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Showing posts with label art 4 rpc. Show all posts
Showing posts with label art 4 rpc. Show all posts

Crim Law 1 Case Digest: People v. Domasian 1993

People v. Domasian

G.R. No. 95322    March 1, 1993

Lessons Applicable:

Laws Applicable: Art. 4

FACTS:
•    March 11, 1982 morning: While Enrico was walking with Tirso Ferreras, his classmate, along Roque street in the poblacion of Lopez, Quezon, he was approached by Pablito Domasian who requested his assistance in getting his father's signature on a medical certificate. Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man went into a building to get the certificate. Enrico became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from where they walked to the market. Here the man talked to a jeepney driver and handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San Vicente.  As Enrico was crying and being firmly held, Alexander Grate, the tricycle driver became suspicious and asked Domasian about his relationship with the boy who told him they were brothers.  Their physical differences and the wide gap between their ages made Grate doubt so he immediately reported the matter to two barangay tanods when his passengers alighted from the tricycle.  Grate and the tanods went after the two and saw the man dragging the boy. Noticing that they were being pursued, Domasian was able to escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance and already looking for him.
•    At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom note. The note demanded P1 million for the release of Enrico and warned that otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After comparing it with some records in the hospital, he gave the note to the police, which referred it to the NBI for examination
•    March 11, 1982 1:45 pm: Agra received an envelope containing a ransom note demanding P1 million otherwise Enrico will be killed.  . Agra thought the handwriting in the note was familiar so he referred it to the NBI for examination and it turned out to be Dr. Samson Tan’s signature.
•    Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon
o    Domasian’s alibi: at the time of the incident he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife for the refraction of his eyeglasses
o    Dr. Tan’s alibi: he was in Manila
•    Enrico, Tirso Ferreras and Grate all pointed Domasian. 
•    RTC: Domasian and Tan guilty as charged and sentenced them to suffer the penalty of reclusion perpetua and all accessory penalties
•    Appealed


ISSUE: W/N Domasian and Tan is guilty of kidnapping kidnapping with serious illegal detention

HELD: YES. appealed decision is AFFIRMED
•    Art. 267. Kidnapping and serious illegal detention may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty
•    Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which he says is not punishable.
•    Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus:
Art. 4.    Criminal liability. — Criminal liability shall be incurred:
1.    By any person committing a felony (delito) although the wrongful act done be different from that which he intended.
•    Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffective means. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Article 267 although this too would not have been possible under the new Constitution.
•    On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it, whether they act through physical volition of one or all, proceeding severally or collectively. These acts were complementary to each other and geared toward the attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life.
•    The motive for the offense is not difficult to discover. According to Agra, Tan approached him 6 days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million pesos if he really wanted to help.

Jurisprudence: G.R. No. 95322 March 1, 1993

FIRST DIVISION

G.R. No. 95322    March 1, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Silvestre L. Tagarao for appellant Pablito Domasian.

Lino M. Patajo for appellant Dr. Samson Tan.

CRUZ, J.:

The boy was detained for only about three hours and was released even before his parents received the ransom note. But it spawned a protracted trial spanning all of 8 years and led to the conviction of the two accused. 1

The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital owned by Enrico's parents. They were represented by separate lawyers at the trial and filed separate briefs in this appeal.

The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was walking with a classmate along Roque street in the poblacion of Lopez, Quezon, he was approached by a man who requested his assistance in getting his father's signature on a medical certificate. Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man went into a building to get the certificate. Enrico became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from where they walked to the market. Here the man talked to a jeepney driver and handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San Vicente, with the man still firmly holding Enrico, who continued crying. This aroused the suspicion of the driver, Alexander Grate, who asked the man about his relationship with the boy. The man said he and the boy were brothers, making Grate doubly suspicious because of the physical differences between the two and the wide gap between their ages. Grate immediately reported the matter to two barangay tanods when his passengers alighted from the tricycle. Grate and the tanods went after the two and saw the man dragging the boy. Noticing that they were being pursued, the man told Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance and already looking for him. 2

At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom note. The note demanded P1 million for the release of Enrico and warned that otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After comparing it with some records in the hospital, he gave the note to the police, which referred it to the NBI for examination. 3

The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand, Enrico was shown a folder of pictures in the police station so be could identify the man who had detained him, and he pointed to the picture of Pablito Domasian. 5 Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6

The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife for the refraction of his eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8

After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to suffer the penalty of reclusion perpetua and all accessory penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees.

In the present appeal, the accused-appellants reiterate their denial of any participation in the incident in question. They belittle the credibility of the prosecution witnesses and submit that their own witnesses are more believable. Tan specifically challenges the findings of the NBI and offers anew the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He maintains that in any case, the crime alleged is not kidnapping with serious illegal detention as no detention in an enclosure was involved. If at all, it should be denominated and punished only as grave coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a conspiracy between them to make them criminally liable in equal degree.

First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose finding in this regard is received with much respect by the appellate court because of his opportunity to directly observe the demeanor of the witnesses on the stand.

In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who positively identified Domasian as the person who detained him for three hours. The trial court observed that the boy was "straight-forward, natural and consistent" in the narration of his detention. The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian with equal certainty, as the man who approached Enrico when they were walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected Enrico's companion and later chased him, was also positive in identifying Domasian. All these three witnesses did not know Domasian until that same morning and could have no ill motive in testifying against him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be considered a disinterested witness because she admitted she had known Domasian for 3 years.

