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Republic of the PhilippinesREGIONAL TRIAL COURTNATIONAL CAPITAL JUDICIAL REGIONBranch ___________Pasig City

PEOPLE OF THE PHILIPPINES, Plaintiff,

- versus -

Criminal Case No. ________For: Qualified Theft

CAROLYN LIM, Accused.

x ----------------------------------------x

DEMURRER TO EVIDENCE

ACCUSED, through counsel, unto this Honorable Court respectfully moves for the dismissal of the charge against her of Qualified Theft on the following grounds:

1. The highly improbable theory of the prosecution was not substantiated.

2. The prosecution relied primarily on hearsay, self-serving and inadmissible evidence to prove its case.

3. None of the testimonies of the prosecution’s witnesses, as well as the documents offered as evidence, directly, or even logically, point to the accused as the perpetrator of the crime charged.

4. The testimonies of the prosecution’s key witnesses are inconsistent and contradictory on material points so as to make their testimonies worthless as evidence.

5. In sum, the bottom line is that there is gross insufficiency of evidence to sustain the indictment or to support a verdict of the guilt of the accused beyond reasonable doubt.

I. PREFATORY STATEMEMENT

1. This is a case of Qualified Theft filed against the herein accused, Carolyn Lim, former Customer Relations Assistant (CRA) of the Greenhills Branch of AB Banking Corporation, filed by Carmela Collantes, then Senior Manager of the Audit Examination Department of said bank, in behalf of the bank as private complainant.

2. Curiously and worthy of note is the fact that the charge was filed shortly following charges of incriminatory machination and intriguing against honor filed by the accused herself against the officers of the bank branch of private complainant where the accused used to work. 1

3. Criminal prosecution is a process whereby the accused is proceeded against for an

alleged commission of an offense as indicted in the information. In this wise, an accused is a lone person defending himself/herself against the full machinery of the State and the People of the Philippines. Consequently, all the necessary defenses and principles allowed under the law which may exculpate him/her from criminal liability should be applied in his/her favor. The time-honored doctrine is that an accused should be convicted, not on the basis of the weakness of his defense, but on the strength of the prosecution’s evidence itself.

4. Accordingly, an accused is presumed innocent until the contrary is proved beyond reasonable doubt. This presumption prevails unless overturned by competent and credible proof which the State is required to establish on all the essential elements of the crime with which the defendant is charged in the indictment, and to establish beyond reasonable doubt that the accused is guilty of said crime. It is necessary that unless the preponderance of evidence points beyond the shadow of a doubt to his guilt, the accused is entitled to an acquittal. 2 For the evidence to be considered sufficient, it must prove (a) the commission of the crime, and (b) the precise degree of participation by the accused. 3

5. It must be noted at the very outset that the charge of qualified theft of which the

accused is charged hinges entirely and exclusively on the fantastic tale the private complainant persists to parlay that the accused succeeded in completely deceiving her superiors at the Greenhills branch of the complainant bank into believing that the cash collection covered by each of the bank’s official receipts covering the transactions that are the subject of this case was pocketed by the accused, and that she (the accused) did this on 644 separate occasions during her stint as Customer Relations Assistant at said bank for a period of about one year and a half—a gothic story that defies human reason and insults one’s intelligence.

6. Worse, the prosecution attempted to prove its impossible theory, not by adducing evidence establishing “the precise degree of participation by the accused” as required by the Supreme Court in each and every act of the crime of which she stands charged but by wild presumptions and illogical inferences

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to show an alleged criminal pattern based on circumstantial or indirect evidence that does not even pass the test of admissibility.

II. THE CHARGE AGAINST THE ACCUSED

The Amended Information filed with this Honorable Court on April 27, 2000, charging Carolyn Lim with the crime of Qualified Theft, reads as follows:

“On or about or sometime between January 1995 to May 1996, in San Juan, Metro Manila, and within the jurisdiction of this Honorable Court, the said accused, with intent to gain and without the knowledge and consent of the owner, being then an employee of AB Banking Corporation’s Greenhills Branch, who was assigned to handle the collection and remittance of Safety Deposit box (SDB) rental accounts of the Bank’s customer and with grave abuse of confidence reposed on her by her employer, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money amounting to P314,760.00, belonging to AB Corporation, represented by Carmela Collantes to the damage and prejudice of the latter in the said amount of P314,760.00.

“Contrary to law.”

III. DISCUSSION AND ARGUMENTS

1. On March 2, 2004, the prosecution rested its case, at least preliminarily (the complete resting of the prosecution’s case being upon the court’s resolution of the Formal Offer and Objections thereto 4 ) through a Formal Offer of Exhibits. In the Comments/Objections to Prosecution’s Formal Offer filed by the accused on April 6, 2004, it emphasized the non-inclusion of several alleged exhibits in the Prosecution’s Formal Offer, which deprives her of the right to object thereto, as follows:

a. “The prosecution alleges in page 116 of the Formal Offer that the first set of documents offered for a common purpose starts from Exhibit ‘A’ up to Exhibit ‘P25-3,’ while the first set actually attached in the formal offer of Exhibits is only from Exhibit ‘A’ to Exhibit ‘P17-3.’

b. “Contrary to the prosecution’s allegations, there are no portions of Exhibits ‘A’ to ‘D22-3’ which are marked as Exhibits ‘A-1’ to ‘D22-1.’

c. “There are also no portions therein marked as Exhibits ‘A-2’ to ‘D22-2’ contrary to the prosecution’s allegations.

d. “There are no initials of Carolyn Lim (the accused) in any portion of each of the documents comprising Exhibits ‘A’ to ‘P25-3’ contrary to the prosecution’s allegations.”

2. Arguing further on the matter, the accused went on by discussing that these

exhibits are misleading as they are not what the prosecution alleges them to be and that the above-identified documents, alleged but not found in the formal offer


of the prosecution, may not be considered as having been formally offered. Under the Rules, the court shall consider no evidence which has not been formally offered (Rule 132, sec. 35). A formal offer is necessary, since judges are required to base their findings of fact and their judgment solely and strictly upon the evidence offered by the parties at the trial. Opposing parties would be deprived of their chance to examine the document and to object to its admissibility if this procedure were not followed.

3. In an order dated April 20, 2004, the Honorable Court, confirming the abovecited objections, returned to the prosecution its Formal Offer of Evidence due to the finding that some exhibits listed in the Covering Pleading of said Formal Offer were missing as attachments.

4. Hence, in a hearing of this case dated April 27, 2004, the prosecution withdrew its Formal Offer for the same reasons stated above. Thus, the accused was constrained to also withdraw its Comments and Objections in order to adjust its allegations according to the additional exhibits that were supposed to be attached in the Formal Offer. The Court, therefore, issued an order giving the prosecution a period of thirty (30) days within which to file its Formal Offer, and the accused with the same period from receipt of a copy of the Formal Offer to file its Objections and Comments thereto, after which the matter shall be deemed submitted for resolution.

5. Subsequently, the prosecution asked, and the court granted, in an order dated July 16, 2004, another fifteen (15) day period from receipt of said order to file its Formal Offer, giving the prosecution more than ample time to complete its offer.

6. Counsel for the accused received a copy of the prosecution’s NEW Formal Offer of Evidence on August 3, 2004. Amazingly, this new Formal Offer, consisting of 123 pages, comprises the Cover Pleading only. It failed not only to complete the attachments as required by this Court, but altogether omitted every and all exhibits described therein.

7. Despite the fact that the previous Formal Offer (filed by the prosecution on March 3, 2004) has been withdrawn and, thus, considered stricken off the records of the case, the NEW Formal Offer did not contain any attachment of any documentary evidence, which effectively deprives the accused of any opportunity to object to any of the alleged exhibits submitted by the prosecution.

8. Additionally, after a circumspect and painstaking scrutiny, it was found out that the changes in the cover pleading (as discussed in the accused’s Objections/Comments to Prosecution’s Formal Offer) constitute only insertions of some exhibits with similar purposes as the first Formal Offer. The fact that no documentary evidence, originally attached in the previous formal Formal Offer or otherwise, has been attached in this new Formal Offer renders the foregoing changes immaterial and inconsequential. It has not cured, even in the slightest

degree, the defects of the previous Formal Offer of the prosecution which has been excluded by this Honorable Court.

9. Moreover, the introduction of the foregoing changes did not affect the purposes for the offer of the documentary evidence as there has been no changes whatsoever in the discussion of the purposes for said offer.

10. It should be stressed that the new Formal Offer did not even incorporate by reference the incomplete attachments of the previous Formal Offer of Exhibits.

11. On these scores, as this Court has expressed in its July 16, 2004 Order “Failure to comply within the reglementary period will be considered as a waiver of the prosecution’s right.” The submission of the Formal Offer by the prosecution, although made in time, is, in fact, not a compliance at all.

12. The failure of the prosecution to offer a complete exhibit in the previous Formal Offer and its failure to submit any exhibit on the new Formal Offer should be deemed a waiver of its right to do so. The delay of the proceedings in this case due to the unjustified lapses in the prosecution’s offer of evidence has been clearly vexatious and oppressive, constitutive of a violation of the right to a speedy trial of the accused.

13. Nevertheless, maintaining the above arguments, if only to obviate any further possible delay, and in the event that the Honorable Court, for whatever judicious and just reason there may be, would find no merit in the above discussion, or if the Court would consider the attachments in the previous Formal Offer as deemed incorporated in the second Formal Offer, the accused, without admitting the propriety of the new Formal Offer, interposed its comments and objections both to the withdrawn and the new Formal Offer of Exhibits of the prosecution. Thus, the following arguments and discussion in support of the demurrer:

1. The highly improbable theory of the prosecution was not substantiated.

The prosecution, during the presentation of its evidence, adduced 643 separate official receipts issued by the complainant bank for safety deposit box (SDB) payments purportedly aggregating P314,760.00, which was allegedly misappropriated/taken by the accused, on 644 separate occasions, continuously, surreptitiously, unnoticed and undetected during a long span of approximately eighteen months. These documents were, however, not offered in the new Formal Offer of Evidence. At most, they were offered incompletely in the prosecution’s first Formal Offer.

The prosecution attempts to convince the Court, without properly offering these exhibits, that these documents, on their face, prove that the accused actually stole the money covered by the receipts—patently a reductio ad absurdum.

Even assuming for argument’s sake that these documents were formally offered, nowhere in these official receipts is there any sign or indication that the monies covered by the

receipts were stolen or pocketed by the accused. On the contrary, the official receipts, each signed by a senior official of the bank, prove conclusively that the complainant bank actually received the money and not an iota of evidence was independently adduced to suggest, much less to directly prove, that the accused removed any part of the money from the complainant bank’s possession.

