. In many cases the act complained of is itself that which produces the pernicious effect which the statute seeks to avoid. In those cases, the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad. x x x It is quite different from that large class of crimes, made such by the common law or by statute, in which the injurious effect upon the public depends upon the corrupt intention of the person perpetrating the act."5

In general, it may be said that there must be malus animus or a criminal intent. But there is also a class of crimes known as crimes mala prohihita which, on the broad grounds of public policy, criminalize certain acts without the usual requisite proof of the intent of the actor to commit the crime.

"In the case of The State vs. McBrayer (98 N.C, 623) this court stated:

'It is a mistaken notion that positive, willful intent to violate the criminal law is an essential ingredient in every criminal offense, and that where there is an absence of such intent there is no offense; this is especially true as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive,

and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation.'

xxxxxx XXX Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and that is, by the very nature of things, the crime itselfintent and all. The working of the law is such that the intent and the act are inseparable, The act is the crime."6

Indeed, to distinguish between crimes mala in se and mala prohibita by simply pointing out that the former refer to felonies in the Revised Penal Code while the latter are punished under special laws, does not amount to much, for there are indeed felonies that are penalized regardless of the felon's criminal intentions, and conversely, there are also special offenses that require proof of criminal intent.

Whether or not In a given case the statute is to be construed as forbidding the doing of an act and criminalizing the same without regard to the intent of the perpetrator of the act, is to be determined by the court by considering the subject matter of the prohibition as well as the language of the statute, thereby ascertaining the intention of the lawmaker. The index of whether or not a crime is malum prohibitum is not its form, that is, whether or not it is found in the Revised Penal Code or in a special penal statute, but the legislative intent that underlies its continuing existence as part of the law of the land.

"Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the

question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is."7

In this light, we have not just a few times precisely delineated the malum prohibitum nature of P.D. No. 1866, which is a codification of the laws on unlawful possession of unlicensed firearms, among others.

As has been aforesaid, in determining whether or not an offense is malum prohibitum or not, the relevant inquiry must concern the legislative intent as to the requirement of criminal intent or lack thereof. In this respect, the discussion of Justice Regalado in People vs. De Gracia8 is appropriate:

"The first issue to be resolved is whether or not intent to possess is an element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant x x x did intend to illegally possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition x x x.

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act), it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866."9

In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial measure in response to the perennial problem of law enforcement and public order and safety. Thus, we always pointed out that P.D. No. 1966 was passed because of an upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, which crimes have resulted in loss of human lives, damage to property and destruction of valuable resources of the country.10

The aforecited public policy concern justified the blanket prohibition in P.D. No. 1866 against mere possession of unlicensed firearms, among others, without regard to the criminal intent of the possessor. Indeed, what is being punished is the illegal possession, among others, of unlicensed firearms.

"What the decree does is to define the offense and provide for the penalty that may be imposed, specifying the qualifying circumstances that would aggravate the offense. There is no encroachment on the power of the court to determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require."11

Insofar as material to the present case, what is penalized is the sole,

simple act of a person who shall, among others, "unlawfully possess any firearm." The gravamen of the offense is the fact of possession of a firearm without a license or authority for such possession.12 It is only the offense of Illegal Possession of Unlicensed Firearm that is, in the corporeal and material sense,

provided for and defined in Section I of P.D. No. 1866. The penalty therefor, however, is another matter.

It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the exercise of legislative powers by then President Marcos under the 1973 Constitution, which powers inherently included the prerogative to prohibit certain acts perceived by the lawmaker to be substantially prejudicial to the public interest. Thus, Section I forbids the possession by any person of a firearm for which he does not have the proper license and/or authority. The sole act forbidden, prohibited and thereby criminalized is the illegal possession of an unlicensed firearm. That is all. However, while the offense penalized is singular, the penalties for such offense are plural and are distinguished from each other by certain circumstances which the lawmaker considered to be valid reasons to impose penalties heavier than the others. Thus, as a whole, the pertinent portion of said decree provides, to wit:

"Section 1. Unlawful Manufacture, Sales, 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.

If the violation of this Section is in furtherance of, or incident to, or in connection with crimes of rebellion, insurrection, or subversion, the penalty of death shall be imposed.

xxxxxx xxx. "13

The circumstances (1) that homicide or murder is committed with the use of an unlicensed firearm and (2) that the illegal possession of unlicensed firearm is committed in furtherance of, or incident to, or in connection

with the crimes of rebellion, insurrection or subversion, only qualify or aggravate the offense of Illegal Possession of Unlicensed Firearm for purposes of increasing the penalty therefor. These circumstances do not create another offense or a special kind of illegal possession or another form of illegal possession. When either of such circumstances is attendant under the premises of a case, such circumstance only authorizes and justifies the imposition of a higher penalty. It only has the effect of upgrading the penalty and not of supplying an additional, separate element of a new or another offense. Thus, there is no such thing as a special complex crime of illegal possession of unlicensed firearm used in homicide,14 or murder for that matter. Neither could we have conceived what we have been calling the aggravated form of illegal possession15 or qualified illegal possession,16 to be a separate, distinct and independent offense from illegal possession without any qualifying circumstance. Even Justice Regalado concedes in his Separate Opinion in People vs. Barros17 that "the nomenclature of aggravated illegal possession is used just for expediency, in the same manner as that of 'qualified rape' under Article 335 when the sexual assault is attended by the circumstances therein which result in increased penalties."

In People vs. Barros,18 we were mainly concerned with the issue as to whether or not, whenever a killing is effected with the use of an unlicensed firearm, the malefactor should be punished separately for both offenses, with the unlawful taking of life to be proceeded against under the corresponding provision of the Revised Penal Code and the illegal possession of the firearm under P.D. No. 1866. There, we decided that said malefactor ought only to be punished for qualified illegal possession of firearm essentially because the two crimes are not altogether separate or disconnected from each other both in law and in fact and could thus be viewed as a situation bordering close to or approximating the concept of complex crime proper and/or as a situation where the graver offense (of qualified illegal possession) can be said to have absorbed the lesser offense (of homicide or murder) which constitutes the essential element siring the so-called "capital offense of the aggravated form of illegal possession."

There is no time more appropriate to re-examine the Barros ruling than now, for to persist in it would result in an absurd situation that cannot be justified even under the hallowed principle of stare decisis.