The defense asks why Domasian openly took Enrico to several public places if the intention was to kidnap and detain him. That is for Domasian himself to answer. We do no have to probe the reasons for the irrational conduct of an accused. The more important question, as we see it, is why Domasian detained Enrico in the first place after pretending he needed the boy's help. That is also for Domasian to explain. As for Enrico's alleged willingness to go with Domasian, this was manifested only at the beginning, when he believed the man sincerely needed his assistance. But he was soon disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from the hospital where he was going, restrained and threatened him if he did not stop crying.

Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let alone the contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and the manner of his payment for the refraction. 9 Tan's alibi is not convincing either. The circumstance that he may have been in Manila at the time of the incident does not prove that he could not have written the ransom note except at that time.

Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:

The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person and has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge.

Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the ransom note and the standard documents were written by one and the same person, and another from the PC/INP 11 who expressed a contrary conclusion. The trial court chose to believe the NBI expert because his examination and analysis "was more comprehensive than the one conducted by the PC/INP handwriting expert, who virtually limited his reliance on the perceived similarities and dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in handwriting identification that it is not the form alone nor anyone feature but rather a combination of all the qualities that identify."

We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. 12 The test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result
of constitution, habit or other permanent course, and is, therefore itself permanent. 13

Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the scales should tilt in favor of the prosecution. Significantly, the NBI opinion was bolstered by the testimony of Agra, who believed that the ransom note was written by Tan, with whose handwriting he was familiar because they had been working in the hospital for four years and he had seen that handwriting every day in Tan's prescriptions and daily reports. 14

Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate imitation of another person's signature. In the case before us, there was in fact an effort to disguise the ransom note writer's penmanship to prevent his discovery.

As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows:

Art. 267.   Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1.  If the kidnapping or detention shall have lasted more than five days.

2.  If it shall have been committed simulating public authority.

3.  If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; of if threats to kill him shall have been made.

4.  If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person; even if none of the circumstances above-mentioned were present in the commission of the offense.

Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted that although the victim was not confined in an enclosure, he was deprived of his liberty when Domasian restrained him from going home and dragged him first into the minibus that took them to the municipal building in Gumaca, thence to the market and then into the tricycle bound for San Vicente. The detention was committed by Domasian, who was a private individual, and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the above-quoted article.

Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which he says is not punishable. His reason is that the second paragraph of Article 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means." As the crime alleged is not against persons or property but against liberty, he argues that it is not covered by the said provision.

Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus:

Art. 4.      Criminal liability. — Criminal liability shall be incurred:

1.  By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

xxx          xxx    xxx

Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffective means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Domasian deprived Enrico of his liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Article 267 although this too would not have been possible under the new Constitution.

On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it, whether they act through physical volition of one or all, proceeding severally or collectively. 17

It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action and community of interests. 18 In the instant case, the trial court correctly held that conspiracy was proved by the act of Domasian in detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts were complementary to each other and geared toward the attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life.

The motive for the offense is not difficult to discover. According to Agra, Tan approached him six days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and demand P1 million for his release.

The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested without warrant and then tortured and held incommunicado to extort a confession from him does not vitiate his conviction. He never gave any confession. As for the allegation that the seizure of the documents used for comparison with the ransom note was made without a search warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI agents or other police authorities. We held in the case of People vs. Andre Marti, 20 that the Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement agencies and limitation on official action.

We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of kidnapping as defined and penalized under Article 267 of the Revised Penal Code and so deserve the penalty imposed upon them by the trial court.

WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants.

Let a copy of this decision be sent to the Commission on Human Rights for investigation of the alleged violation of the constitutional rights of Pablito Domasian.

SO ORDERED.

GriƱo-Aquino, Bellosillo and Quiason, JJ., concur.

Crim Law 1 Case Digest: People v. Opero 1981

People v. Opero

G.R. No. L-48796    June 11, 1981

Lessons Applicable:

Laws Applicable: Art. 4

FACTS:
•    April 27, 1978 4 am: Salvador Oliver, a GSIS security guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing, another security guard, that he  picked up a 3 year-old girl loitering at the second floor of the building.  Rafael Ordona, a janitor, told Oliver that the girl is from Room 314 so Oliver called up Room 314 and when nobody answered, he and Barcing brought the girl to Room 314.  When nobody answered Oliver’s knock, he pushed the door open and smelled foul odor from the room.  He covered his nose with a handkerchief  and they entered the room where they saw Liew Soon Ping dead faced down on the bed with both feet tied, her body is bloated and a towel covered her mouth.  Oliver called up the homicide division of the Manila Police.  They saw a small baby crying and trying to get out of a crib near the bed of the dead person. 
•    They called her wife, Dr. Hong, who was in Cebu.  He came back immediately and found their personal effects worth P30,221 to be missing.
•    Diego Opero, Asteria Avila and , Milagros Villegas were picked up by the Samar P.C. and some of the missing articles. 
o    Diego Opero: He and Lacsinto subdued the victim by assaulting her, tying up her hands and feet stabbing her and stuffing her mouth with a piece of pandesal.
o    Milagros Villegas: Identified the stolen clothes which were given to her by Opero
o    Asteria Avila: she was not a party
•    Dr. Angelo Singian finding that the cause of death is the pandesal
•    RTC: Diego Opero for robbery with homicide together with Reynaldo Lacsinto and Milagros Villegas (accessory). Asteria Avila was acquitted.
•    Only Diego Opero appealed
o    He never intended to kill the deceased, his intention being merely to rob her, for if indeed he had the intention to kill her, he could have easily done so with the knife, and therefore, his liability should be only for robbery

ISSUE: W/N Diego Opero should only be liable for robbery.