The Supreme Court, in evaluating the value of official receipts, has this to say:

“These documents are not mere scraps of paper bereft of probative value but vital pieces of evidence of commercial transactions. They are written memorials of the details of the consummation of contracts.” 5

In addition to said receipts, the prosecution presented, at least in the first Formal Offer, subsidiary ledgers 6 allegedly to prove that payments for SDB rentals and deposits for keys were not remitted nor reported by the accused as income in the general ledger and that the accused did not prepare income tickets on SDB rentals and deposits for keys, much less had them validated by the tellers, which allegedly would have shown that such collections were received by the private complainant. 7 The said subsidiary ledgers, however, are nothing more but “index cards,” 8 not accountable official records required by the Bureau of Internal Revenue (BIR) and therefore subject easily to fabrication or manipulation—and, furthermore, self-serving and inadmissible as evidence.

Also, the prosecution, contrary to its allegations, did not attach “A-1” to “D22-1 and “A-2” to “D-2” to D22-2 in its previous Formal Offer of Evidence. Worse, it did not attach even one exhibit in its new Formal Offer.

Nevertheless, the sum of these documents merely shows, at best, that the accused is guilty of violating standard banking procedures, never to be taken as a crime. It does not prove, in any way, that the accused pocketed or carted away sums of money owned by the complainant bank.

Ironically, the prosecution, while maintaining that the accused should have observed standard banking procedures, admits emphatically, and relies on it as an argument, to establish the guilt of the accused, that the complainant bank itself is deficient in enforcing such procedures, an express admission of guilt of mismanagement.

In aid of its flimsy demonstration of the guilt of the accused through the official receipts and subsidiary ledgers, the prosecution took refuge in the allegation that it was due to the defects in the implementation of banking procedures by the private complainant itself that facilitated the accused’s commission of the alleged offense. This is, to use a figure of speech, turning the gun around and pointing it to the accused. This argumentation of the prosecution should not be allowed to operate to the prejudice of the accused. In fact, such allegation militates against the private complainant as it merely bolsters the fact that the procedures followed in the bank is vulnerable to abuse by anyone among its employees, including the witnesses themselves or even the higher officials within the complainant bank having access to the subject monies. It is enigmatic why the private complainant limited its imputation to just the accused when the monies allegedly lost were also accessible to the other employees. And this is all because of the self-declared “deficiency in the procedures” of complainant bank. It behooves a rational mind to think that the case was filed only against the accused as a vengeful afterthought against the latter’s earlier





filing of a case against her superiors in the bank—or that her accusers did so as a conspirational coverup for their own misdeeds.

2. The prosecution relied primarily on hearsay, self-serving and inadmissible evidence to prove its case.

A person should testify only as to the facts which he/she knows of his/her personal knowledge . 9 Any other testimonial evidence outside the witness’ personal knowledge is hearsay and downright inadmissible. 10

The prosecution’s principal witness and accuser, Carmela Collantes, did not have personal knowledge of what had really transpired during the time of the alleged commission of each and every act of qualified theft. She only based her statements and factual assessments on the records and stories presented and conveyed to her by the employees in complainant bank’s employ, which cannot avoid the obvious taint of bias and partiality. Consequently, her testimony as a whole has no probative value at all.

The general rule is that hearsay evidence is not admissible. Admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not cannot be given credence for it has no probative value. 11

Aside from supervising the audit examination of the bank records allegedly covered by the questioned transactions, witness Collantes interviewed Elsa Garcia, the Branch Cashier, and the tellers and employees of the complainant bank, 12 the results of which were submitted in her audit report, 13 in addition to the figures presented in relation to the audited transactions. The report also contains baseless conclusions, among which is that 562 official receipts, presented as prosecution evidence, were allegedly prepared by the accused 14 without stating the basis of such conclusion as required by the rules of evidence on signature authentication.

The audit report further contains such odd statements as the following:

“Some of the above officers, namely, Elsa Garcia, Branch Cashier, Carlos Peña, Branch Operations Head and Ernie Santos, Acting Branch Manager claimed that when the official receipts were presented to them for signature, there were times when cash were inserted in the official receipt booklet and on occasions when there was no cash, they thought the money was already given to the tellers.” 15 (underscoring supplied)

Any reasonable-thinking person who happens to read this particular passage would have guffawed at this laughable story were it not for the fact that it involves a serious matter—which should be dismissed outright.

Paragraphs 1, 2, 3 and 4 under the title “B.” Subsequent Events/Actions Taken” on page 2 of the report, and paragraphs 2, 3 a), b), c) and d) under the title “II. Findings” on page 3 and 4 of the same Audit Report (attached in the first Prosecution’s Formal Offer but not in the second one) are all hearsay and inadmissible as evidence to prove the truth of the allegations thereof. Assuming arguendo that the said findings are admissible, they are simply incapable of constituting direct proof of the guilt of the accused as they only








lead to general conclusions inconclusive of the fact that the accused took monies from the bank. Moreover, the proceedings employed to arrive at such findings are internal and administrative in the bank, very susceptible to bias and partiality and with very limited rights provided for the accused.

The only material point on which witness Collantes reported on her own personal knowledge is found in paragraph 7 on page 3, and this is favorable to the accused. The paragraph is quoted below:

“7. On June 6, 1996, Carolyn Lim, accompanied by her father, Mr. Antonio Lim, came to the Head Office for a meeting with representatives of HRMDD, Legal Group, BRAD and Audit where she denied any knowledge or participation in the non-remittance of SDB collections. She even accused the Branch officers and staff of staging a conspiracy against her. When Carolyn was asked for what reason, she cited that maybe because she was requesting to be transferred to other branches since last year but her request was denied.” (emphasis supplied)

When witness Collantes conducted the audit examination of the transactions in question, she was a Senior Auditor holding office at the complainant bank’s head office, not an operation officer at the bank branch where the accused was working. How could she personally have known what happened in the handling of safety deposit box accounts of the bank branch when she was not there personally? How could she suggest that the accused, tricked, deceived or manipulated her superiors at the bank? How could she say or suggest that the accused succeeded in misappropriating the safety deposit box collections subject of the alleged crime?

3. None of the testimonies of the prosecution’s witnesses, as well as the documents allegedly offered as evidence, directly, or even logically, point to the accused as the perpetrator of the crime charged.

The bulk of the documents offered in the first Formal Offer of the prosecution consists of safety deposit box official receipts evidencing, as earlier mentioned, the fact that the complainant bank actually received, through its authorized officers, the amounts covered by the documents. Instead of implicating the accused, the receipts totally exculpate her of the crime attributed to her.

Receipts, to repeat what we previously said, are not mere scraps bereft of probative value but vital pieces of evidence of commercial transactions. They are written memorials of the details of the consummation of the contracts. 16

Also included in the documents offered in the previous Formal Offer as prosecution evidence are charts, copies of bank procedures allegedly violated by the accused, and the computer printouts allegedly reflecting the questioned transactions. Assuming that they were formally offered, all of them are self-serving and inadmissible evidence. They are non-accountable and sequentially unnumbered documents which by themselves will not prove the commission of the crime and therefore inadmissible as such in evidence.


None of them will induce a reasonable mind to conclude that the accused is guilty of the crime charged against her.

“Self-serving declarations are not admissible in evidence as proof of the facts asserted, whether they arose by implications from acts and conduct or were made orally or hearsay character. Furthermore, such declarations are untrustworthy, and to permit their introduction in evidence would open the door to frauds and perjuries.” 17

Nor do these documents prove the facts they seek to establish the purpose of the offer. At best, what they demonstrate is the tolerance of the officers of private complainant in the defects of its own procedures. It is rather an utter admission of the bank’s negligence that forecloses its right to protest against its unfavorable effects.

Conversely, said documents only bolster the fact that the system within the bank is readily vulnerable to abuse and exploitation by anyone, including the officers and employees of the private complainant and the prosecution witnesses themselves.

It may not serve the same purposes sought even if considered as part of the testimonies of witnesses Edna Garcia, Branch Cashier, and Ernie Santos, Acting Branch Manager. Witnesses Garcia and Santos are biased witnesses as they have been charged by the accused of another offense prior to the execution of their respective affidavits. Not to mention that they are employees of the complainant bank. Necessarily, the contents of their affidavits would be defensive and exculpatory at the expense of the accused. The possibility exists that their accusation and testimonies are mere cover-ups for the crimes for which the accused is charged—which may have been committed by others within the bank, not excluding the witnesses themselves.

The same is true with the Teller’s Entry allegedly prepared by witness Rose Gadia, teller, marked in exhibit as “W’ to “W’-5A” in the previous Formal Offer, purportedly to prove that Gadia did not receive the cash or process the transaction of client Peter LI, as SDB lessee, for Php700.00 as rental for SDB 1064. This clearly does not prove what it purports to prove. It is, moreover, incompetent and irrelevant evidence. The veracity and authenticity of the entries and other contents thereof were never established in accordance with the rules. Not being accountable forms, they can easily be selectively manipulated or even fabricated to serve the complainant bank’s or the witnesses’ own personal purposes.

In the case of the testimonies and depositions in the affidavits of Gadia and the tellers of the branch concerned of the complainant bank at the time the questioned transactions took place, it should be noted that not any one of them directly pointed to the accused as having actually misappropriated the funds supposed to have been stolen by her. In other words, there was no “smoking gun.” All they did was to deny that the funds covered by the official receipts and income tickets ID-stamped by them were actually received by them as allegedly evidenced by lack of their initials. This again is at best specious logic and at worst a ridiculous and futile argument. Why would they ID-stamp the income tickets covering safety deposit box collections when they did not actually receive the money? What was the purpose of, and the point in, going through this exercise? No right-thinking and impartial observer would have ever conceived of the reason for such act other than to indicate receipt of the monies covered by the income tickets. It should


furthermore be noted that the witnesses were and still are employees of the complainant bank and therefore biased and under moral pressure to testify in favor of their employer.

One final point on the matter that should be brought out is the hesitant manner or demeanor of the witnesses, which the court may have observed.