Merely that two crimes are not altogether separate or disconnected from each other both in law and in fact, is of no moment. In the first place, should they in law and in fact be altogether separate or disconnected from each other to foreclose their absorption into or complexing with, each other? In the second place, that very statement provides a basic presumption and reality that must be fully understood insofar as its implications and consequences are concerned. They are precisely two crimes, and these two crimes are punished under two separate, distinct and independent laws. Punishment is a corollary of lawbreaking by a member of society whose law is broken.19 In this case, there are two separate laws involved, two separate crimes punished by two laws, and two counts of breaking the law constituting two crimes for which two separate penalties are provided. Concededly, accused-appellant performed only one action which was made basis for two Informations each charging a distinct offense. But it is also a wellestablished rule in this jurisdiction that:

"a single act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or convictino or a dismissal of the informatino under one does not bar

prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same fats, if each crime involves some important act which is not an essential element of the other."20

Where there are, as in this case, two crimes punished by two disctinct laws enacted for absolutely different purposes, and both laws are clear and unambiguous, and no absurdity or unreasonableness is evident from the application of both, it is not the proper function of the court to change or alter in any way the state of things thereunder. That it is desirable, equitable, wise, humane or charitable to find a way to decrease the penalty or avoid imposition of the penalties under the two laws, is not denied, but at most we can only "legislate interstitially x x x confined from molar to molecular motions"21

and clear up ambiguities or fill in the gaps. Gaps in our conscience and our personal convictions must be found and provided some other legitimate channel for expression and realization.

The law on complex crime proper is not applicable here. One of the reasons often cited in proscribing complexing a crime under the Revised Penal Code and an offense under a special law is that the latter is not punishable by a penalty divisible into periods. Now following our ruling in People vs. Simon,22

the suppletory effect of the Revised Penal Code upon P.D. No. 1866 is now starkingly broadened because though it is a special penal law, the penalties provided therein are actually taken from the Revised Penal Code in their technical nomenclature, duration, correlation and legal effects, such that the same treatment as that respecting Revised Penal Code penalties may now be given to penalties under certain special laws.

However, notwithstanding the import of our ruling in the said case of People vs. Simon, it still cannot be said that there is no longer any obstacle in complexing murder with qualified illegal possession because the very essence and nature of each of these crimes remains unchanged and unaffected. Murder, or of that matter, homicide, remains distinct from the crime of Illegal Possession of Unlicensed Firearm where the firearm is used in perpetrating the killing. The defendant in such cases committed two different acts with two separate criminal intents, to wit, the desire to take unlawfully the life of a person and the sheer violation of the law which prohibits the possession of a firearm without required permit.23

In other words, there is in this instant case a case of plurality of crimes where accused-appellant performed one act which resulted in two different crimes penalized under two separate laws which have distinct purposes and are independent from each other.

Neither does the doctrine of absorption obtain in this case. For absorption to take place under the circumstances thereof, there must be two materially distinct and separate offenses involved - murder and what has been referred to as the capital offense of the aggravated form of illegal possession of unlicensed firearm. As has been explained hereinabove, however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply illegal possession of unlicensed firearm. The circumstance of homicide or murder only operates to upgrade the penalty for the offense of illegal possession fo unlicensed firearm and does not as it has not been intended to, sire and penalize a second offense or the so-called capital offense of the aggravated form of illegal

possession of unlicensed firearm. The offense of illegal possession, as such, in turn, cannot validly absorb murder or homicide because the latter is not an element of the former. Nothing more indubitably evidences the intent of the legislature to maintain the integrity and effectivity of the penal provision for murder and homicide, on the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very pertinent provisio of said decree which neither created any special complex crime nor amended nor repealed the provisions on murder or homicide nor defined a separate offense of an aggravated form of illegal possession.

We are not unaware of the fundamental legal principle that every doubt in the construction of a criminal statute should be resolved in favor of any person accused of a crime. To mete out a lesser penalty is certainly favorable to an accused; such, however, presupposes the existence of some doubt in the application of the law pertinent to his circumstances. In the instant case, there is no ambiguity, ambivalence, confusion, doubt or question respecting the applicable laws. The penalties provided for by the Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the offense of Illegal Possesssion of Unlicensed Firearm are not under attack. And it could not also be said that the application of said laws and the imposition of said penalties bring about an undeniable situation characterized by such absurdity, unreasonableness, and socially, morally or philisophically virulent consequences as to justify the utter disregard of said laws and their substantive provisions regarding penalties. Certainly, there must be a limit to what the court may do to remedy what it perceives as a difficult but avoidable situation. The consequences of the application of our valid, subsisting laws, after all, do not always have to satisfy our own standards of what is just and fair.

Finally, with the enactment of Republic Act (R.A) No. 765924

reimposing the death penalty for certain heinous crimes, an anomalous situation may emerge in our midst if we apply Barros. Said Act enumerated particular crimes under the Revised Penal Code and specific offenses under special laws that shall henceforth contain provisions imposing the death penalty under certain circumstances. One of the crimes enumerated thereunder is Murder, which may now be punished by death.25

The death penalty may now also be meted out in, among others, the case of drug-related crimes as provided for in the Anti-Carnapping Act of 1972.27

Of utmost significance is the fact that not included in the enumeration of special offenses where the death penalty has been revived, is P.D. No. 1866. R.A. 7659 being a penal statute which must, as a rule, be strictly construed against the State, the inescapable and inevitable conclusion is that Congress, in enacting R.A. No. 7659, did not intend to revive the death penalty provision found in the second and third paragraphs of Section 1 of P.D. No. 1866.

The foregoing makes for a tremendous import. On the one hand, were we to insist the murder may be complexed with or absorved by illegal possession of unlicensed firearm where said firearm is used in the commission of murder or homicide, a person convicted for said offense may only be punished with a penalty no higher than reclusion perpetua, since R.A. No. 7659 did no revive the death penalty provision in Section 1 of P.D. No. 1866. On the other hand, a person who has used a licensed firearm in committing murder may be punished with death if there were sufficient aggravating circumstances attendant in the killing, since R.A.

No. 7659 restored the death penalty for the crime of murder. No much deeper analysis is needed to realize that an anomalous, absurd situation confronts us where the use of an unlicensed firearm in killing is rewarded by a lesser penalty. Herein lies real injustice. And we cannot scale down this resounding message which indifference on our part would impart: if "would be" criminals were to kill, they ought to kill with unlicensed firearms so that they will fall within the purview of P.D. No. 1866 with respect to which the death penalty has not been restored and not within the provisions of the Revised Penal Code for murder, for then depending upon the nature and number of the aggravating circumstances that may attend such crimes, they face the possibility of being sentenced to death, an eventuality that could never be under P.D. No. 1866.

Certainly, we cannot close our eyes to this absurd situation, and it will be irresponsible of us to allow the absurdity to persist. We should not stubbornly cling to the illusion that murder and illegal possession of unlicensed firearm used in murder may be complexed with each other or absorbed into each other. Anyway, they are not so disconnected from each other that doing so would translate into a lower penalty. For us to cling to such an illusion would be tantamount a complete disregard of legal concepts and principles in the realm of crime and punishment that has remain good, sound, valid law.