HELD: NO. judgment appealed from being in accordance with law and the evidence, except as to the nonappreciation of the mitigating circumstance of having no intention to commit so grave a wrong as that committed, which nevertheless does not call for the modification of the penalty of death as imposed by the lower court, is hereby affirmed.

•    The intention is to prevent the deceased from making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave a wrong may be appreciated. The stuffing of the "pandesal" in the mouth would not have produced asphyxiation had it not slid into the neckline. According to Dr. Singian, the movements of the victim that caused the "pandesal" to slide into the neckline were, however, attributable to them for if they did not hogtie her, she could have easily removed the "pandesal" from her mouth and avoided death by asphyxiation.
•    What is important and decisive is that death results by reason or on the occasion of the robbery
•    Art. 49 applied only to cases when the crime committed befalls a different person from the one intended to be the victim
o    Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended - In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:
1.    If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.
•    There still remains one aggravating circumstance to consider, after either one of the two aggravating circumstances present, that of superior strength and dwelling, is offset by the mitigating circumstance aforesaid. The higher of the imposable penalty for the crime committed, which is reclusion perpetua to death, should therefore be the proper penalty to be imposed on appellant.

Jurisprudence: G.R. No. L-48796 June 11, 1981

EN BANC

G.R. No. L-48796 June 11, 1981

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DIEGO OPERO Y COSIPAG et al., accused; DIEGO OPERA Y COSIPAG, Defendant-Appellant.



PER CURIAM:

Automatic review of the death sentence imposed on Diego Opero for robbery with homicide with which he was charged in the Circuit Criminal Court of Manila, together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal their conviction with much lesser penalty, the last-named, as a mere accessory after the fact. Another accused, Asteria Avila was acquitted.

In his brief, appellant raised only the question of the propriety of the imposition of the death penalty on him, with the following assignments of error:

1.  THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED.

2.  THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN IMPOSING THE PENALTY ON THE ACCUSED

For the facts of the case, the narration of which in both the People's brief and that of appellant does not vary as to the essential ones, We could very well quote from the Appellee's brief, being the more comprehensive and complete, the following:

At about 4:00 o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing another security guard, that the latter picked up a little girl about three years old loitering at the second floor of the building. Rafael Ordona a janitor of the House International Hotel, told Oliver that the little girl is residing at Room 314 of the hotel. Oliver called up Room 314 by telephone and when nobody answered, he and Barcing brought the little girl to said Room 314 (pp- 6, 7, & 8, t.s.n., June 15, 1978). Upon reaching Room 314, Oliver knocked at the door, and when nobody answered, he pushed the door open but he smelled foul odor emanating from the room. Oliver covered his nose with a handkerchief and together with Barcing and the little girl, they entered the room where they saw prostrate on a bed a dead person with the face down and both feet tied. Oliver called up the homicide division of the Manila Police. Patrolman Fajardo who was assigned to investigate the report of Oliver, together with some funeral parlor men arrived at the scene, and they saw a small baby crying and trying to get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n., Id).

The dead body at Room 314 of the House International Hotel was that of Liew Soon Ping, Room 314 had been ransacked and personal belongings thrown all around. The hands and feet of the dead person were tied and the body was bloated. A towel was tied around the mouth of the victim. Photographs of the dead person and the condition of the room were taken under Patrolman Fajardos supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15, 1978).
Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his wife Liew Soon Ping who is the victim in this case, their three children and two maids, namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After conducting a preliminary inquiry around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh. "O"; pp. 32, 33 & 34, rec.) naming therein three suspects, namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth unidentified suspect. The names of these suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp- 28 & 29, t.s.n., Id.).

After establishing the Identity of the suspects, a follow up team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute was formed to further investigate the case. A separate police team composed of Sgt. Yanguiling and several policemen were sent to Leyte and Samar to track down the suspects (pp. 30 & 31, t.s.n., Id.). "Dr. Hong, the victim's husband who was in Cebu when the incident in his residence was committed was contacted by the police and informed about the death of his wife.

Dr. Hong came back immediately from Cebu and reported to the police. He (Dr. Hong) made an inventory of the personal effects found missing in his residence. valued at P30,221.00 (pp. 31, 32 & 33, t.s.n Id; Exhs. 'R' and 'R-l').

While the case was under investigation, the homicide division of the Manila Police, received a radio message (Exh. "T-l", p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the suspects could be found in a school house in Moriones, Tondo, Manila. Another radio message (Exh. "T", p. 41, rec.) was received by the police that two other suspects in the case, namely, Diego Opero and Asteria Avila were picked up by the Samar P.C. and some of the missing articles, namely, one (1) camera, flashlight, bill fold, and other personal belongings were recovered from them (pp. 35 & 36, t.s.n., Id).

Reynaldo Lacsinto was taken to police headquarters and after appraising him of his rights under the constitution, his statement was taken in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. "U" & "U-l", pp. 42, 43, 44, 45, 46, 47 & 48, rec,). In his said statement to the police, Lasinto admitted his participation and narrated in detail the commission of the robbery in Room 314 of the House International Hotel.