4. The testimonies of the prosecution’s key witnesses are inconsistent and contradictory on material points so as to make their testimonies worthless as evidence.

a. The contradictions in the testimony of prosecution and key witness Edna Garcia, the bank cashier. On the witness stand, prosecution witness Garcia testified:

1. In explaining the procedure observed in the handling of Safety Deposit Box rental payments, that: “First, the Custom(er) Relations Assistant would ask the client to give the money to the teller… The client goes to the teller where the client makes the payment…” 18

This directly contradicts the line peddled under oath by the other prosecution witnesses 19 that the accused, as CRA, invariably received or took delivery of SDB clients’ rental payments. This testimony even bolsters the fact that, in fact and in truth, the accused received no money from the bank’s customers.

2. That after the CRA had prepared the income ticket, “the teller presents it to the bank official for validation.” 20

This again directly contradicts the testimonies of other prosecution witnesses 21 regarding the procedure in the handling of SDB rental payments to the effect that the CRA, not the teller, presents the income ticket to the bank official for validation.

b. Drafting of the Notice of Investigation

Carlos Peña, Branch Operations Head of the Greenhills Branch of complainant bank, at first testified on the witness stand that, on instructions of Ernie Santos, the Acting Branch Manager, he “requested one of my [his] staff to type the Notice of Investigation [to the accused]” and then “directly handed it to Mr. Santos.” 22

Fourteen days later, on February 5, 2001, the witness changed his testimony by saying that he referred the matter first to “our Legal,” and then “drafted it first” 23 before giving it to a staff member for typing.







When asked under cross-examination on February 5, 2001 why he still thought it proper to conduct an investigation of the alleged anomaly in the handling of the Peter Li account when he, together with Edna Garcia, believed that the accused practically confessed to him and to Garcia her guilt, Peña made this out-of-this-world response;

“xxx we were just trying to get information from her [fishing expedition?] xxx usap-usapan lang.” 24 [translation: “It is just mere talk.”]

At any rate, it is essential to note that the effect of this investigation is irrelevant and baseless evidence, containing mere unfounded self-serving surmises on the guilt of the accused. The findings in said investigation are immaterial and not binding in these proceedings. The investigation held by the bank representatives is expected to be biased in favor of the bank. Although there purports to be opportunity for the accused to be heard, the partiality of the jury (composed of officers of the bank itself) rendered such opportunity futile and nugatory.

c. Time of meeting of senior branch staff with the accused on May 29, 1996. Branch Operations Head Peña testified on February 5, 2001 that he, along with the other senior branch staff and the accused, had a meeting in the office of Acting Branch Manager Santos on the alleged anomaly concerning the SDB rental payment of bank client Peter Li ”at around 11:00 A.M.” and that the Notice of Investigation was presented to the accused at 11:30 A.M. or 12:00 noon during said meeting. 25

On the other hand, Acting Branch Manager Santos, under direct examination, declared that the meeting actually took place at 10:00 A.M., not 11:00 A.M. 26 — a full one hour difference from the meeting time testified to by Carlos Peña. The contradictory statements of the prosecution’s key witnesses touch on a very material point, suggesting that either or both of them were lying through their teeth.

d. Content of the Notice of Investigation. Prosecution witness Peña said on the witness stand on February 5, 2001 that the Notice of Investigation issued to the accused was in connection with the case of Mr. Peter Li. When cross-examined, however, he admitted that there was nothing such contained in the said Notice, 27 a fact verified by an examination of the document. For his part, Acting Branch Manager, Santos never mentioned a thing about it. This particular matter is likewise very material, since it is customary, nay required standard operating procedure, that a notice of investigation must indicate the





purpose of the investigation, the absence of which exposes the person to be investigated to an ambush in gross violation of his/her right to due process.

e. Bank Procedures. In his testimony on February 5, 2001, Branch Operations Head Carlos Peña declared that he was ignorant of changes in procedures instituted by Branch Cashier Edna Garcia because he was not informed about such changes, implying that Ms Garcia could change the procedures without the necessity of informing him. 28

It is completely unbelievable that an Operations Head is not informed of changes of procedures in his own turf.

f. The Crying Incident. Acting Branch Manager Santos testified that the accused cried inside his office while the meeting was being conducted. 29

On the other hand, Edna Garcia declared on the witness stand that the crying incident took place before the meeting and not in the office of Acting Branch Manager Santos. Operations Head Peña was silent about the matter. Again, contradictory statements on a very material matter, which usually happen when a story is concocted in conspiracy. Ms Garcia also supposedly had the following exchange of words with the accused as follows:

“Ms Carolyn Lim [accused] cried and told me, among others, that “NOON PA DURING THE DAYS WHEN KA CLOSE KO SI GINA. SABI NGA NG KA CLOSE KO PAG KAILANGAN KO NG PERA, GANITO AND GAWIN KO.”[Translation: “Even then when I was close to Gina. She said that whenever I need money, this is what I should do.”] She further told me that one of the reasons why she requested for transfer to another branch is because she could not control herself from doing it anymore. She even told me “FEELING KO ANG GALING-GALING KO NA. HINDI NILA AKO NAHUHULI.” 30 [Translation: “I felt I was very good. They cannot catch me.”]

This is an unnatural and preposterous exchange, if such exchange ever took place, which even caught the unusual attention of the court when the alleged exchange of words was narrated by the witness. All the foregoing inconsistencies and contradictions on material points in the testimonies of the key witnesses negate their value as evidence.




“Inconsistencies such as these in the testimonies of prosecution witnesses have been known to happen, and indeed acquittals have been the result where the inconsistencies and self-contradictions dealt with material points as to altogether erode the credibility of the witness.” 31

“Moreover, when the alleged eyewitnesses contradict themselves, then the element of reasonable doubt is injected and cannot be lightly disregarded.” 32

5. In sum, the bottom line is that there is gross insufficiency of evidence to sustain the indictment or to support a verdict of the guilt of the accused beyond reasonable doubt.

All the foregoing discussions, coupled by the fact of failure of the prosecution to properly offer its exhibits formally, clearly show that the prosecution has miserably failed to prove its case and to overcome the presumption of innocence of the accused.

The presumption can be overcome only by competent and credible proof beyond reasonable doubt. The reasonable doubt should necessarily pertain to the facts constitutive of the crime charged. Discrepancies that touch on significant factors, such as those pointed out above, are crucial on the guilt or innocence of an accused. In criminal prosecution, a reasonable doubt can be created by many things; it is sufficient to prevent a conviction if the doubt arises from the evidence adduced or from the lack of evidence. While no test definitely determines which is and which is not considered reasonable under the law, it must necessarily involve genuine and irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. And these are what the doubt created in this case is based on. It is not mere possible doubt but intelligent, reasonable and impartial doubt based on a careful examination and conscious consideration of all the evidence in the case. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the crime charged. Absolute certainty is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty must be every proposition of proof requisite to constitute the offense. 33

The constitutional presumption of innocence is not an empty platitude meant only to embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual (the accused) pitted against the People of the Philippines and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his/her guilt cannot be proved beyond the whisper of a doubt. The presumption of innocence can only be rebutted by proof beyond reasonable doubt. In order to convict an accused, the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence. For the slightest possibility of an innocent man being




convicted for an offense he has not committed would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated.

At this point, it is well worth repeating what we said at the outset: The prosecution attempted to prove its impossible theory, not by adducing evidence establishing “the precise degree of participation by the accused” as required by the Supreme Court in the case of Gutib vs. Court of Appeals 34 in each and every act of the crime of which she stands charged but by wild presumptions and illogical inferences to show an alleged criminal pattern based on circumstantial or indirect evidence that does not even pass the test of admissibility.

We beg to end this exposition by asking the crucial question: Why is it that, out of 643 separate SDB transactions subject of this case, the complainant bank did not produce a single witness who participated in any of these transactions, such as, for example, Peter Li, the handling of whose SDB payment was allegedly thoroughly investigated by the complainant, to testify definitively to whom among the bank employees concerned his/her SDB cash payment was actually given or delivered? Why? Why?

In light of the foregoing discussions, the accused stands on firm ground that the weight of evidence of the prosecution against her lacks sufficient strength to convict her and thus should fall by itself.

IV. PRAYER

WHEREFORE, it is respectfully prayed that this Honorable Court issue an order DISMISSING the case against the accused for failure of the prosecution to establish proof beyond reasonable doubt of the guilt of the accused.

RESPECTFULLY SUBMITTED.

August 31, 2004, San Juan, M. M. for Pasig City.


AFTER THE PROSECUTION RESTS ITS CASE, WHAT ARE THE OPTIONS OF THE ACCUSED?

THE ACCUSED MAY DO THE FOLLOWING: 1. File a demurrer to evidence with leave or without leave of court 2. Adduce his evidence unless he waives the same

WHAT IS A DEMURRER TO EVIDENCE? It is a motion to dismiss the case filed by the defense after the prosecution rests on the ground of insufficiency of the evidence of the prosecution

It has been said that a motion to dismiss under the Rules of Court takes place of a demurrer, which pleading raised questions of law as to sufficiency of the pleading apparent on the face thereof

In the same manner as a demurrer, a motion to dismiss presents squarely before the court a question as to the sufficiency of the facts alleged therein to constitute a cause of action

WHAT ARE THE WAYS BY WHICH A CASE MAY BE DISMISSED ON THE BASIS OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION?

1. The court may dismiss the case on its own initiative after giving the prosecution the right to be heard 2. Upon demurrer to evidence filed by the accused with or without leave of court

THE PROSECUTION RESTS ITS CASE. THE COURT THINKS THAT THERE IS INSUFFICIENCY OF EVIDENCE PRESENTED. WHAT DOES IT NEED TO DO IN CASE IT WISHES TO DISMISS THE CASE?

The court may dismiss the case on its own initiative after giving the prosecution the right to be heard

WHAT DOES IT MEAN WHEN THE PROSECUTION WOULD BE GIVEN THE RIGHT TO BE HEARD BEFORE THE COURT DISMISSES THE CASE?

The prosecution is given the chance to explain itself of circumstances that may have lead to its failure to adduce enough evidence to support its case

HOW DO YOU FILE A DEMURRER TO EVIDENCE?

Within 5 days after the prosecution rests, the accused should file a motion for leave of court to file a demurrer to evidence, stating in such motion his grounds for such

The prosecution shall have 5 days within which to oppose the motion

If the motion is granted, the accused shall file the demurrer to evidence within 10 days from notice of grant of leave of court

The prosecution may oppose the demurrer to evidence within 10 days from its receipt of the demurrer

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE WITH LEAVE OF COURT?

The effect of its filing is that if the court grants the demurrer, the case will be dismissed

If the court denies the demurrer to evidence filed with leave of court, the accused may still adduce evidence on his behalf

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE WITHOUT LEAVE OF COURT?