WHEREFORE, the conviction of the accused by the court a quo of the two (2) crimes aforesaid, that is, for Murder and Illegal Possession of Unlicensed Firearm, should be, as it is, affirmed.

1. G.R. Nos. 76338-39, February 26, 1990, 182 SCRA 601.

2. G.R. Nos. 101107-08, June 27, 1995, 245 SCRA 312.

3. G.R. No. 89823, June 19, 1991, 198 SCRA 368.

4. G.R. No. 94784, May 8, 1992, 208 SCRA 821.

5. G.R. No. 101584, April 7, 1993, 221 SCRA 333.

6. G.R. Nos. L-24444-45, July 29, 1968, 24 SCRA 163.

7. G.R. Nos. 105199-200, March 28, 1994, 231 SCRA 520.

8. G.R. No. 100921, June 2, 1995, 244 SCRA 731.

9. People vs. Muñoz, et al., G.R. Nos. L-38969-70, February 9, 1989, 170 SCRA 107.

10. G.R. No. 93028, July 29, 1994, 234 SCRA 555.

11. Art. 63, Revised Penal Code.

12. 99 Phil. 515 (1956).

13. People vs. Prieto, 80 Phil. 138 (1948); People vs. Labra, 81 Phil. 377 (1949); People vs. Adlawan, 83 Phil. 194 (1949).

14. People vs. Hernandez, supra.

15. Art. 342, Revised Penal Code.

16. Art. 267, id,

17. Art. 272, id.

18. An. 267, id.

19. Art. 120, pars. 1 and 2, id.

20. Art, 213, par. 2(b), id.

21. Art. 304, id. This is to be distinguished from possession of instruments or implements for falsification which is punishable under Art, 176 only if the offender possesses the same "with the intention of using them."

22. Sec. 19 (1), Art. III, Constitution.

23. Effective September 25, 1946.

24. Effective June 15, 1954.

25. For that matter, even the epigraph of Article 270 still reads "kidnapping and failure to return a minor" although the original first paragraph of Article 270 on kidnapping of a minor was transposed to Article 267, and only the second paragraph of Article 270 on failure to return a minor was retained and continues to be punished therein.

26. Anti-Piracy and Anti-Highway Robbery Law of 1974, effective August 8, 1974. Its provisions on piracy, however, have been incorporated by Sec. 3, R.A. No. 7659 in Arts. 122 and 12.3 of the Code, with amendments.

27. Anti-Cattle Rustling Law of 1974, effective August 8, 1974.

28. Defining illegal fishing with stiffer penalties, effective August 8, 1974.

29. Sec. 7, Rule 117, in relation to Sec. 5, Rule 120.

30. Sec. 21, Art. III.

31. G.R. No. L-45129, March 6, 1987, 148 SCRA 292.

32. People vs. Diaz, 94 Phil. 714 (1954).

33. Supra, Fn. 6.

34. Under the same assumption, double jeopardy can also be raised even if there has been no prior conviction for one of the offenses but both charges are pending and the accused has been arraigned in the first charge, as pointed out by this writer in his opinion in People vs. Pineda, etc., et al., (L-44205, February 16, 1993, 219 SCRA 1).

35. 105 Phil, 1307 (1959).

36. Fn. 31, ante.

37. U.S. VS. Capuffo, et al., 7 Phil. 24 (1906); People vs. Bacolod, 89 Phil. 621 (1951).

38. Lozano vs, Martinez, etc., ei al., G.R. No. 63419, December 19, 1996, 146 SCRA 323, and companion cases, which upheld the constitutionality of the law as a valid exercise of police power.

3. 9 The commission or prosecution for either offense does not in any way affect the specific penalties imposed for each of them. It was RD. No.

818 which was issued to increase the penalty for estafa through bouncing checks.

40. Bernabe vs. Bolinas, Jr., etc., et al., G.R. No. L-22000, November 29, 1966, 18 SCRA 812.

41. People vs. Orals, et al., 65 Phil. 744 (1938).

42. Art. 100, Revised Penal Code.

43. G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.

1. 245 SCRA 312.

2. Aquino, Ramon, The Revised Penal Code, 1987 Edition, p. 7.

3. People vs. Pomar, 46 Phil. 440, 455.

4. United States vs. Pablo, 35 PhiL 94, 100.

5. United States vs. Go Chico, 14 Phil. 128, 131.

6. Ibid., pp. 136, 138.

7. Ibid., P. 135.

8. 233 SCRA 716.

9. People vs. De Gracia, supra, at pp. 725-726.

10. People vs. De Gracia, supra, 725; Separate Opinion of Justice Regalado in People vs. Barros, 245 SCRA 312, 325; People vs. Tiozon, 198 SCRA 368, 379; Baylosis vs. Chavez, 202 SCRA 405, 412.

11. Misolas vs. Panga, 181 SCRA 648, 659-660.

12. People vs. Caling, 208 SCRA 821, 826; People vs. Somooc, 244 SCRA 731, 738.

13. P.D. No. 1866.

14. People vs. Caling, supra; People vs. Somooc, supra.

15. People vs. Caling, supra.

16. People vs. De Gracia, 233 SCRA 716, 732.

17. People vs. Barros, 245 SCRA 312, 324.

18. 245 SCRA 312.

19. Mabbott, J.D., "Punishment," in Morality in Criminal Justice by Daryl Close and Nicholas Meier, 1995 Edition, p. 434.

20. People vs. Doriguez, 24 SCRA 163, 171-172.

21. Southern Pacific Co. vs. Jensen, 244 U.S. 205, 221.

22. 234 SCRA 555.

23. People vs. Alger, 92 Phil. 227; People vs. Garcia, 92 Phil. 195; People vs. Maalihan, 53 Phil. 295; United States vs. Labai, 17 Phil. 240.

24. "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, other Special Penal Laws, and for Other Purposes."

25. Section 6, Republic Act No. 7659.

26. Republic Act No. 6425, as amended.

27. Republic Act No. 6539.

[GRN L-74324 November 17, 1988.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.

APPEAL from the judgment of the Court of First Instance of Cavite.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 ofthe Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:

"That on or about May 19,1982 at the town plaza of the Munici. pality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda.

"That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda.

"CONTRARY TO LAW" (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows:

"WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as

principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P6,000,00.

"Let the preventive imprisonment of Pugay be deducted from the principal penalty.

"Cost against both accused.

"SO ORDERED" (P. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants 'Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together, On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferris wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame.

The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at

the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 7 and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non-presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797). Besides, the matter as to whom to utilize as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

"Q.Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics?