The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and turned them over to the homicide division of the Manila Police, together with some of the stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three suspects (Exhibits "B", "C", and "D", respectively) taken by the Samar P.C. were also turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35, t.s.n. Id). Opero was investigated further at the Manila Police Headquarters and he gave a supplemental statement (Exh. "FF", pp. 70-74, rec.; p. 36, t. s.n. Id) admitting that he had robbed the victim and Identified some of the missing articles recovered from his possession (pp. 41 & 42, t.s.n. Id). He described in detail how he planned the robbery and named the rest of his coaccused as willing participants. He also narrated in his said supplemental statement that he and his co-accused Lacsinto subdued the victim by assaulting her, tying up her hands and feet stabbing her and stuffing her mouth with a piece of pandesal (pp. 70- 74, rec.).

In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.) Milagros Villegas Identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46, t. s. n. Id)

The third suspect, Asteria Avila told the Manila police that she was not a party to the crime and upon advice of her lawyer she did not give any further statement. (p. 47, t. S. n. Id)

A reenactment of the crime at the crime scene was held under the direction of Opero portraying - his role, with Lacsinto depicting his part, and pictures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t. s.n. Id; pp. 79-99, incl., rec.).

The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then Chief of the Medico Legal Division of the Western Police District. The body was Identified by the victim's husband. Dr. Singian examined the body of the victim and issued a death certificate (Exh. "AA"), and the necropsy report (Exh. 'BB'), with the following findings: 1) a pale yellowish band across the eyes of the victim caused by the application of a towel, or broad piece of cloth across the eyes; 2) a pale yellowish band across the mouth caused by a similar material as the one applied across the victim's eyes, which was tied across the mouth; 3) contusion and hematoma on the upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of the chin; 5) broad linear mark of clothing material on the neck; 6) cord or ligature marks on the left and right arm, indicating that both arms were tied; 7) abdomen distended with gas, due to decomposition; 8) epiglotis, hematoma and contusion on the right side of the tongue; 9) contusions and hematoma on the right cheek; 10) superficial stab wound measuring 0.8 c.m. on the right side of the chin caused by a sharp bladed instrument; 1 1) superficial stab wound on the mid-axilliary line caused by a sharp bladed instrument: 12) stab wound on the left forearm: 13) cord markings on both feet.

Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm in the oropharynx. The tongue has contusion on the right lateral side and an abrasion across the middle portion. The larynx and trachea are markedly congested. The cause of death was due to asphyxiation by suffocation with an impacted bolus into the oropharynx and compression of the neck with a broad clothing around the neck (pp. 6-18, incl., t. s. n. June 16,1978; Exh. "BB" pp. 62 & 63, rec.).

In his first assignment of error, appellant advances the theory that he never intended to kill the deceased, his intention being merely to rob her, for if indeed he had the intention to kill her, he could have easily done so with the knife, and therefore, his liability should be only for robbery.

Appellant's theory finds no basis in the law or in jurisprudence. It was been repeatedly held that when direct and intimate connection exists between the robbery and the killing, regardless of which of the two precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide. 1 If the circumstances would indicate no intention to kill, as in the instant case were evidently, the intention is to prevent the deceased from making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in the mouth would not have produced asphyxiation had it not slid into the neckline, "caused by the victim's own movements, " according to Dr. Singian. The movements of the victim that caused the "pandesal" to slide into the neckline were, however, attributable to what appellant and his co-accused did to the victim, for if they did not hogtie her, she could have easily removed the "pandesal" from her mouth and avoided death by asphyxiation.

It may not avail appellant to contend that the death was by mere accident for even if it were so, which is not even beyond doubt for the sliding of the pandesal into the neckline to produce asphyxiation could reasonably have been anticipated, it is a settled doctrine that when death supervenes by reason or on the occasion of the robbery, it is immaterial that the occurrence of death was by mere accident. 3 What is important and decisive is that death results by reason or on the occasion of the robbery. 4 These Spanish doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992.

Appellant would also have Article 49, paragraph I of the Revised Penal Code apply to him, and faults the court a quo for having failed to do so. The provision cited reads:

Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended - In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:

1.  If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.

xxx          xxx xxx.

The foregoing provision has been applied only to cases when the crime committed befalls a different person from the one intended to be the victim. This was the explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, citing decisions of he Supreme Court of Spain." 5

In the instant case, the intended victim, not any other person, was the one killed, as a result of an intention to rob, as in fact appellant and his co-accused, did rob the deceased. As stated earlier, what may be appreciated in appellant's favor is only the mitigating circumstance of not having intended to commit so grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely different situation from that contemplated under paragraph 1, Article 49 of the same Code, where as already explained, the different felony from that intended, befalls someone different from the intended victim, as when the person intended to be killed is a stranger to the offender, but the person actually killed is the offender's father, thereby making the intended felony which is homicide different from the crime actually committed which is parricide.

Notwithstanding the presence of the mitigating circumstance of not having intended to commit so grave a wrong as that comitted, there still remains one aggravating circumstance to consider, after either one of the two aggravating circumstances present, that of superior strength and dwelling, is offset by the mitigating circumstance aforesaid. The higher of the imposable penalty for the crime committed, which is reclusion perpetua to death, should therefore be the proper penalty to be imposed on appellant. 'This is the penalty of death as imposed by the lower court.