If the court denies the demurrer to evidence which was filed without leave of court, the accused is deemed to have waived his right to present evidence and submits the case for judgment on basis of the evidence of the prosecution

This is because demurrer to evidence is not a matter of right but is discretionary on the court

Permission of the court has to be obtained before it is filed, otherwise the accused loses certain rights

THE ACCUSED FILED A DEMURRER OF EVIDENCE WITHOUT LEAVE OF COURT. THE DEMURRER OF EVIDENCE IS DENIED. IS THERE ABSOLUTE WAIVER OF PRESENTATION OF EVIDENCE BY THE COURT?

No

The general rule is that filing of a demurrer of evidence without leave of court, which is subsequently denied, is a waiver of presentation of evidence

Nonetheless, if the demurrer of evidence is filed before the prosecution rests its case, there would be no waiver to present evidence. As the prosecution hasn’t finished presenting its evidence, there is still insufficiency of evidence.

WHAT IS THE EFFECT IF THE DEMURRER IS GRANTED AND THE ACCUSED IS ACQUITTED?

The accused has the right to adduce evidence on the civil aspect of the case unless the court declares that the act or omission from which the civil liability may arise did not exist.

If the trial court issues an order or renders judgment not only granting the demurrer to evidence of the accused and acquitting him but also on the civil liability of the accused to the private offended party, said judgment on its civil case would be a nullity for violation of the rights of the accused to due process.

WHAT IS THE REMEDY OF THE ACCUSED IF THE DEMURRER TO EVIDENCE IS DENIED?

As a general rule, there can be no appeal or certiorari on the denial of the demurrer to evidence, since it is an interlocutory order which doesn’t pass judgment on the merits of the case

In such instance, the accused has the right to adduce evidence on his behalf not only on the criminal aspect but also on the civil aspect of the case

EN BANC

[G.R. Nos. 118940-41. July 7, 1997]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GREGORIO MEJIA y VILLAFANIA, EDWIN BENITO, PEDRO PARAAN, and JOSEPH FABITO,

Accused-Appellants.

D E C I S I O N

DAVIDE, JR., J.:

In the evening of 10 March 1994, along the expressway at Barangay Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter and a passenger, Virgilio Catugas, thereby inflicting upon them multiple stab wounds. Landingin was pulled out from his seat and dumped on the shoulder of the road. One of the attackers took the wheel of the jeepney and drove away. Catugas was thrown out to the middle of the road when the jeepney started to move away. Landingin died as a consequence of the injuries he sustained. Catugas survived.

Held to account for the above acts were Gregorio Mejia, Edwin Benito, Pedro Paraan, Joseph Fabito, Romulo Calimquim, one alias Dennis, Alex Mamaril, one alias Mondragon, and another unidentified person. Mejia and Benito were taken into police custody a few hours after the incident; Paraan, the following day; and Fabito, five days after. Calimquim was found dead three days after the incident in question, while the others have remained at large. Three separate criminal complaints for murder,1 frustrated murder,2 and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as amended)3

were filed against them with the Municipal Trial Court of Sta. Barbara, Pangasinan.

Despite service on them of subpoenas requiring submission of counter-affidavits, accused Mejia, Benito, Paraan, and Fabito did not submit their counter-affidavits.

On 9 May 1994, Judge Lilia C. Espanol issued an order4 declaring the accused to have waived their right to be heard in preliminary investigation; finding a prima facie case against the accused; recommending that they be charged with and prosecuted for the crimes of murder, frustrated murder, and violation of R.A. No. 6539, as amended; and ordering that the records of the cases be forwarded to the Office of the Provincial Prosecutor for appropriate action.

After appropriate proceedings, the Office of the Provincial Prosecutor of Pangasinan filed with the Regional Trial Court (RTC) of Dagupan City three separate informations for murder, frustrated murder, and violation of the Anti-Carnapping Act of 1972, as amended, against the aforenamed persons. The informations were docketed as Criminal Cases Nos. 94-00617-D, 94-00619-D, and 94-00620-D, respectively. The first was later amended. The accusatory portions of the informations read as follows:

CRIMINAL CASE NO. 94-00617-D (as amended)

http://www.chanrobles.com/scdecisions/jurisprudence1997/jul1997/118940_41.php#_edn4




That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives with intent to kill, treachery, evident premeditation and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab TEOFILO LANDINGIN inflicting upon him stab wounds which caused his instant death to the damage and prejudice of his heirs.

Contrary to Art. 248 of the Revised Penal Code as amended by Republic Act No. 7659.5chanroblesvirtuallawlibrary

CRIMINAL CASE NO. 94-00619-D

That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives and with intent to kill, treachery, evident premeditation, and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab VIRGILIO CATUGAS Y CASTAEDA inflicting upon him multiple stab wounds, the accused having then performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused and that is due to the timely and able medical assistance rendered to said Virgilio Catugas y Castaeda which prevented his death to his damage and prejudice.

Contrary to Art. 248 in relation with Art. 6 of the Revised Penal Code.6chanroblesvirtuallawlibrary

CRIMINAL CASE NO. 94-00620-D

That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with knives by means of violence against person by stabbing to death TEOFILO LANDINGIN, owner-driver of a passenger jeep bearing Plate No. APP-432 with marking Lovely and thereafter with intent to gain, conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and feloniously take and drive away said passenger jeep bearing Plate No. APP-432 with marking Lovely owned and driven by Teofilo Landingin without the latters consent, to the damage and prejudice of his heirs.

Contrary to Republic Act 6539 as amended.7chanroblesvirtuallawlibrary

The first two were assigned to Branch 44 of the RTC of Dagupan City presided by Judge Crispin C. Laron (hereafter, LARON court) and thereafter consolidated and jointly tried. The third was assigned to Branch 43 of the said court presided by Judge Silverio Q. Castillo (hereafter, CASTILLO court).

At their arraignments, Mejia, Benito, Paraan, and Fabito entered a plea of innocence in each case.

I




THE CASES IN THE LARON COURT

In Criminal Case No. 94-00617-D (Murder) and Criminal Case No. 94-00619-D (Frustrated Murder) in the LARON court, the prosecution presented the following witnesses: Virgilio Catugas, policemen Dominguillo Gulen and Bernardo Clemente, Dr. Cristito Garcia, Ma. Nora Landingin, and Dr. Roberto Valenzuela. Virgilio Catugas was recalled as rebuttal witness. In their defense, accused Mejia, Benito, Paraan, and Fabito took the witness stand. They also presented as additional witnesses Roberto Lambot, Shirley Lomboy, Conrado Benito, policeman Bernardo Clemente, and Felicidad Fabito in their evidence in chief and Julia Paraan as sur-rebuttal witness.

The evidence for the prosecution in these cases may be summarized as follows:

At around 7:00 p.m. of 10 March 1994, Virgilio Catugas was in front of the CS1 Supermarket in Dagupan City waiting for a transportation to take him to his home at Talibaew, Calasiao, Pangasinan. Later, a passenger jeepney plying the Dagupan City - Calasiao route and driven by Teofilo Landingin arrived. He boarded it and occupied that portion of the passengers' seat behind the drivers seat. There were already some passengers inside the jeepney, but they disembarked before the jeepney reached the boundary of Dagupan City and Calasiao, leaving behind Landingin, Catugas, and two other passengers.8chanroblesvirtuallawlibrary

When the jeepney reached the MacArthur Highway in San Miguel, Calasiao, nine persons flagged down the jeepney and boarded it. One of them, whom Catugas identified to be accused Edwin Benito, sat beside the driver; the rest took the passenger seats behind the drivers seat. Catugas fully recognized Benito because there was light at the ceiling of the jeepney and at the signboard portion of the jeepney and the latter sometimes turned his face toward the back where Catugas was seated. Catugas had further observed Benitos face, ears, and eyes.9 He also recognized accused Mejia, Fabito, and Paraan.10

chanroblesvirtuallawlibrary

The nine passengers told Landingin that they were bound for Pangasinan Village Inn (PVI) in Bued, Calasiao. But when they reached PVI, one of them said that his companions did not know where they were going, and informed Landingin that he would take care of the fare upon reaching Nansangaan, Sta. Barbara, Pangasinan. Upon reaching Nansangaan, one of the nine passengers asked Landingin to drive a little farther. Later, Mejia asked Catugas whether he was Landingins companion; Catugas answered in the affirmative. Mejia then announced: [T]his is a hold-up; while Benito said: [N]obody will be able to be saved his life [sic]. Another companion of Mejia said: Proceed. All of the nine drew their daggers and stabbed Landingin and Catugas.11


Landingin died on that same evening. Dr. Cristito Garcia, who conducted an autopsy on Landingins cadaver, found three stab wounds - two of which were fatal. According to him, the cause of Landingins death was cardiorespiratory arrest resulting from hypovolemic shock due to internal hemorrhage.12 Nora Landingin, wife of Teofilo Landingin, spent P1,500 daily during the wake of her husband; P12,000 for his burial; and P16,000 for the tomb. Nora felt sad because of his death.13








On the other hand, Catugas, who was pushed out of the jeepney and landed on the road, was brought by some people to the Villaflor Memorial Hospital.14 Dr. Roberto Valenzuela performed on Catugas exploratory laparatomy debridement and found three multi-lacerations in the right upper extremities and several others on the left upper extremities which could have been caused by bladed instruments.15 Catugas survived and was confined for seven days. He spent more than P50,000 for his hospitalization and medical expenses. The hospital billed him in the amount of P44,667.25.16


In the same evening of 10 March 1994, while Policeman Dominguillo Gulen of the Mabini Police Station, Mabini, Pangasinan, was approaching his residence at the poblacion in Sual, Pangasinan, on board a police patrol car, he saw six men walking in front of his house. When he stopped the car, the men ran away. He gave chase and caught two of them, namely, accused Mejia and Benito. Gulen thought that they belonged to an akyat-bahay gang. When asked what they were doing, the two answered that they were not doing anything and that they were not robbers. They told Gulen that they were from Sta. Barbara. Benito even showed his drivers license and told Gulen that he did not commit any crime and that he was willing to go to the police station. Gulen then brought the two and turned them over to the police station in Sual, Pangasinan.17


Policeman Bernardo Clemente, who was the desk officer at 1:00 a.m. of 11 March 1994, entered in the police blotter this turn-over and talked to the two. In the course of their conversation, Benito reported that they rode on a jeepney, which was abandoned somewhere in Sual. Clemente decided to make a follow-up of this report. With Benito as their guide, Clemente and three other policemen were able to find the jeepney with the marking LOVELY in Sitio Nipa, Barangay Baguioen, Sual, Pangasinan. The jeepney had bloodstains on the front and back seats. They brought it to the police station and had the matter recorded in the police blotter. Clemente then instructed the radio operator to call the police station of Sta. Barbara and inform it of the turn-over of Mejia and Benito. At 1:45 a.m. of 11 March 1994, the PNP elements of Sta. Barbara Police Station came and received the two, as well as the passenger jeepney.18


Also on 11 March 1994, at 12:00 noon, some concerned citizens of Sual apprehended Joseph Fabito in Sitio Looc, Poblacion Sual, as a murder suspect. He was turned over to the Sual Police Station. After having been informed of this arrest, the Sta. Barbara Police Station took him into its custody. These facts were entered in the Sual Police Station blotter.19


The accused admitted to having flagged down and boarded Landingins jeepney that fateful evening of 10 March 1994, but denied having committed the crimes. They claimed that it was Romulo Calimquim and his companions who killed Landingin, stabbed Catugas, and drove away the jeepney. The following is a summary of their version of the events.