"A.I put down the comics which I am reading and I saw what they were doing.

"Q.According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct?

"A.When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so.

"Q.We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true?

"A.Yes, sir.

"Q.Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him?

"A.I do not know that would be that incident.

"Q.Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually?

"A.Because I pity Bayani, sir.

"Q.When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?

"A.I was not told, sir.

"Q.Did you come to know how did you come to know he was going to pour gasoline that is why you prevent him?

"A.Because he was holding on a container of gasoline. I thought it was water but it was gasoline.

"Q.It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct?

"A.Yes, sir.

"Q.And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline.

"A.I saw him pouring the gasoline on the body of Joe.

"Q.So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani?

"A.Yes, sir" (Tsn, July 30,1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, tine respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, at; amended. Iti U.S. vs. Maloza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

"A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own pet-son, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury."

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it can be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages is found by the court a quo.

Accordingly, the judgment is affirmed with the modifications aboveindicated. Costs against the accused-appellants.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

Judgment affirmed with modification.

SECOND DIVISION

[G.R. No. 123070. April 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CASIANO BUNTAG alias “CIANO” and DIEGO BONGO, appellants.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal Case No. 7729, convicting the appellants Casiano Buntag alias “Ciano” and Diego Bongo of murder, sentencing each of them to reclusion perpetua, and directing them to jointly indemnify the heirs of the victim Berno Georg Otte the sum of P50,000 as moral damages.

The Indictment

The appellants were charged with murder in an Information, the accusatory portion of which reads:

That on or about the 9th day of February, 1992, in the municipality of Panglao, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause, conspiring, confederating and mutually helping each other, with treachery by the suddenness and unexpectedness of the acts, the victim who was unarmed being then unaware thereof, did then and there willfully, unlawfully and feloniously attack, assault and stab with the use of a bladed instrument one Berno Georg Otte (a German national), hitting and injuring the latter on his chest, thereby causing his immediate death; to the damage and prejudice of the heirs of the victim in the amount to be proved during the trial.

Acts committed contrary to the provisions of Art. 248 in relation to Art. 14 all of the Revised Penal Code as amended.2

The Case for the Prosecution

Before February 8, 1992, Berno Georg Otte,3 a German national and a tourist, checked in at the Alona Ville Beach Resort located in Panglao, Bohol. The resort manager, Herma Clarabal Bonga,4 assigned Otte to Room No. 95 and gave the latter his room key.

On February 8, 1992, Otte took his dinner at the resort’s restaurant. Bonga talked to him regarding the disco which was about to unfold that night in lower Tawala near the Catibo Chapel.6

At about 10:00 p.m., Bonga went to the disco party where she saw Otte seated at one of the tables.7 She noticed that he had some companions whom she failed to recognize.8

Isidro A. Mihangos, a 19-year-old student, and Benigno “Ninoy” Guigue were also at the disco. At around 2:00 a.m. of February 9, 1992, Mihangos and Guigue decided to call it a night and walked home, with

their respective bicycles at their sides.9 At the crossing to the Alona Beach, they saw a man lying on the road but did not recognize him. They walked past the prostrate man. When they were about twenty-five meters10 away from the body by the road, they met Casiano Buntag and Diego Bongo, their barriomates.11 Suddenly, Buntag and Bongo jointly and simultaneously lunged at them. Afraid for their lives, Mihangos and Guigue fled and sought refuge in the house of Guigue’s uncle, Aquilino Bongo.12 In the process, they left their bicycles behind. Aquilino Bongo then accompanied Mihangos and Guigue to where they left their bicycles. Mihangos and Guigue retrieved their bicycles, but Buntag and Bongo were no longer there.

At around 5:30 a.m. of February 9, 1992, the police station of Panglao, Bohol, received a report by radio call about a man, believed to be dead, lying at the side of the crossroad near the Alona Beach.13 PO1 Yolando E. Hormachuelos, together with PO1 Mauro Sumaylo and PO1 Dominie Ragusta,14 proceeded to the crime scene. They were accompanied by the Municipal Health Officer, Dr. Julita L. Cogo, who confirmed that the man died due to a stab wound.15 The policemen found a hunting knife about one meter away from the body.16 Constancio Geoivencal took pictures of the cadaver. Hormachuelos took custody of the knife.17

In the course of their investigation, the policemen learned that Mihangos and Guigue had seen the dead body by the road. Hormachuelos fetched Mihangos and Guigue from their houses and brought them to the road where the body of Otte was found. Mihangos and Guigue narrated how they found the body at around 2:00 a.m. that day, as well as their encounter with Bongo and Buntag.

At about 1:00 p.m. that day, Hormachuelos took appellant Bongo to the police station and investigated him without the assistance of counsel. Bongo admitted that he took Otte’s key to Room No. 9 and hid it near their house. He then drew a sketch showing the place where he hid the key, at the back of their house. Bongo also admitted that he was with appellant Casiano Buntag. The policemen went to Bongo’s house and recovered the key to Otte’s room as indicated by Bongo in his sketch.

At 2:00 p.m., Guigue arrived at the police station and gave his statement to Hormachuelos.18 At 3:00 p.m., Mihangos gave his statement to SPO1 Proculo Bonao.19 Hormachuelos then took custody of Casiano Buntag and brought him to the police station where he was asked about his involvement in the killing of Otte without the assistance of counsel. However, Buntag opted to keep silent. When apprised that Diego Bongo had implicated him, Buntag, this time with the assistance of his counsel, Atty. Nerio G. Zamora, gave a statement on February 13, 1992 to a police investigator. He stated that at 1:00 a.m. on February 9, 1992, he was walking back home from the disco place where he caught up with Diego Bongo and Otte at the crossing of Alona Beach. He saw Bongo poke a knife at Otte. Bongo then ordered him to box Otte but he refused, and moved back about three meters. Bongo himself then boxed Otte three times on the face. When Otte fell to the ground, Bongo stabbed him on the chest. Buntag also stated that he then ran back home, but Bongo followed him and cautioned him not to reveal the incident to anybody or else he would be implicated.20 Buntag subscribed and swore to the truth of his statement on February 21, 1992 before Judge Antonio Sarce of the Municipal Circuit Trial Court.

In the meantime, Municipal Health Officer Dr. Julita Lood-Cogo performed an autopsy on the cadaver of Otte and submitted her Post-Mortem Report which contained the following findings:

Stab wound, anterior chest, right, at the level of the 4th rib, approx. 2 cms. x 1 cm. in size, with a depth of approx. 12 cms., directed upwards and medially, with a complete fracture of the 4th rib, right, involving a portion of the right lung and base of the heart.