WHEREFORE, the judgment appealed from being in accordance with law and the evidence, except as to the nonappreciation of the mitigating circumstance of having no intention to commit so grave a wrong as that committed, which nevertheless does not call for the modification of the penalty of death as imposed by the lower court, is hereby affirmed. Cost de oficio.

SO ORDERED.

Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos and De Castro, Jr., concur.

Fernando, CJ., took no part.

Melencio-Herrera, J., concurs in the result.

Crim Law 1 Case Digest: People v. Ortega 1997

People v. Ortega
G.R. No. 116736  July 24, 1997

Lessons Applicable: Indeterminate Sentence Law

Laws Applicable: Art. 4 RPC

FACTS:
•    October 15, 1992 5:30 pm: Andre Mar Masangkay (courting Raquel Ortega), Ariel Caranto, Romeo Ortega, Roberto San Andres, Searfin, Boyet and Diosdado Quitlong were having a drinking spree with gin and finger foods.
•    October 15, 1992 11:00 pm: Benjamin Ortega, Jr. and Manuel Garcia who were already drank joined them.
•    October 16, 1992 midnight: Andre answering a call of nature went to the back portion of the house and Benjamin followed him.  Suddenly, they heard a shout from Andre “Don’t, help me!” (Huwag, tulungan ninyo ako!) 
•    Diosdado and Ariel ran and saw Benjamin on top of Andre who was lying down being stabbed.  Ariel got Benjamin Ortega, Sr., Benjamin’s father while Diosdado called Romeo to pacify his brother. Romeo, Benjamin and Manuel lifted Andre from the canal and dropped him in the well. They dropped stones to Andre’s body to weigh the body down.  Romeo warned Diosdado not to tell anybody what he saw.  He agreed so he was allowed to go home.  But, his conscience bothered him so he told his mother, reported it to the police and accompanied them to the crime scene.
•    NBI Medico Legal Officer Dr. Ludivico J. Lagat:
o    cause of death is drowning with multiple stab wounds, contributory
o    13 stab wounds
o    stab wound on the upper left shoulder, near the upper left armpit and left chest wall- front
o    stab wound on the back left side of the body and the stab wound on the back right portion of the body – back
•    Manuel Garcia alibi
o    He was asked to go home by his wife to fetched his mother-in-law who performed a ritual called “tawas” on his sick daughter and stayed home after
•    Benjamin Ortega, Jr. story
o    After Masangkay left, he left to urinate and he saw Andre peeking through the room of his sister Raquel.  Then, Andre approached him to ask where his sister was.  When he answered he didn’t know, Andre punched him so he bled and fell to the ground. Andre drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him.  Andre then gripped his neck with his left arm and threatened to kill him.  Unable to move, Ortega shouted for help.  Quitlong came, seized the knife and stabbed Andre 10 times with it.  Andre then ran towards the direction of the well.  Then, he tended his wound in the lips and armpit and slept.
•    RTC: Benjamin and Manuel through conspiracy and the taking advantage of superior strength committed murder

ISSUE: W/N Benjamin and Manuel should be liable for murder.

HELD: NO. PARTLY GRANTED. Benjamin is guilty only of homicide. Manuel deserves acquittal
•    If Ortega’s version of the assault was true, he should have immediately reported the matter to the police authorities.  If Ortega’s version of the assault was true, he should have immediately reported the matter to the police authorities.  It is incredible that Diosdado would stab Andre 10 times successively, completely ignoring Benjamin who was grappling with Masangkay and that Andre was choking him while being stabbed.
•    Abuse of superior strength requires deliberate intent on the part of the accused to take advantage of such superiority – none shown
o    Andre was a 6-footer, whereas Ortega, Jr. was only 5’4”
•    Article 4, par. 1, of the Revised Penal Code states 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.” 
o    The essential requisites
1.    the intended act is felonious – assisting Benjamin by carrying the body to the well
2.    the resulting act is likewise a felony -  concealing the body of the crime to prevent its discovery
3.    the unintended albeit graver wrong was primarily caused by the actor’s wrongful acts (praeter intentionem) – still alive and was drowned to death
•    a person may be convicted of homicide although he had no original intent to kill
•    Garcia is a brother-in-law of Benjamin
o    Exempt by Article 20 of RPC
    ART. 20.  Accessories who are exempt from criminal liability.  --  The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.
•    The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega.  Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.

Jurisprudence: G.R. No. 116736 July 24, 1997

THIRD DIVISION
G.R. No. 116736.  July 24, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.
D E C I S I O N
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended.  Hence, an accused who originally intended to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial.  Nonetheless, in the present case, Appellant Garcia can not be held liable as a principal because the prosecution failed to allege such death through drowning in the Information.  Neither may said appellant be held liable as an accessory due to his relationship with the principal killer, Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision,[1] dated February 9, 1994 written by Judge Adriano R. Osorio,[2] finding them guilty of murder.

Appellants were charged by State Prosecutor Bernardo S. Razon in an Information[3] dated October 19, 1992, as follows:

“That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death.”

During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,[4] pleaded not guilty to the charge.[5] Accused “John Doe” was then at large.[6] After trial in due course, the court a quo promulgated the questioned Decision.  The dispositive portion reads:[7]

“WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of suit.

Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00.”

The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria[8] who took over from the Public Attorney’s Office as counsel for the accused.

The Facts
Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses as follows:[9]

“Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila.  That while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them.  That victim Andre Mar Masangkay answered the call of nature and went to the back portion of the house.  That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, ‘Don’t, help me!’ (Huwag, tulungan ninyo ako!)  That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon.  That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr.  That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr.  That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well.  That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well.  That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw.  That he answered in the affirmative and he was allowed to go home.  That his house is about 200 meters from Romeo Ortega’s house.  That upon reaching home, his conscience bothered him and he told his mother what he witnessed.  That he went to the residence of Col. Leonardo Orig and reported the matter.  That Col. Orig accompanied him to the Valenzuela Police Station and some police officers went with them to the crime scene.  That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police station.

On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case.  That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992.  That on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree and he joined them.  That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place.  That the stabbing happened between 12:00 midnight and 12:30 a.m.  That they drank gin with finger foods such as pork and shell fish.  That he met the victim Andre Mar Masangkay only on that occasion.  That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the drinking session.  That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the house.  That he cannot see Andre Mar Masangkay from the place they were having the drinking session.  That he did not see what happened to Andre Mar Masangkay.  That he only heard Masangkay asking for help.  That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help.  That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors.  That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter.  That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the former.  That he did not see any injuries on Benjamin Ortega, Jr.  That he called Romeo Ortega to pacify his brother Benjamin, Jr.  That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay.  That he knows that Andre Mar Masangkay was courting Raquel Ortega.  That Raquel Ortega asked permission from Andre Mar Masangkay when she left between 8:00 and 9:00 p.m.  That there was no trouble that occurred during the drinking session.

PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years.  That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near the subdivision he is living.  That he relayed the information to the Valenzuela Police Station and a police team under police officer Param accompanied them to the place.  That he asked the police officers to verify if there is a body of person inside the well.  That the well was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the stones inside the well.  That after the stones were removed, the body of the victim was found inside the well.  That the lifeless body was pulled out from the well.  That the body has several stab wounds.  That he came to know the victim as Andre Mar Masangkay.  That two men were arrested by the police officers.

On cross-examination, he said that he saw the body when taken out of the well with several stab wounds.  That Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the incident.  That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature.

NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway.  That he prepared the autopsy report and the sketch of human head and body indicating the location of the stab wounds.  That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water.  That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm.  There was stab wound at the left side of the neck.  That the contused abrasion could be produced by cord or wire or rope.  That there is (an) incised wound on the left forearm.  That the stab wounds which were backward downward of the body involved the lungs.  That the victim was in front of the assailant.  That the stab wound on the upper left shoulder was caused when the assailant was in front of the victim.  That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as the stab wound on the left chest wall.  That the stab wound on the back left side of the body and the stab wound on the back right portion of the body may be produced when the assailant was at the back of the victim.  That the assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted.  That the large airway is filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles.  The heart is filled with multiple hemorrhage, loss of blood or decreased of blood.  The lungs is filled with water or muddy particles.  The brain is pale due to loss of blood.  The stomach is one half filled with muddy particles which could [have been] taken in when submerged in water.

On cross-examination, he said that he found 13 stab wounds on the body of the victim.  That he cannot tell if the assailant or the victim were standing.  That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were standing or the victim was lying down and the assailant was on top.  That he cannot tell the number of the assailants.”

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital.  He left the hospital at seven o’ clock in the morning, went home, changed his clothes and went to work.[10] After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of work.  After drinking beer, they left at eight o’ clock in the evening and headed home.  En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree.  Thereupon, Appellant Garcia’s wife came and asked him to go home because their daughter was still sick.  To alleviate his daughter’s illness, he fetched his mother-in-law who performed a ritual called “tawas.”  After the ritual, he remained at home and attended to his sick daughter.  He then fell asleep but was awakened by police officers at six o’ clock in the morning of the following day.

Maritess Garcia substantially corroborated the testimony of her husband.  She however added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos.[11]

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia.[12] According to him, between eleven and twelve o’ clock in the evening, Masangkay left the drinking session.  Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate.[13] He went behind the house where he saw Masangkay peeping through the room of his sister Raquel.  He ignored Masangkay and continued urinating.[14] After he was through, Masangkay approached him and asked where his sister was.  He answered that he did not know.  Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding and caused him to fall on his back.  When he was about to stand up, Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him.  Masangkay then gripped his neck with his left arm and threatened to kill him.  Unable to move, Ortega shouted for help.  Quitlong came and, to avoid being stabbed, grabbed Masangkay’s right hand which was holding the knife.  Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach.  When the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit.[15] Quitlong chased Masangkay who ran towards the direction of the well.  Thereafter, Ortega went home and treated his injured left armpit and lips.  Then, he slept.

When he woke up at six o’ clock the following morning, he saw police officers in front of his house.  Taking him with them, the lawmen proceeded to the well.  From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a dead person from the well.  He came to know the identity of the dead person only after the body was taken to the police headquarters.[16]

The Trial Court’s Discussion

The trial court explained its basis for appellants’ conviction as follows:[17]

“The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay.  Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three malefactors.  Conspiracy and the taking advantage of superior strength were in attendance.  The crime committed by the accused is Murder.

Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be evidence  (People vs. Yu, 80 SCRA 382 (1977)).