Edwin Benito, a resident of Ventinilla West, Sta. Barbara, Pangasinan, was the driver of the Elf truck of Lito Lomboy of Bued, Calasiao, Pangasinan, which was used in hauling sand and gravel. His co-accused Mejia, Paraan, and Fabito were his helpers.

At around 3:00 p.m. of 10 March 1994, after they completed delivering sand and gravel, the accused returned the truck and went to the house of Fabitos brother-in-law in San







Miguel, Calasiao. After two hours of waiting in vain for the brother-in-law, Paraan suggested that they go to the house of his future brother-in-law in Bacayao Norte, Calasiao. After some snacks they proceeded to the town proper and strolled for a while. Then, Benito thought that it was time to go home to Sta. Barbara and suggested that they should. They proceeded to a waiting shed near the National High School to wait for a transportation for Sta. Barbara. At the waiting shed, they saw Romulo Calimquim with three other companions, who were also waiting for a transportation for Sta. Barbara. Calimquim then flagged down an approaching passenger jeepney. He and his companions boarded it. So did Benito and his companions. Calimquim sat beside the driver. The rest took the back seat.20


According to Paraan, it was Alex Mamaril, the man with a huge body, who sat beside the driver.21


At the junction of the roads leading to the Municipal Hall of Sta. Barbara and that leading to the national highway, the man who sat beside the driver (Calimquim, according to Benito; Mamaril, according to Paraan) ordered the driver to proceed to the national highway; the driver did. But after reaching the highway, in Ventinilla, Sta. Barbara, the former ordered the latter to stop, announced that this is a hold up, then stabbed the driver several times, pulled his body out of the jeepney, took over the wheel, and drove the jeepney.22 In the meantime, at the back seat, one of the companions of Calimquim pointed a knife at Benito; while the others told Benitos companions to lie on their belly. It was when Catugas attempted to fight back that he was stabbed.23 Catugas was then thrown out of the jeepney.24


Benito and his companions were prevented by the group of Calimquim from alighting from the jeepney. Upon reaching a mountain in Sual, Pangasinan,25 the man on the wheel ordered Benito, Mejia, Paraan, and Fabito to alight from the jeepney. The group of Calimquim pointed knives26 and a gun27 at them. Then suddenly there was a light coming from below. They ran away from the group of Calimquim.28


Benito and Mejia were together.29 Later, a policeman saw them. The two told the policeman that they are not "troublesome persons. The policeman brought them to the Police Station of Sual. There, Benito reported what had happened and accompanied the policemen to the place where the jeepney in question was located.30 Afterwards, the two were detained at Sta. Barbara Police Station. While in detention, they were informed that Calimquim was killed and his body was found in Alaminos.31


Paraan lost his way. He returned to Sta. Barbara only on 14 March 1994 and went to the house of Roland, his brother-in-law, in Bacayao Norte, to ask him to request a barangay councilman to accompany him to the police station. It was the barangay captain who accompanied him the following day to the police station. There, the police authorities told him that he was among the assailants of Landingin and that he was the one who stabbed Catugas in the night of 10 March 1994 and one of the suspects in the carnapping of the jeepney of Landingin.32 Paraan was forthwith placed inside the jail.

Fabito stayed for awhile in the mountain. At 2:00 a.m. of 11 March 1994, he was by the seashore. He stayed there until 6:00 a.m. and inquired from someone the location of the














police station. He went to that station which happened to be Sual Police Station. There, he narrated to the policemen what had happened. When a policeman asked him whether he was the killer, he answered in the negative. At around 1:00 p.m., he was brought to the Sta. Barbara Municipal Jail, where he was detained for three months. Then, he was committed to the Provincial Jail.33


Sometime after Catugas was discharged from the hospital and was already driving a tricycle, the parents of the accused met with him and informed him that the accused told them that they (the accused) did not commit any wrong. Catugas answered that he had suffered several wounds and spent much for his hospitalization and that since the accused were the ones apprehended, he would just tell a lie so he could recover the amounts he spent. Catugas then asked P20,000 from each of the accused, or a total of P80,000, and repeated this demand five to six times.34


The defense, through the testimony of Policemen Bernardo Clemente, also proved that Romulo Calimquim died due to a gunshot wound on 13 March 1994 in Barangay Paitan West, Sual, Pangasinan, as evidenced by Entry No. 4338 of Page 260 of the Police Blotter.35


On rebuttal, Catugas insisted that it was accused Edwin Benito who stabbed Landingin and that accused Mejia, Paraan, and Fabito were the ones who stabbed him. He further declared that it was the parents of the accused who offered to pay him, but he refused because such an offer could not be accepted by [his] conscience.36


The defense then presented Julia Paraan as surrebuttal witness. She denounced as untrue the testimony on rebuttal of Catugas that the parents of accused were the ones who offered to pay him money. Julia declared that they visited Catugas to ask him whether it was true that their children committed the crime. On their first visit, Catugas told them that he could not yet answer that question; but when they returned, Catugas told them that they had to pay the aggregate sum of P80,000, or P20,000 per family of the accused.37


The trial court gave full credit to the version of the prosecution and relied heavily on the identification of the accused by Catugas, the absence of ulterior motive on the part of the latter, and the offer of the parents of the accused to compromise the cases.

In its decision dated 17 November 1994,38 the LARON court convicted accused Mejia, Benito, Paraan, and Fabito of the crime of murder and of frustrated murder, with treachery as the qualifying circumstance and nighttime and band as aggravating circumstances. Accordingly, it sentenced the first three accused to suffer the penalty of death for the crime of murder; and ten years and one day of prision mayor to seventeen years, four months, and one day of reclusion temporal for the crime of frustrated murder. It credited Paraan with the privileged mitigating circumstance of minority, he being only seventeen years old at the time of the commission of the crimes charged; and sentenced him to reclusion perpetua for murder, and six years of prision correccional to ten years and one day of prision mayor for frustrated murder. The Court also ordered the four accused to pay the heirs of Teofilo Landingin the amounts of P50,000 as death indemnity; P16,000 for the cost of the tomb; and P12,000 for funeral expenses; and to pay Catugas the amount of P44,687.25 for hospital expenses, plus costs.







II

THE CASE IN THE CASTILLO COURT

In Criminal Case No. 94-00620-D (violation of the Anti-Carnapping Act) in the CASTILLO Court, the prosecution presented as its witnesses Virgilio Catugas and Nora Landingin. The former was recalled as rebuttal witness. The accused Mejia, Benito, Paraan, and Fabito took the witness stand and presented as additional witnesses Conrado Benito and Felicidad Fabito. Their testimonies were substantially the same as those they made in the murder and frustrated murder cases in the LARON court.

Prosecution witness Virgilio Catugas added that after Landingin was stabbed, he was thrown out of the jeepney to the shoulder of the road and that one of the culprits took the wheel of the jeepney, started off its engine, and drove off.39 He further declared that while he was confined at the hospital, the policemen of Sta. Barbara investigated him, showed him pictures of the suspects, supplied the suspects names,40 and took his statement.41 After he was discharged therefrom, he was able to talk with the father of accused Benito. He told the father of his hospitalization expenses and asked P80,000, as a settlement of the case, to be paid by the parents of the accused on an agreed date; but before that date came, he had already testified against the accused.42


Prosecution witness Nora Landingin, widow of Teofilo Landingin, further testified that her husband owned the passenger jeepney in question, as evidenced by Certificate of Registration No. 19253856,43 and Official Receipt No. MVRR 91354948.44 The jeepney was worth P140,000.45


The CASTILLO court gave full faith to the testimony of Virgilio Catugas. It debunked the version of the defense on account of the following inculpating evidence, which, according to it, bolstered its finding that the accused were the authors of the crime charged:

1. Accused Gregorio Mejia, Edwin Benito, Joseph Fabito and Pedro Paraan speak of innocence and fear for their lives during the ruthless incident, unfortunately they never sustained any bodily injury on their bodies.

If the intention of Mok Calimquim and company is to hurt anybody, they could not have concentrated on the persons of Teofilo Landingin and Virgilio Catugas only but they should have also inflicted stabbing thrusts against their persons (accused).

2. They (accused) posited that for fear of their lives they did not do anything except to passively stay at the back seat of the jeepney motionless from the place of stabbing incident in Sta. Barbara, Pangasinan up to the mountains in Sual, Pangasinan.

Again, if one of the motives of Mok and company is to carnapp [sic] the passenger jeepney of Teofilo Landingin then the logical conclusion that can be had in the instant situation is for the group of Mok to liquidate the driver and all passengers for that matter, including the four (4) accused to eliminate the presence of eyewitnesses.








Unfortunately, the four (4) accused joined the group of Mok in going to Sual, Pangasinan without offering any slight resistance in the premises.

The natural conclusion that can be derived thereat is that, Mok and company belonged to the group of the four (4) accused who were responsible in perpetrating the offense charged.

3. Assuming en gratia argumenti that Mok and company are the real offenders, why is it that during the long span of travel from Sta. Barbara to Sual, they never made any attempt to jump off the passenger jeepney; neither did they show any positive signs to invite the attention of PNP members stationed along the long route starting in Dagupan City, Binmaley, Lingayen, Bugallon, Labrador, Pangasinan.

4. Accused Gregorio Mejia and Edwin Benito steadfastly claim innocence of the crime charged. In fact, they averred that upon reaching Sual, Pangasinan, they reported to the responding peace officers what happened to them and that their reports was recorded in the Police Blotter of Sual Station.