Cause of death:

CARDIORESPIRATORY ARREST DUE TO HEMORRHAGE, SECONDARY TO STAB WOUND, ANTERIOR CHEST, RIGHT.21

On March 7, 1992, a criminal complaint for murder was filed against appellants Bongo and Buntag with the Municipal Circuit Trial Court. Attached to the records was Buntag’s sworn statement dated February 21, 1992. Only appellant Bongo submitted his counter-affidavit on February 27, 1992, subscribed and sworn to before Judge Antonio Sarce,22 where he confirmed (a) Buntag’s account in his sworn statement before Judge Sarce that they were with Otte at 1:00 a.m. on February 9, 1992 at the crossing towards Alona Beach Resort, and (b) that he was armed with a hunting knife. He further stated therein that while at the crossing, Buntag and Otte, who were both drunk, had an altercation and that he tried to pacify them but in the process, Buntag pulled out his (Bongo’s) hunting knife from his waist and stabbed Otte with it.23

After the requisite preliminary investigation, the MCTC issued a resolution finding probable cause against the appellants for murder and issued warrants for their arrest. The court found Buntag’s sworn statement and Bongo’s counter-affidavit self-serving.

On June 4, 1992, the day of the appellant’s arraignment in the Regional Trial Court, appellant Buntag, through counsel, Atty. Nerio G. Zamora, filed a “Motion to Discharge (him) to be a Witness for the Prosecution,” alleging inter alia:

1) That there is absolute necessity for the testimony of said accused whose discharge is requested;

2) That there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused, as can be shown by the affidavit of said accused in relation to the affidavits or sworn statements of Ponciano Horcerada, Isidro Mihangos, Benigno Guigue, Alfredo Guioguio, and PO1 Yolando [E.] Hormachuelos;

3) That the testimony of herein accused can be substantially corroborated in its material points;

4) That the said accused does not appear to be the most guilty; and

5) That the said accused has not at any time been convicted of any offense involving moral turpitude;

6) That herein accused-movant hereby expresses his consent to be a witness for the government.24

However, the prosecution opposed the motion on the ground that both accused were equally guilty. On June 8, 1992, the court issued an Order denying the motion, and the appellants, assisted by their respective counsels, entered pleas of not guilty.25

During the trial, the prosecution presented Judge Antonio G. Sarce who testified that he conducted the preliminary examination of the case and

identified both Buntag’s sworn statement and Bongo’s counter-affidavit as subscribed and sworn to before him (Judge Sarce) in his chambers.

After presenting all its witnesses, the prosecution offered in evidence the hunting knife,26 the key to room no. 9 of the beach resort,27 the sworn statement of Buntag,28 and Bongo’s counter-affidavit29 to prove that both appellants conspired to kill the victim and that they in fact killed the victim, and as part of the testimony of Judge Sarce. Both appellants objected to the admission of the said sworn statements and counter-affidavit solely on the ground that the statements executed by one accused was hearsay as to the other accused.30 By way of rejoinder, the prosecution alleged as follows:

1. That exhibits A, B, C, D, E and all its submarkings are all relevant, pertinent and material evidence against the accused in the above-entitled case, therefore, admissible in evidence;

2. That exhibits F and all its submarkings are not hearsay and do not violate the res inter alios acta rule because they are principally offered against accused Casiano Buntag, the affiant. The sworn statement of Casiano Buntag is offered mainly as admission of said accused Casiano Buntag;

3. That exhibits G and all its submarkings are not hearsay and do not violate the res inter alios acta rule because they are principally offered against accused Diego Bongo, the affiant. The counter-affidavit of Diego Bongo is offered mainly as admission of said accused Diego Bongo.

WHEREFORE, it is most respectfully prayed of this Honorable Court to admit in evidence all the prosecution’s exhibits formally offered, for the purpose for which they are being offered.31

The court admitted the documentary and object evidence of the prosecution. The appellants opted not to adduce any evidence on their behalf. Instead, they filed, without leave of court, a “Motion to Acquit.” On June 7, 1993, the court issued an Order denying the motion.

On August 14, 1995, the trial court rendered judgment finding both the appellants guilty of the crime charged. The decretal portion of the decision of the trial court reads:

FROM THE FOREGOING PREMISES, this Court renders judgment finding the two (2) accused Casiano Buntag, alias Ciano, and Diego Bongo guilty beyond reasonable doubt of the crime of MURDER, an act committed contrary to the provisions of Article 248, in relation to Article 14 of the Revised Penal Code, as amended, and does hereby sentences each one of them to the penalty of Reclusion Perpetua, with all the accusatory penalties imposed by law.

There being no evidence disclosed as to the civil liability, this Court, therefore, limits in providing that the accused shall pay jointly the heirs of the deceased Berno Georg Otte the amount of Fifty Thousand Pesos (P50,000.00), by way of moral damages, but without subsidiary imprisonment in case of insolvency.

Without pronouncement as to costs.

SO ORDERED.32

The trial court relied, inter alia, on the sworn statement of Buntag dated February 21, 199233 and the counter-affidavit of Bongo34 in convicting them of the crime charged. Both the appellants appealed the decision.

Although the appellants enumerated separate issues in their briefs, the same may be synthesized into three issues, namely: (a) whether or not the prosecution proved beyond reasonable doubt that they conspired to kill the victim Otte and that they, in fact, killed him; (b) whether or not the appellants are guilty of murder; and, (c) whether or not the appellants are liable for moral damages to the heirs of the victim. Appellant Bongo’s contention that he was deprived of his right to due process on his claim that the transcripts of the respective testimonies of Dr. Julita Cogo, SPO1 Bonao and resort manager Bonga were not transmitted to this Court is belied by the records. In a Resolution dated September 11, 2000, the Court declared that, based on the records, the transcripts of stenographic notes in this case were already complete.35

The appellants contend that the prosecution failed to adduce direct or circumstantial evidence to prove that they conspired to kill the victim, and that they, in fact, killed him. They argue that although the prosecution adduced circumstantial evidence consisting of the extrajudicial sworn statement of appellant Buntag and the counter-affidavit of appellant Bongo, such evidence is utterly insufficient to prove their guilt beyond reasonable doubt.

Furthermore, according to the appellants, the admissions made by appellant Buntag in his sworn statement are binding on him only. Being prejudicial to appellant Bongo, such admissions are not inadmissible against the latter unless repeated in open court by appellant Buntag, thus, affording appellant Bongo the right to cross-examination. Likewise, the admissions of appellant Bongo in his sworn statement are inadmissible against appellant Buntag, unless the former repeated his admissions during the trial, affording the latter an opportunity to cross-examine the said appellant. The appellants further aver that since they opted not to testify on their respective statements, there was no opportunity for cross-examination. Consequently, the admissions made by one appellant in his sworn statement are hearsay evidence against the other appellant, and vice versa. In fine, the appellants contend that the trial court should have acquitted them of the crime charged.