Every person criminally liable for a felony is also civilly liable.  Accused (m)ust reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.”

The Issues

In their ten-page brief, appellants fault the trial court with the following: [18]

“I.       The trial court erred in holding that there is conspiracy on the basis of the prosecution’s evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to commit murder;

II.        The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the well;

III.       The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and

IV.      The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.”

On the basis of the records and the arguments raised by the appellants and the People,  we believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia?

The Court’s Ruling

We find the appeal partly meritorious.  Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal.

First Issue:  Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting narrations.  The prosecution witnesses described the commission of the crime and positively identified appellants as the perpetrators.  The witnesses for the defense, on the other hand, attempted to prove denial and alibi.  As to which of the two contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses and their stories.  In this regard, the trial court held:[19]

“The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more believable version.  Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused.  It was Diosdado Quitlong who reported the stabbing incident to the police authorities.  If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and will go in hiding.  x x x”

Because the trial court had the opportunity to observe the witnesses’ demeanor and deportment on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect.  Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of credibility must be respected.[20]

In the instant case, we have meticulously scoured the records and found no reason to reverse the trial court’s assessment of the credibility of the witnesses and their testimonies[21] insofar as Appellant Ortega is concerned.  The narration of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent.  It is straightforward, detailed, vivid and logical.  Thus, it clearly deserves full credence.

On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable.  Appellant Ortega claimed that after he was able to free himself from Masangkay’s grip, he went home, treated his injuries and slept.[22] This is not the ordinary reaction of a person assaulted.  If Ortega’s version of the assault was true, he should have immediately reported the matter to the police authorities, if only out of gratitude to Quitlong who came to his rescue.  Likewise, it is difficult to believe that a man would just sleep after someone was stabbed in his own backyard.  Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay.  Also inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself from the alleged successive stabbing of Quitlong.[23] The  natural tendency of a person under attack is to defend himself and not to persist in choking a defenseless third person.

Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court found the presence only of abuse of superior strength.

We disagree with the trial court’s finding.  Abuse of superior strength requires deliberate intent on the part of the accused to take advantage of such superiority.  It must be shown that the accused purposely used excessive force that was manifestly out of proportion to the means available to the victim’s defense.[24] In this light, it is necessary to evaluate not only the physical condition and weapon of the protagonists but also the various incidents of the event.[25]

In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega’s availment of force excessively out of proportion to the means of defense available to the victim to defend himself.  Quitlong described the assault made by Appellant Ortega as follows:[26]

“ATTY. ALTUNA:

Q     Will you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you witnessed a stabbing incident?

A     It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other.

xxx             xxx       xxx

Q     Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place?

A     The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega.

Q     What about this victim, Andrew Masangkay, where was he at that time?

A     Also the victim, Andrew Masangkay, he was also there.

Q     You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group?

A     Yes, sir.

Q     What happened next?

A     While we were there together and we were drinking ... (interrupted by Atty. Altuna)

Q     Who is that ‘we’?

A     Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay.  Andrew Masangkay answer to  a call of nature and went to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was.

Q     What happened next?

A     And afterwards we heard a shout and the shout said ‘Huwag, tulungan n’yo ako’.

Q     From whom did you hear this utterance?

A     The shout came from Andrew Masangkay.

Q     After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard ‘huwag, tulungan n’yo ako’ coming from the mouth of the late Andrew Masangkay, what happened next?

A     Ariel Caranto and I ran towards the back portion of the house.

Q     And what did you see?

A     And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Andrew Masangkay.

Q     Will you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr proceeded with the stabbing against the late victim, Andrew Masangkay?

INTERPRETER:

(At this juncture, the witness demonstrating.)

Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was ‘nakakabayo’ and with his right hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward and upward motion thrust.

ATTY. ALTUNA: (To the witness)

Q     How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?

A     I cannot count the number of times.”

It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches tall.[27] There was no testimony as to how the attack was initiated.  The accused and the victim were already grappling when Quitlong arrived.  Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength.  Hence, Ortega is liable only for homicide, not murder.

Second Issue:  Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court “is based on mere assumption and conjecture x x x.”[28] Allegedly, the medico-legal finding that the large airway was “filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles” did not necessarily mean that such muddy particles entered the body of the victim while he was still alive.  The Sinumpaang Salaysay of Quitlong stated, “Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr.”  Thus, the prosecution evidence shows Masangkay was already “dead” when he was lifted and dumped into the well.  Hence, Garcia could be held liable only as an accessory.[29]

We do not agree with the above contention.  Article 4, par. 1, of the Revised Penal Code states 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.”  The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actor’s wrongful acts.  In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony.  The offense was that of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.[30] Although Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body into the well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse than that intended.

True, Appellant Garcia merely assisted in concealing the body of the victim.  But the autopsy conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and that he died subsequently of drowning.[31] That drowning was the immediate cause of death was medically demonstrated by the muddy particles found in the victim’s airway, lungs and stomach.[32] This is evident from the expert testimony given by the medico-legal officer, quoted below:[33]

ATTY. ALTUNA:

“Q    Will you please explain this in simple language the last portion of Exhibit N, beginning with ‘tracheo-bronchial tree’, that is sentence immediately after paragraph 10, 2.5 cms.  Will you please explain this?

A     The trancheo-bronchial tree is filled with muddy particles.

Q     I ask you a question on this.  Could the victim have possibly get this particular material?