The assertion of accused Benito and Mejia is tainted with absolute falsity and is debunked by the entry in the Police Blotter of Sual Police Station (Exh. G); the subject certification negates accuseds statement of innocence. The subject entry which is contained in the Book of Events of Sual Police Station belies any complaint/report made by accused Edwin Benito/Gregorio Mejia that they were kidnapped or deprived of their liberty with the use of guns and bladed weapons. Upon the other hand, the Certification squarely bespeaks of the incarceration/detention of said accused (Mejia and Benito) at Sual Police Station for they were suspected of having carnapped the passenger jeepney involved in the above case.

5. With respect to accused Joseph Fabito and Pedro Paraan, they likewise vehemently denied the accusation lodged against them. Unfortunately, their conclusion of innocence crumbled when they joined the group from the crime scene starting in Sta. Barbara, Pangasinan up to their destination in Sual, Pangasinan. In fact when they reached Sual, Pangasinan they scampered and run away to different directions to avoid apprehension.

Instead of proceeding to the Sual Police Station or making any report to the nearest authority i.e. Barangay Captain of the place they decided to escape which they did with impunity. The records in the Police Blotter of Sual is negatived (sic) of any entry about the whereabouts of accused Paraan and Fabito.46


The court then convicted accused Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito guilty of the violation of the Anti-Carnapping Act of 1972, as amended. It sentenced the first three accused to death; and Paraan, to reclusion perpetua on account of the privileged mitigating circumstance of minority. It also ordered them to pay the costs.

III

THE APPEALS AND ASSIGNMENT OF ERRORS


Although review in cases where the death penalty is imposed by the trial court is automatic pursuant to Section 22 of R.A. No. 7659,47 the convicted accused filed with this Court their notices of appeal from the decision of the LARON court and of the CASTILLO court on 18 November 1994 and 22 February 1995, respectively.

Criminal Cases Nos. 94-00617-D and 94-00619-D were docketed in this Court as G.R. Nos. 118940-41, and Criminal Case No. 94-00620-D was docketed as G.R. No. 119407.

On 2 February 1996, after they filed separate Appellants Briefs in G.R. Nos. 118940-41 and in G.R. No. 119407, the appellants filed a motion for the consolidation of these cases, which we granted on 27 February 1996.

In their Appellants Brief in G.R. Nos. 118940-41, the appellants impute upon the trial court the following errors: (a) in giving full faith and credence to the unsubstantiated testimony of prosecution witness Virgilio Catugas relative to the incident in question; (b) in holding them as the persons who stabbed the jeepney driver and Virgilio Catugas in the evening of 10 March 1994 despite the fact that clear and convincing evidence were proffered to point at the real culprits, Romulo Calimquim and his companions; (c) in rendering a verdict of conviction notwithstanding the failure of the prosecution to prove their guilt beyond reasonable doubt; and (d) in convicting them of the crimes charged instead of the crimes homicide and frustrated homicide -- on the assumption that they are guilty.

Being interrelated, the appellants discussed jointly these assigned errors. They submit that:

(1) The uncorroborated testimony of Catugas on the identification of the appellants leaves much to be desired. He should not be believed, for he could not even remember who among the appellants were wearing short pants, hat, and shoes at that time. If policeman Gulen could not even identify in court appellant Mejia whom he apprehended in the evening of 10 March 1994 and brought to the Sual Police Station, it was with more reason that Catugas could not have identified the assailants since it was nighttime. The possibility that Catugas got confused, if not mentally and physically drained, as a result of the shocking incident is not far-fetched. There is then a very strong and compelling reason to believe that Catugas mistook the appellants as the real hold-uppers.

(2) Catugas told Conrado Benito and Felicidad Fabito that their children did not commit any wrong, but Catugas vacillated and testified falsely against accused-appellants when they were not able to produce the amount of P20,000.00 each as earlier demanded from them. Catugas denial of their testimony is self-serving and cannot overcome the positive testimony of Conrado and Felicidad.

(3) The actuations of appellants specifically that of Edwin Benito augurs well with their claim of innocence, when they were apprehended. Benito readily showed his drivers license, answered questions propounded by policeman Clemente, and without hesitation he helped or guided the policemen in locating the jeepney at the place where it was abandoned. He did not try to hide or conceal anything when he was confronted about the incident. Moreover, when Benito and Mejia were picked up by a policeman on that fateful night, they were not tainted with blood.


(4) On the assumption that they are guilty they could only be liable for homicide and frustrated homicide, since treachery was not established.

In their Appellants Brief in G.R. No. 119407, they make the following assignment of errors: (a) the facts charged in the information do not constitute violation of the crime of Anti-Carnapping Act of 1972, as amended; (b) The court a quo erred in convicting them of the crime charged on the basis of surmises and conjecture; and (c) the court a quo erred in convicting them by relying fully on the evidence of the prosecution and completely disregarding the evidence of the defense.

As to the first, the appellants argue that intent to gain, which is an essential ingredient of the crime of carnapping,was not proved.They claim that from the evidence adduced it is very clear that the incident was only a hold-up and that the jeepney was taken to Sual as escape vehicle.

In support of the second and third assigned errors, which they discussed jointly, the appellants submit that:

(1) The trial courts conclusion on their culpability was based on mere surmises and conjectures and contradicted by the evidence on the record. The fact that the group of Calimquim did not hurt any of the four appellants and that the latter offered no resistance does not prove appellants membership in Calimquims group. That they did not even jump off the passenger jeepney or show positive signs to invite the attention of the PNP stationed along the route from Dagupan City to Sual, it was because of fear since Calimquims group pointed knives at each of them and ordered them to lie down in stooping position. The absence of conspiracy was shown by the fact that in Sual, after they were released as hostages, they ran in separate directions and did not join the group of Calimquim.

(2) The entry in the Sual Police Station police blotter that Benito and Mejia were suspected of having carnapped the passenger jeepney does not bind them, for it was made by a police officer and was contrary to what they had reported.

(3) There is no basis for the conclusion that Paraan and Fabito had escaped.

(4) The trial court should not have relied on the testimony of Catugas whose identification of the appellants was based only on the pictures and on the information of the policemen. It was impossible for Catugas to narrate in detail the participation of each accused, considering that the light in the jeepney was dim and his principal attention was concentrated on defending himself.

(5) Appellants reporting of the incident disproved their membership in the group of Calimquim. If they were members, their natural course would have been to hide from the authorities. Their voluntary submission to the police immediately after the incident should have been given credence as part of the res gestae.

In the Consolidated Appellees Brief, the Office of the Solicitor General (OSG) urges us to affirm in toto the challenged decisions for failure of the appellants to show that the trial court committed error in finding the prosecution evidence clear, sufficient, and convincing to convict. Catugas, who made an eyewitness account, had the opportunity to observe the appellants during the commission of the crime and had no ill-motive to implicate the appellants falsely. As to the charge that he perjured because the appellants

were not able to produce the amount of P80,000 which he allegedly demanded from them, the same should not be believed. The truth is, it was the parents of the appellants who approached Catugas and offered him P80,000 in order that he would not testify against the appellants. Catugas did not accept the offer, as it was against his principles to tell a lie.

The OSG also maintains that treachery was duly proved and, hence, the trial court was correct in convicting the appellants of murder for the death of Teofilo Landingin and frustrated murder for stabbing Virgilio Catugas. Their conviction for violation of the Anti-Carnapping Act is also proper, since their main purpose was to get the jeepney and they killed Landingin in order that they could get it. They presented no evidence to prove that they ran away with the jeepney for any lawful purpose.

In their Consolidated Reply Brief, the appellants try to show that the identification made by the prosecution witness Catugas cannot be denominated as clear, positive, and convincing; for, while it may be true that he could have taken glimpse or glance at the faces of all the accused-appellants, this fact alone is not adequate and fell short of the required test of positive identification. They strongly suggest that Catugas had ill-motive to testify falsely against them in that he was not paid the P80,000 he demanded.

IV

THE CRIMES COMMITTED AND THE ISSUE OF CULPABILITY OF APPELLANTS

Before we go any further, remarks on some procedural matters are in order. The crimes charged in the informations filed before the LARON court and CASTILLO court are irretrievably linked with or related to one another. They arose out of the same incident, are founded on the same factual milieu, and would be proved by testimonies of the same witnesses. The three cases then should have been consolidated and jointly tried in one branch of the RTC of Dagupan City. What were jointly tried were only the cases for murder and frustrated murder. Section 14 of Rule 119 of the Rules of Court provides:

SEC. 14. Consolidation of trials of related offenses. Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the courts discretion.

The purpose or object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigants.48 In Raymundo v. Elipe,49 we held that although consolidation of several cases involving the same parties and the same subject matter is one addressed to the sound discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same judge, or even filed with the different branches of the same court, provided one of such cases has not been partially tried.

We are unable to understand why neither the LARON court or the CASTILLO court nor any of the parties caused, or moved for, a consolidation of the case for violation of the Anti-Carnapping Act (which has the higher docket number) with the cases for murder and frustrated murder in the LARON court (which have lower docket numbers). It was



only after the filing of their separate Appellants Brief in G.R. Nos. 118940-41 and in G.R. No. 119407 that the appellants moved to consolidate the latter with the former.

This failure to consolidate the three cases at the trial court level could contribute some difficulty in the appreciation of the evidence. The principal witnesses of the parties testified in all the three cases. Yet, the assessment of their testimony and credibility in the LARON court must not be influenced by their testimonies in the case before the CASTILLO court, and vice versa. In the LARON court, prosecution witness Catugas was unclear in some details of the incident, but clear in the CASTILLO court. Upon the other hand, there were details he disclosed in one of the courts which were not given in the other court. The same observation may be had on the testimonies of the appellants before both courts. As one reads the transcripts of the testimonies of these witnesses in both cases, it would be quite difficult to avoid forming impressions in light of the totality of their testimonies in both courts. Our minds and mental processes must be kept away from the pitfalls of such impressions, for the rules on evidence and the constitutional presumption of innocence in favor of the appellants dictate that we resolve the appeals in the cases before the LARON court and the case before the CASTILLO court solely on the basis of the evidence presented before such courts, respectively.

The next preliminary matter to be resolved is whether the crimes of murder in Criminal Case No. 94-00617-D and frustrated murder in Criminal Case No. 94-00619-D are absorbed in the violation of the Anti-Carnapping Act in Criminal Case No. 94-00620-D.

R.A. No. 7659 which took effect on 31 December 199350 is applicable to these cases because the crimes were committed on 10 March 1994. Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A. No. 7659 and now imposes the penalty of reclusion perpetua to death when the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. This Section, as amended, reads in full as follows:

SEC. 14. Penalty for Carnapping. -- Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (Underscoring supplied for emphasis).