We agree with the appellants that the prosecution failed to adduce direct evidence that they conspired to kill Otte and that they, in fact, stabbed and killed the victim. However, we find and so hold, after an incisive review of the records, that the prosecution adduced sufficient circumstantial evidence to prove the guilt of the appellants beyond reasonable doubt.

Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a crime and decide to commit it. Direct proof is not essential to establish conspiracy, and may be inferred from the collective acts of the accused before, during and after the commission of the crime.36 Conspiracy can be presumed from and proven by acts of the accused themselves when the said acts point to a joint purpose and design, concerted action and community of interests.37 It is not necessary to show that all the conspirators actually hit and killed the victim. Conspiracy renders all the conspirators as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one conspirator is the act of all.38

The crime charged may also be proved by circumstantial evidence, sometimes referred to as indirect or presumptive evidence. Circumstantial evidence is sufficient on which to anchor a judgment of conviction if the following requisites are established: (a) there is more than one circumstance; (b) the facts from which the inferences are

derived have been established; and, (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.39

In People v. Delim,40 we held, thus:

The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of the accused for the offense charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. If the prosecution adduced the requisite circumstantial evidence to prove the guilt of the accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution.41

In convicting the appellants of the crime charged, the trial court relied not only on the counter-affidavit of appellant Bongo42 and appellant Buntag’s sworn statement,43 but also on the other evidence on record, namely, the knife used in killing the victim,44 the key to Otte’s room,45 and the collective testimonies of the other witnesses of the prosecution.

The general rule is that the extrajudicial confession or admission of one accused is admissible only against the said accused but is inadmissible against the other accused.46 The same rule applies if the extrajudicial confession is made by one accused after the conspiracy has ceased. However, if the declarant/admitter repeats in court his extrajudicial confession during trial and the other accused is accorded the opportunity to cross-examine the admitter, such confession or admission is admissible against both accused.47 The erstwhile extrajudicial confession or admission when repeated during the trial is transposed into judicial admissions.

In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged.48 It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt.49 A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime charged.50

In this case, appellant Buntag made extrajudicial admissions against his interest in his sworn statement, and not a confession. So did appellant Bongo in his counter-affidavit. Such admissions in the form of affidavits, made in the Municipal Trial Court in the course of its preliminary investigation, are high quality evidence.51 MCTC Judge Antonio Sarce testified on the said sworn statement and counter-affidavit and was cross-examined.52 Moreover, some of the extrajudicial inculpatory admissions of one appellant are identical with some of the extrajudicial inculpatory admissions of the other, and vice versa. This corroborates and confirms their veracity. Such admissions, made without collusion, are akin to interlocking extrajudicial confessions. They are admissible as circumstantial evidence against the other appellant implicated therein to show the probability of his participation in the commission of the crime and as corroborative evidence against him.53 The Court rejects the appellants’ contention that they were deprived of their right to cross-

examine the other on the latter’s admissions against the other. Through their common counsel, they opted not to testify and be cross-examined on their respective statements by the prosecution. They opted to file a motion to acquit. Besides, they had opportunity to cross-examine Judge Sarce before whom they swore to the truthfulness of their statements.54

In this case, the prosecution adduced the following circumstantial evidence which constitutes proof beyond reasonable doubt that the appellants, indeed, conspired to kill and did kill the victim:

1. Appellant Buntag admitted, in his sworn statement,55 that, at about 1:00 a.m. on February 9, 1992, he was in the company of appellant Bongo and the victim Otte at the crossing of Alona Beach, and that appellant Bongo was armed with a hunting knife. Appellant Buntag identified the victim through the latter’s picture, as well as the hunting knife used in the killing.56 Appellant Bongo, in his counter-affidavit, confirmed the truth of appellant Buntag’s admissions and also admitted that on the said date, time and place, he was with appellant Buntag and the victim, and that he was armed with a hunting knife which was tucked on his waist.

2. The appellants admitted in their respective statements that on the said occasion, Otte died from a stab wound caused by a hunting knife.

3. Appellant Bongo admitted in his counter-affidavit that he took the key to the victim’s room and hid it near their house where the policemen found it.

4. While both appellants were within the periphery of the situs criminis, Mihangos and Guigue sauntered by with their bicycles at their sides. Suddenly, the appellants jointly and simultaneously lunged at them, causing Mihangos and Guigue to believe that their lives were in peril, impelling them to run for their lives and seek sanctuary in the house of Guigue’s uncle, Aquilino Bongo. By the time Mihangos and Guigue returned to the situs criminis to retrieve their bicycles, the appellants had already left.

5. In his sworn statement, appellant Buntag admitted that after the victim was stabbed, he and appellant Bongo fled from the situs criminis. This was corroborated by the testimony of Mihangos. The presence of both appellants at the situs criminis and their flight from the scene are strong indicia of their participation in the commission of the crime and their complicity therein.57 Appellant Bongo opted not to testify or adduce evidence to controvert the testimony of Mihangos and the admissions of the appellant prejudicial to him.

6. The hunting knife of appellant Bongo which was used to kill the victim was left at the scene of the crime where the policemen recovered it shortly thereafter.

7. The appellants admitted in their respective sworn statements that the victim was stabbed once with a hunting knife. These admissions were corroborated by Dr. Julita Cogo’s finding that the victim was stabbed once on the anterior chest area.58 The doctor testified that the stab wound could have been caused by a sharp-edged weapon.59

8. Neither of the appellants brought the victim to the hospital for immediate medical attendance and operation.

9. Although the appellants pointed to the other as the assailant in their respective statements, neither of them reported the stabbing to the police authorities and claimed that the other killed the victim.

10. Neither of the appellants took the witness stand to deny any involvement in the killing of the victim. The evidence of the prosecution, thus, stands unrebutted.

The appellants cannot rely on the exculpatory portions of their respective statements as basis for their acquittal of the crime charged. In the case of appellant Buntag, he avers in his sworn statement that he was ordered by appellant Bongo to box the victim and when he refused, appellant Bongo himself boxed and stabbed the victim with the hunting knife. When appellant Buntag fled from the scene and went back home, appellant Bongo followed and warned him not to divulge the incident so that he would not be implicated. For his part, appellant Bongo turned the tables on appellant Buntag and claimed in his counter-affidavit that the latter snatched the hunting knife from his waist and stabbed the victim in the heat of their altercation. The stabbing was so sudden, he insists, that he was unable to stop appellant Buntag from stabbing the victim.