A     No, sir.

Q     What do you mean by no?

A     A person should be alive so that the muddy particles could be inhaled.

Q     So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at that time, the person is still alive?

A     Yes, sir.

Q     Second point?

A     The heart is pale with some multiple petechial hemorrhages at the anterior surface.

Q     And this may [be] due to stab wounds or asphyxia?

A     These are the effects or due to asphyxia or decreased amount of blood going to the heart.

Q     This asphyxia are you referring to is the drowning?

A     Yes, sir.

Q     Next point is the lungs?

A     The lungs is also filled with multiple petechial hemorrhages.

Q     What could have caused this injury of the lungs?

A     This is due to asphyxia or the loss of blood.

Q     Are you saying that the lungs have been filled with water or muddy particles?

A     Yes, sir.

Q     And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your Report?

A     Yes, sir.

Q     Continuing this brain and other visceral organs, pale.  What is this?

A     The paleness of the brain and other visceral organs is due to loss of blood.

Q     And, of course, loss of blood could be attributed to the stab wound which is number 13?

A     Yes, sir.

Q     And the last one, under the particular point ‘hemothorax’?

A     It indicates at the right side.  There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was admixed with granular materials?

Q     And what cause the admixing with granular materials on said particular portion of the body?

A     Could be muddy particles.

Q     Due to the taking of maddy (sic) materials as affected by asphyxia?  Am I correct?

A     It’s due to stab wounds those muddy particles which set-in thru the stab wounds.

Q     So, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body and caused admixing of granular materials?

A     Yes, sir.

Q     Continuing with your report, particularly, the last two portions, will you please explain the same?

A     The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.

Q     And what could have cause the same?

A     [T]he stab wound of the abdomen.

Q     The last one, stomach 1/2 filled with muddy particles.  Please explain the same?

A     The victim could have taken these when he was submerged in water.

Q     What is the take in?

A     Muddy particles.

Q     And he was still alive at that time?

A     Yes, sir.”  (Underscoring supplied)

A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause of death:[34]

“1.      The presence of materials or foreign bodies in the hands of the victim.  The clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim to save himself from drowning.

2.       Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum).

3.       Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered.

4.       Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found.

5.       Presence of water in the middle ear.”

The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of the well.  Even his stomach was half-filled with such muddy particles.  The unrebutted testimony of the medico-legal officer that all these muddy particles were ingested when the victim was still alive proved that the victim died of drowning inside the well.

The drowning was the direct, natural and logical consequence of the felony that Appellant Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code.  Under this paragraph, a person may be convicted of homicide although he had no original intent to kill.[35]

In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are, however, two legal obstacles barring his conviction, even as an accessory – as prayed for by appellants’ counsel himself.

First.  The Information accused Appellant Garcia (and Appellant Ortega) of “attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA”  The prosecution’s evidence itself shows that Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega.  His responsibility relates only to the attempted concealment of the crime and the resulting drowning of Victim Masangkay.  The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information.  Constitutionally, he has a right to be informed of the nature and cause of the accusation against him.  To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.[36] Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:

“(2)    In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.  However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.”  (Underscoring supplied)

In People vs. Pailano,[37] this Court ruled that there can be no conviction for rape on a woman “deprived of reason or otherwise unconscious” where the information charged the accused of sexual assault “by using force or intimidation,” thus:

“The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution sought to establish at the trial that the complainant was a mental retardate.  Its purpose in doing so is not clear.  But whatever it was, it has not succeeded.

If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of reason or unconscious, such conviction could not have been possible under the criminal complaint as worded.  This described the offense as having been committed by ‘Antonio Pailano, being then provided with a scythe, by means of violence and intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita IbaƱez, 15 years of age, against her will.’  No mention was made of the second circumstance.

Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of reason -- and not through force and intimidation, which was the method alleged -- would have violated his right to be informed of the nature and cause of the accusation against him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)]  This right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against him.  Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded.  This right was, of course, available to the herein accused-appellant.

In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified seduction, which had not been alleged in the criminal complaint against him.  In the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was supposed to have raped, as the crime he was accused of -- and acquitted -- was not homicide but rape.  More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held by him in trust with the obligation to return the same under Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information.  The Court said such conviction would violate the Bill of Rights.”

By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges murder by means of stabbing.

Second.  Although the prosecution was able to prove that Appellant Garcia assisted in “concealing x x x the body of the crime, x x x in order to prevent its discovery,” he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code.  The records show that Appellant Garcia is a brother-in-law of Appellant Ortega,[38] the latter’s sister, Maritess, being his wife.[39] Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code:

“ART. 20.  Accessories who are exempt from criminal liability.  --  The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.”

On the other hand, “the next preceding article” provides:

“ART. 19.  Accessories. – Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime.

2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty  of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.”

 Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code.  This Court is thus mandated by law to acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00 from P35,000.00.  The former amount was proven both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim.[40] Of the expenses alleged to have been incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred in connection with the death of the victim.[41] However, in line with current jurisprudence,[42] Appellant Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00.  Indemnity requires no proof other than the fact of death and appellant’s responsibility therefor.[43]

The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega.  Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.

WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED.  Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum.  Appellant Ortega, Jr. is also ORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages.  Appellant Manuel Garcia is ACQUITTED.  His immediate release from confinement is ORDERED unless he is detained for some other valid cause.

SO ORDERED.

Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.