In the original Section 14 of R.A. No. 6539, the last clause read as follows:

and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped vehicle is killed in the commission of the carnapping. (stress supplied).

Three amendments have thus been made, viz: (1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the


phrase in the commission of the carnapping to in the course of the commission of the carnapping or on the occasion thereof. The latter makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form. In short, considering the phraseology of the amended Section 14,51 the carnapping and the killing (or the rape) may be considered as a single or indivisible crime or a special complex crime which, however, is not covered by Article 48 of the Revised Penal Code.

Since Section 14 of R.A. No. 6539 uses the words IS KILLED, no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion thereof makes no difference insofar as the penalty is concerned.

It follows then that the killing of the driver, Teofilo Landingin -- whether it be homicide or murder -- cannot be treated as a separate offense, but should only be considered to qualify the crime of carnapping.

Nonetheless, although there could only be one single offense of qualified carnapping or carnapping in an aggravated form, the prosecution had still to prove the essential requisites of the homicide or murder of Landingin and that of carnapping. This should have been another reason for the consolidation of the carnapping case in the CASTILLO court with the cases before the LARON court.

But do the words "IS KILLED" in the last clause of Section 14 of R.A. No. 6539, as amended, include the crime of frustrated murder or homicide? Put a little differently, does murder or homicide in its frustrated stage also qualify carnapping if it is committed in the course of the commission of the carnapping or on the occasion thereof? The answer must be in the negative in light of the use in said Section 14 of the words IS KILLED. The unmistakable import thereof is that it refers only to the consummated felony of either murder or homicide.

If attempted or frustrated murder or homicide is committed in the course of the commission of the carnapping or on the occasion thereof, then it must be deemed to fall under the clause (of Section 14) when the carnapping is committed by means of violence against or intimidation of any person.

We shall now take up the issue of the culpability of the appellants.

The evidence adduced by the prosecution has established beyond reasonable doubt the carnapping of Teofilo Landingin's passenger jeepney, which is a motor vehicle under the definition in Section 2 of R.A. No. 6539.52 The passenger jeepney was taken, with intent of gain, from Landingin by means of violence against him which caused his death and against a passenger, Virgilio Catugas, who suffered physical injuries.

But, has the prosecution established with moral certainty the guilt of the appellants? The LARON and the CASTILLO courts held that it did.



Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved.53 To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution.54 Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf.55


In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accuseds innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged.56 If the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed; it is, even more, the court's constitutional duty to acquit him.57


After a painstaking review of the records and the transcripts of the stenographic notes of the testimonies of the witnesses in the cases before the LARON court and the CASTILLO court, we are not convinced with moral certainty that the appellants committed the crimes charged. Reasonable doubt burdens our conscience; our minds cannot rest easy on a verdict of conviction.

The prosecution had nine suspects in these cases: the four appellants and the five others, namely, Romulo Calimquim, Alex Mamaril, a certain Dennis, a certain Mondragon, and another described as John Doe. All nine were forthwith charged with the crimes of murder, frustrated murder, and carnapping in Criminal Cases Nos. 3310,58 3313,59

3311,60 respectively, of the Municipal Trial Court of Sta. Barbara, Pangasinan, and then in the informations in Criminal Cases Nos. 94-00617-D,61 and 94-00619-D62 of the LARON court and Criminal Case No. 94-00620-D63 of the CASTILLO court, respectively.

The theory of the appellants is that they were not members of the group of Romulo Calimquim. The prosecution has no proof to prove otherwise; but the LARON and the CASTILLO courts, through inferences from certain facts, concluded that the appellants were. The conclusion is rather tenuous. While the rigorous cross-examination of the appellants in all these cases has established close relationship among the appellants by reason of their residence and work, (Benito, as sand-and-gravel truck driver and Mejia, Fabito, and Paraan as his keepers), it miserably failed to establish any relationship between them and the five others headed by Calimquim. What then looms large in our minds is that the appellants and the five others happened to be passengers of Landingins jeepney by accident, not by design. If the appellants were with the five others until Sual, Pangasinan, it was because they were intimidated and made to lie down on their bellies inside the jeepney.












Another circumstance further proves that the appellants did not belong to the group of Calimquim. Upon arrival in the mountains of Sual, they fled from the Calimquim group when the first opportunity to do so came. We find to be absolutely without basis the statement of the CASTILLO court that the appellants abandoned Landingins jeepney in Sitio Nipa, Baquioen, Sual, Pangasinan, upon seeing the arrival of concerned citizens and members of the Sual Police Station; the responding peace officers effected the recovery of the subject jeepney sans the accused/culprits. No prosecution witness so testified. In the CASTILLO court, no policeman was presented as witness for the prosecution. The evidence presented by both the prosecution and the defense reveal that after appellants Benito and Mejia were picked up by Policeman Gulen on the latters suspicion that they were members of an akyat-bahay gang, they voluntarily informed the police authorities of the Sual Police Station of what had happened. It was this information that brought the policemen to where the subject jeepney was located. Benito even accompanied the policemen. This resulted in the recovery of the jeepney by the policemen. Appellant Paraan also presented himself later to the Police Station of Sta. Barbara. Appellant Fabito, although apprehended by concerned citizens of the place to where he had fled, voluntarily reported what he knew to the police authorities of Sual and Sta. Barbara.

Unfortunately, the CASTILLO court relied heavily on the entries in the police blotters of the police stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court is not conclusive evidence that they did not report the incident to the police authorities. They had no participation in the preparation of the entries. Entries in the police blotters should not be given undue significance or probative value, for they are normally incomplete and inaccurate sometimes from either partial suggestion of for want of suggestion or inquiries.64 The entries in question are sadly wanting in material particulars. At the very most, they only recorded the impression that the appellants were suspects.

As to the alleged participation of the appellants in the commission of the crimes, the prosecution had to rely solely on the testimony of Virgilio Catugas. The totality of his testimony in the cases before the LARON court leaves much to be desired. The prosecutor who conducted the direct examination was unable to propound sensible questions to elicit clear answers bound to reconstruct faithfully the events surrounding the commission of the alleged crimes. This deficiency thus tempted the trial judge to ask more questions. Despite the latters participation, the testimony of Catugas fails to convince us that the appellants indeed participated in the commission of the crimes. On cross-examination in the LARON court, Catugas categorically admitted that he did not know the names of the appellants and that he could recognize only three of the nine accused. Thus:

ATTY. TAMINAYA:

Q Now, in paragraph 8 of your statement, you said and you mentioned the names of the person and I will now read:

Q How about the true names of the suspect, do you know them?

A In fact I do not know, however, based on the police investigation of Sta. Barbara PNP, they were, Gregorio Mejia, Edwin Benito, Joseph


Fabito, Pedro Paraan, Mok Calimquim, alyas Dennis, Alex Mamaril, Dennis Abrigo alyas Mondragon and one unidentified person.

can you tell this Court why these persons were written in your statement?

A Because of the police investigation.

Q So, were it not of the police and the pictures, you were not able to identify the accused, is that correct?

A I can recognize the others, sir.

Q How many of the nine (9) can you recognize?

A Three (3) of them, sir.

COURT:

Q What you do mean when you said that that you can recognize three (3) of them?

A I can remember those persons who sat near me.

Q Who of the four (4) accused who sitted [sic] near you?

A The one wearing red T-shirt, the second to the last of the four accused.

Q So, how were you able to identify these [sic] person who is [sic] wearing in [sic] red T-shirt?

A I saw his face, sir.

Q How were you able to recognize the last person (referring to Edwin Benito)?

A He was besides [sic] the driver, Sir.65chanroblesvirtuallawlibrary

Further indicating the uncertainty of his identification, he made the following admissions on cross-examination:

Q Now, you said you recognized the persons who sat besides [sic] the driver, is it not?

A Yes, sir.

Q Please point to him?

A He was wearing a dark color.

Q Was it a T-shirt or a polo shirt?

A I cannot tell, sir.

Q How about the person sitting in front of you whom you pointed to this person wearing in red T-shirt?

A I can no longer remember, sir.

Q How about the person next to the one with red t-shirt, do you remember his shirt?

A I dont know, sir.

Q How about Gregorio Mejia, do you remember his clothes?

A I cannot remember, sir.


Q You cant remember also whether one of these accused was wearing a hat at that time?

A I cannot remember, sir.

In the case before the CASTILLO court, he declared that he was stabbed by the nine persons. Thus:

COURT:

Q Who were involved in stabbing?

A All of them, sir.

Q Who was the assailant and who was stabbed?

A The 9 persons, sir.

Q When you said 9 persons, they were the 9 persons who participated in the stabbing incident and who were the victims?

A Me and the driver, sir.

PROS. MARATA:

Q How many times were you stabbed by the nine persons, four of whom were inside the courtroom?

A From the scar left of my body, there are 22 stabbed wounds, sir.66chanroblesvirtuallawlibrary

Yet, no further questions were asked for him to convincingly show that the appellants inflicted any of the stab wounds on his body. Further compounding the uncertainty and unreliability of Catugas testimony, he candidly admitted on cross-examination that only one person stabbed him. Thus:

ATTY. TAMINAYA:

Q How many times were you stabbed by them?

A Twice, sir.

Q And you cannot recognize the person who stabbed your?

A I can identify him, sir.

Q How many persons stabbed you then?

A Only one (1) person, sir.67chanroblesvirtuallawlibrary

Upon further questioning by the court, Catugas declared that six of the nine stabbed him:

COURT:

Q How many stab wounds did you sustain?

A More than twenty (20) stab wounds, sir.

Q A while ago you mentioned there were two (2) initial stab blows with respect to the other stab blow who delivered this stab blow?

A His companions and also Gregorio Mejia, sir.



COURT:

Proceed.

ATTY. TAMINAYA:

Q When you said his companions and Gregorio Mejia are you referring to the five (5) other persons as the companions of Gregorio Mejia who participated in stabbing you?

A I think it is about six (6) of them who stabbed me, sir.68chanroblesvirtuallawlibrary

He could not remember anymore the person who inflicted the last stab wound, and then declined to point to anyone of the herein four appellants as the person who did it. Thus:

COURT:

Q When they stopped stabbing you they did not stab you anymore?

A They still stabbed me on my right upper arm, sir. (Witness showing his scar near the shoulder.)

Q You said you were stabbed on your right shoulder, who stabbed you among these nine (9) persons?

A I could not remember anymore, sir.