We are not persuaded by the claims of the appellants for the following reasons:

First. Contrary to the claim of appellant Buntag that appellant Bongo boxed the victim, the necropsy report of Dr. Cogo failed to show that the victim’s body sustained hematoma, bruises or contusions. The findings of the doctor must prevail as against the bare statements of the appellants.

Second. Appellant Buntag admitted in his sworn statement that before he and appellant Bongo could leave the situs criminis after the victim was stabbed, Mihangos and Guigue arrived. The appellants lunged jointly and simultaneously at the two teenagers which so terrified the latter that they fled for their lives. If, as appellant Buntag claims, he had nothing to do with the stabbing of the victim, he should have sought the help of the teenagers, brought the victim to the hospital and reported to the police authorities that it was appellant Bongo who stabbed the victim. Appellant Buntag failed to do so. Neither did appellant Bongo seek the help of the two teenagers and report the stabbing to the police authorities. Both appellants’ unexplained omission is another indication of their conspiracy and complicity in the crime charged.

Third. Appellant Bongo took the key from the body of the victim and hid it near their house where the policemen found it. The appellant has not explained why he had the key to the victim’s room and hid it near their house. He owned the hunting knife used in stabbing the victim. He knew or should have known that sooner or later, the policemen would trace the knife to him; and yet, appellant Bongo failed to report the incident to the police authorities and surrender the knife to them.

Fourth. Appellant Bongo denied involvement in the killing and pointed to appellant Buntag as the assailant only after the latter had executed his own sworn statement pointing to appellant Bongo as the victim’s assailant. We are convinced that appellant Bongo’s denial of any involvement in the killing is but a belated afterthought to escape criminal liability for the victim’s death.

The trial court convicted the appellants of murder under Article 248 of the Revised Penal Code, as amended, and sentenced each of them to reclusion perpetua. We note, however, that the trial court, in its

amended decision, made no finding on any attendant circumstance which would qualify the killing to murder. It bears stressing that under the Rules of Criminal Procedure, any qualifying circumstance attendant to the commission of a crime must be alleged in the Information and proved by the prosecution, conformably to the constitutional right of an accused to be informed of the nature of the charges against him.

In this case, the Information alleged that treachery was attendant in the commission of the crime. The prosecution was burdened to prove beyond reasonable doubt, not only the crime itself, but also the qualifying circumstance of alevosia.60 Treachery cannot be based on speculations and surmises. In order that treachery may be appreciated as a qualifying circumstance under Article 14 of the Revised Penal Code, the prosecution is burdened to prove that (a) the malefactor employed means, method or manner of execution affording the person attacked no opportunity to defend himself or to retaliate and, (b) the means, method or manner of execution was deliberately or consciously adopted by the offender. In this case, there was no eyewitness to the crime.

On the other hand, appellant Buntag, in his sworn statement, claimed that before the victim was stabbed, appellant Bongo and the victim had an altercation; appellant Bongo, in his counter-affidavit, stated that it was appellant Buntag and the victim who had an altercation before the victim was killed. There is no evidence that the appellants deliberately or consciously adopted a method or means of execution to insure the death of the victim.

In fine then, the appellants are guilty only of homicide, punishable under Article 249 of the Revised Penal Code with reclusion temporal in its full range, which is twelve (12) years and one (1) day to twenty (20) years. There being no modifying circumstance attendant to the crime, the maximum of the indeterminate penalty should be in its medium period.

The trial court awarded moral damages to the heirs of the victim, although the prosecution failed to present any heir of the victim as witness. The trial court, likewise, failed to award civil indemnity ex delicto to the heirs of the victim. The decision of the trial court shall, thus, be modified accordingly.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal Case No. 7729 is AFFIRMED WITH MODIFICATIONS. Appellants Casiano Buntag alias “Ciano” and Diego Bongo are found guilty, as principals, of homicide under Article 249 of the Revised Penal Code. There being no modifying circumstances attendant to the crime, each of the appellants are sentenced to suffer an indeterminate penalty from ten (10) years of prision mayor, in its medium period, as minimum, to sixteen (16) years and one (1) day of reclusion temporal in its medium period, as maximum. The award of moral damages is deleted. The said appellants are ordered to pay, jointly and severally, to the heirs of the victim Berno Georg Otte, P50,000 as civil indemnity, conformably to current jurisprudence.61 Costs de oficio.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

People vs Comadre : 153559 : June 8, 2004 : Per Curiam : En Banc : Decision

EN BANC

[G.R. No. 153559. June 8, 2004]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ANTONIO COMADRE, GEORGE COMADRE AND DANILO LOZANO, APPELLANTS.

D E C I S I O N

PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an information which reads:

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage and prejudice of the deceased’s heirs and the other victims.

CONTRARY TO LAW.1

On arraignment, appellants pleaded “not guilty”.2 Trial on the merits then ensued.

As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Robert’s father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the conversation of the companions of his son.4

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of a nearby school.5

The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on the floor.6 They were all rushed to the San Jose

General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.7

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.9

SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.10

Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them to the police station, where he has been detained since.11

Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief.12

Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13

Antonio’s father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the night in question.14 Josie Comadre, George’s wife, testified that her husband could not have been among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all day in the farm.15

After trial, the court a quo gave credence to the prosecution’s evidence and convicted appellants of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of which states:

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

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death;

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages;

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.

Costs against the accused.

SO ORDERED.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.17

Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he saw the latter’s ten year-old son bring something in the nearby store before the explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano.

A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said period even helped them recall some facts which they may have initially overlooked.

Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness’ credibility as they erase suspicion that the same was perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a

witness to a crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing to the senses.19

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit.

The trial court is likewise correct in disregarding appellants’ defense of alibi and denial. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.20

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlog’s residence, appellants were unable to give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial.21

It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was bright.22

Appellants’ argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well taken.

It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case of Co Tao v. Court of Appeals24 we have held: “The fact that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous.” This rule had been followed for quite a long time, and there is no reason to go against the principle now.25

However, the trial court’s finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy.

We disagree.

Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.26

A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.27

The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in furtherance of the crime.

Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The ratiocination of the trial court that “their presence provided encouragement and sense of security to Antonio,” is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy.

Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the crime.

Coming now to Antonio’s liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party.

Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime.

It is significant to note that aside from treachery, the information also alleges the “use of an explosive”29 as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of the two circumstances will qualify the killing in this case.

When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence31 support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.32

Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also considers the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law vis-à-vis the

qualifying circumstance of “by means of explosion” under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied in the instant case.

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic levels.34

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads:

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to “pillbox,” “molotov cocktail bombs,” “fire bombs,” or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.)

x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term “xxx as an aggravating circumstance,” the unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative

purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of “explosion” in paragraph 12, “evident premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248.

Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm35 which is a kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution to show that the possession by appellant of the explosive was unlawful.

It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction with the pertinent tenets of legal hermeneutics.

A reading of the title36 of R.A. No. 8294 will show that the qualifier “illegal/unlawful ...possession” is followed by “of firearms, ammunition, or explosives or instruments...” Although the term ammunition is separated from “explosives” by the disjunctive word “or”, it does not mean that “explosives” are no longer included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word “or” is not used to separate but to signify a succession or to conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: “Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives”, clearly refers to the unlawful manufacture, sale, or possession of explosives.

What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of “the use of the aforementioned explosives, etc.” as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. “unlawfully” manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully “manufactured … or possessed” explosives. The mere use of explosives is not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating circumstances for their application.39

The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed “by means of explosion” in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation against him.40

The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised Penal Code, which provides:

Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a “single criminal impulse” which shows his lesser degree of perversity.41

Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.42 Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty.

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses.44

The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.45

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be determined, they should be awarded temperate damages of P25,000.00 each.46

WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-

16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio.

In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ., concur.

Callejo, Sr., J., see concurring and dissenting opinion.

People vs Comadre : 153559 : June 8, 2004 : J. Callejo Sr : En Banc : Concurring and Dissenting Opinion

CONCURRING AND DISSENTING OPINION

CALLEJO, SR., J.:

I concur with the majority that the appellant Antonio Comadre is guilty of murder for the death of Robert Agbanlog, and multiple attempted murder for the injuries sustained by the other victims. I dissent, however, from the ruling of the majority that the killing of Agbanlog is qualified by the use of explosives and not by treachery.

Under Section 3 of P.D. No. 1866 which took effect on June 29, 1983, any person who commits any of the crimes defined in the Revised Penal Code with the use of explosives, detonation agents or incendiary devices which results in the death of a person shall be sentenced to suffer the death penalty.1 However, with the onset of the 1987 Constitution, the imposition of the death penalty was suspended.

Under paragraph 3, Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the use of explosives in killing a person is a circumstance which qualifies the killing to murder, the imposable penalty for which is reclusion perpetua to death. When the crimes were committed by the appellants on August 6, 1995, Rep. Act No. 7659 was already in effect. But while the case was pending, Rep. act No. 8294 was approved on June 6, 1997. Section 2 of the latter law provides that when a person commits any of the crimes defined in the Revised Penal Code with the use of explosives, detonation agents or incendiary devices which results in the death of any person or persons, the use of such explosives, etc. shall be considered as an aggravating circumstance:

When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

Paragraph 3 of Article 248 of the Revised Penal Code, as amended by Rep Act No. 7659, was, thus, amended by Section 2 of Rep. Act No. 8294. Under the latter law, the use of a hand grenade in killing the victim was downgraded from being a qualifying circumstance to a mere generic aggravating circumstance. Considering that Section 2 of Rep. Act No. 8294 is favorable to the appellant, the same should be applied retroactively.2 Considering the factual milieu in this case, the generic aggravating circumstance of the use of explosives is absorbed by the qualifying circumstance of treachery.

People vs Comadre : 153559 : June 8, 2004 : Per Curiam : En Banc : Decision

EN BANC

[G.R. No. 153559. June 8, 2004]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ANTONIO COMADRE, GEORGE COMADRE AND DANILO LOZANO, APPELLANTS.

D E C I S I O N

PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an information which reads:

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed and eventually exploded at

the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage and prejudice of the deceased’s heirs and the other victims.

CONTRARY TO LAW.1

On arraignment, appellants pleaded “not guilty”.2 Trial on the merits then ensued.

As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Robert’s father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the conversation of the companions of his son.4

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of a nearby school.5

The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on the floor.6 They were all rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.7

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.9

SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.10

Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them to the police station, where he has been detained since.11

Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief.12

Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13

Antonio’s father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the night in question.14 Josie Comadre, George’s wife, testified that her husband could not have been among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all day in the farm.15

After trial, the court a quo gave credence to the prosecution’s evidence and convicted appellants of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of which states:

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

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death;

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages;

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.

Costs against the accused.

SO ORDERED.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.17

Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a

Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he saw the latter’s ten year-old son bring something in the nearby store before the explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano.

A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said period even helped them recall some facts which they may have initially overlooked.

Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness’ credibility as they erase suspicion that the same was perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing to the senses.19

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit.

The trial court is likewise correct in disregarding appellants’ defense of alibi and denial. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.20

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlog’s residence, appellants were unable to give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial.21

It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and

Danilo Lozano because there was a lamppost in front of the house and the moon was bright.22

Appellants’ argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well taken.

It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case of Co Tao v. Court of Appeals24 we have held: “The fact that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous.” This rule had been followed for quite a long time, and there is no reason to go against the principle now.25

However, the trial court’s finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy.

We disagree.

Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.26

A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.27

The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in furtherance of the crime.

Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The ratiocination of the trial court that “their presence provided encouragement and sense of security to Antonio,” is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy.

Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the crime.

Coming now to Antonio’s liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party.

Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime.

It is significant to note that aside from treachery, the information also alleges the “use of an explosive”29 as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of the two circumstances will qualify the killing in this case.

When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence31 support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.32

Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also considers the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law vis-à-vis the qualifying circumstance of “by means of explosion” under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied in the instant case.

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic levels.34

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads:

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to “pillbox,” “molotov cocktail bombs,” “fire bombs,” or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.)

x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term “xxx as an aggravating circumstance,” the unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of “explosion” in paragraph 12, “evident premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248.

Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm35 which is a kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution to show that the possession by appellant of the explosive was unlawful.

It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction with the pertinent tenets of legal hermeneutics.

A reading of the title36 of R.A. No. 8294 will show that the qualifier “illegal/unlawful ...possession” is followed by “of firearms, ammunition, or explosives or instruments...” Although the term ammunition is separated from “explosives” by the disjunctive word “or”, it does not mean that “explosives” are no longer included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word “or” is not used to separate but to signify a succession or to conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: “Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives”, clearly refers to the unlawful manufacture, sale, or possession of explosives.

What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of “the use of the aforementioned explosives, etc.” as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. “unlawfully” manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully “manufactured … or possessed” explosives. The mere use of explosives is not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating circumstances for their application.39

The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed “by means of explosion” in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation against him.40

The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised Penal Code, which provides:

Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a “single criminal impulse” which shows his lesser degree of perversity.41

Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall

be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.42 Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty.

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses.44

The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.45

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be determined, they should be awarded temperate damages of P25,000.00 each.46

WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio.

In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ., concur.

Callejo, Sr., J., see concurring and dissenting opinion.