Q When you said you cannot remember, you cannot tell this Court whether it was one among the four (4) accused in this case who stabbed you on your right upper arm?

A I could not point the person responsible in stabbing my shoulder because that is the last stab wound, sir.69


It would thus be sheer speculation and conjecture to conclude from Catugas testimony in the CASTILLO court that the appellants had inflicted any of the stab wounds on Catugas.

Moreover, on question by the trial judge in the CASTILLO court, Catugas categorically admitted that none of the appellants participated in the stabbing of Landingin. Thus:

COURT:

x x x

Q These two persons who participated in stabbing Teofilo Landingin, can you inform the Court if the four (4) accused now or these two persons are among the four (4) accused now?

A They are not here, sir.70chanroblesvirtuallawlibrary

Finally, Catugas was not entirely free from any ulterior motive in implicating the appellants. He admitted that he demanded P80,000 from the parents of the appellants, but before they could give the money on the agreed date, he testified against the appellants in the LARON court. The following exchanges between him and counsel for the defense before the CASTILLO court are revealing:

ATTY. TAMINAYA:

Q After you were released from the hospital, were you able to talk with the father of Edwin Benito?




A Yes, sir.

Q And you told them about your expenses in the hospital, is that correct?

A Yes, sir.

Q And you demanded from them to pay P40,000.00 is that correct?

A I was asking P80,000.00, sir.

COURT:

Q Why were you asking the amount of P80,000.00 then?

A Because he pleaded to me, sir.

Q What you are trying to convey to the Court is that you are settling the case with Edwin Benito the amount of P80,000.00?

A Yes, sir.

COURT:

Proceed.

ATTY. TAMINAYA:

Q And the parents of Edwin Benito cannot pay that P80,000.00 because they are poor?

A They will not pay that amount on that date, we have agreed of another date for them to pay, sir.

COURT:

Q Did the parents of Edwin Benito made a counter offer?

A That is already their counter proposal, sir.

Q What you want to tell the Honorable Court is that you agreed to pay you P80,000.00 but he cannot pay you at that very moment?

A Yes, sir.

COURT:

Proceed.

ATTY. TAMINAYA:

Q Did you agree for the amount of P80,000.00?

COURT:

That is the settlement money.

ATTY. TAMINAYA:

Q So, it is clear that if only they have given P80,000.00, you should not have testified in this case?

A PROSECUTOR MARATA:

Improper, your honor.

ATTY. TAMINAYA:

As follow-up question, your Honor.

COURT:

Sustained. Hypothetical.

ATTY. TAMINAYA:

Q You said that there was the agreed date, what happened on the agreed date?

A The date has not yet arrived but I have already testified, sir.

COURT:

Q When you said you have already testified, you are referring to your testimony in RTC Branch 44?

A Yes, sir.71chanroblesvirtuallawlibrary

In the LARON court, efforts were made by the prosecution to cushion the impact of Catugas demand for payment of P80,000 in consideration of his exculpatory testimony. It wanted to prove that the parents of the appellants were in fact the ones who proposed. But the testimony of Conrado Benito, which the prosecution failed to satisfactorily rebut, is that the parents went to see him to verify whether their children had indeed committed the crimes; but Catugas replied that since the appellants were the ones apprehended, he would just pinpoint them so that he could recover what he had spent. He then demanded P80,000, which he equally apportioned among the parents of the four appellants. Conrado Benito testified as follows:

Q What did you tell him?

A I told him that our children telling us that they did not commit any wrong and I told them to tell the truth and we are not consenting them to whatever they have done if they have done something wrong.

Q What was the answer of Virgilio Catugas?

A He said, he suffered several wounds and that he spent so much for his hospitalization, and he said also that they were the persons who were apprehended and so, I will just tell a lie for the same because how could I collect for the amount I spent if I will not tell a lie?

COURT:

Q You consider Virgilio Catugas as a liar and you are not a liar?

A Yes, sir.

ATTY. TAMINAYA:

Q Can you tell this Court what did you tell him about that expenses?

A I said, then we can at least help you, because he is saying that he suffered several wounds.

Q How much did Virgilio Catugas tell you?

A The last time that we talked, he ask[ed] us to give P20,000.00 each.


COURT:

Q How many times did he tell you?

A For 5 to 6 times because he told us to return to him.72chanroblesvirtuallawlibrary

But the parents could not deliver the P20,000 each was to pay, for they could not afford it. Conrado so declared, thus:

ATTY. TAMINAYA:

Q When Virgilio Catugas told you to give P20,000.00, can you tell this court if he made mention to the wife of Teofilo Landingin?

A Because he is collecting from us P20,000.00, he told us that we would not tell the same to Mrs. Landingin.

Q Were you able to give that P20,000.00?

A No sir, not even a single centavo.

Q Why?

A We cannot pay because even payment for attorneys fees, we cannot afford.73


The LARON court gave credence to the version of the prosecution and even took the incident as offer of compromise, which may be considered an implied admission of guilt. Said court misapplied Section 27 of Rule 130 of the Rules of Court.74 There is no evidence whatsoever that any of the appellants authorized his parents to approach Catugas or knew the matter of payment of P80,000. Moreover, if one were to believe the explanation of Catugas that the amount of P80,000 represented the expenses he incurred for his hospitalization and medical bills, then the offer to reimburse it is not admissible in evidence as proof of criminal liability pursuant to the last paragraph of Section 27 of Rule 130.

On the whole then we entertain, unavoidably, serious doubt on the participation of the appellants in the commission of the crimes charged.

WHEREFORE, the challenged decisions in Criminal Case No. 94-00617-D (for Murder) and Criminal Case No. 94-00619-D (for Frustrated Murder) of Branch 44 and in Criminal Case No. 94-00620-D (violation of Anti-Carnapping Act of 1972) of Branch 43 of the Regional Trial Court of Dagupan City are REVERSED. Accused-appellants Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito are ACQUITTED on the ground that their guilt therefor has not been proved beyond reasonable doubt or with moral certainty. Their immediate release from detention is hereby ordered, unless other lawful and valid grounds for their further detention exist.

No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur.

Puno, Hermosisima, Jr., and Torres, Jr., JJ., on leave.




Endnotes:1 Original Record (OR), Criminal Case No. 94-0617-D, 7.

2 OR, Criminal Case No. 94-00619-D, 10.


4 OR, Criminal Case No. 94-00617-D, 19; OR Criminal Case No. 94-00619-D, 17; and OR, Criminal Case No. 94-00620-D, 26.




8 TSN, 20 July 1994, 4; TSN, 22 July 1994, 4-6.

9 Id., 9-13.

10 Id.,16-18.

11 TSN, 20 July 1994, 5-7.

12 Exhibit F; OR, Criminal Case No. 94-00617-D, 9; TSN, 9 August 1994, 5-7.

13 TSN, 25 July 1994, 2-3.

14 TSN, 20 July 1994, 9.

15 TSN, 25 July 1994, 7-8.

16 TSN, 20 July 1994, 9.

17 TSN, 27 July 1994, 3-9.

18 TSN, 27 July 1994, 12-18.

19 Id., 19-22. Exhibits E to E-2 inclusive.

20 TSN, 10 August 1994, 3-10; TSN, 11 August 1994, 4-6.

21 TSN, 17 August 1994, 9-10.

22 TSN, 11 August 1994, 9-15.

23 Id., 11-13; TSN, 10 August 1994, 15- 16, 29, 32.

http://www.chanrobles.com/scdecisions/jurisprudence1997/jul1997/118940_41.php#_ednref23























24 TSN, 17 August 1994, 13.

25 TSN, 11 August 1994, 19.

26 TSN, 24 August 1994, 18.

27 TSN, 26 August 1994, 9.

28 Id., 21-22; TSN, 24 August 1994, 18.

29 Id., 19.

30 TSN, 10 August 1994, 23-24.

31 Id., 26.

32 TSN, 11 August 1994, 20-21, 25-26; TSN, 17 August 1994, 4-5.

33 TSN, 26 August 1994, 11-13.

34 TSN, 2 September 1994, 13-14; TSN, 14 September 1994, 3-5.

35 TSN, 7 September 1994, 4.

36 TSN, 16 September 1994, 5-7.

37 TSN, 19 September 1994, 3-5.

38 OR, Criminal Case No. 94-00617-D, 99-111; Rollo, G.R. Nos. 118940-41, 35-47.

39 TSN, 10 August 1994, 13-15.

40 TSN, 17 August 1994, 9-10; TSN, 24 August 1994, 21.

41 Exhibit A, OR, Crim. Case No. 94-00620-D, 12-13.

42 TSN, 17 August 1994, 15-17.

43 Exhibit B, OR, Crim. Case No. 94-00620-D, 100.

44 Exhibit C, Id., 99.

45 TSN, 31 August 1994, 4-5,8.

46 OR, Criminal Case No. 94-00620-D, 162-164; Rollo, G.R. No. 119407, 30-32.

47 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, which took effect on 31 December 1993 (People v. Simon, G.R. No. 93028, 234 SCRA 555 [1994]).

























48 1 C.J.S. Actions 108, 1343; Cojuangco v. Court of Appeals, 203 SCRA 619, 632 [1991].

49 42 SCRA 615, 629 [1971].

50 Supra, note 47.

51 As distinguished, for instance, from the phraseology of Section 1 of P.D. No. 1866 on qualified illegal possession of firearm,

where murder or homicide is committed with the use of an unlicensed firearm -- the assailant is also liable for murder or homicide in view of the clear intent of the law to respect and preserve the latter as a distinct offense under the Revised Penal Code and to increase the penalty for illegal possession of firearm where such firearm is used in killing a person. (People v. Quijada, 259 SCRA 191 [1996]).

52 The term "Motor Vehicle" is defined therein as any vehicle propelled by any power other than muscular power using the public

highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles which run only on rails or tracks and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes.

53 Sec. 14(2), Article III of the Constitution.

54 Sec. 2, Rule 133, Rules of Court.

55 People v. Garcia, 215 SCRA 349, 358-359 [1992].

56 People v. Dramayo, 42 SCRA 59, 64 [1971]; People v. Aguilar, 222 SCRA 394, 407-408 [1993].

57 People v. Pido, 200 SCRA 45 [1991]; People v. Cordova, 224 SCRA 319, 348 [1993].


59 Id., Criminal Case No. 94-00619-D, 10.





64 People v. Casinillo, 213 SCRA 777, 790 [1992].

65 TSN, 22 July 1994, 15-17.

66 TSN, 10 August 1994, 11.

67 TSN, 24, August 1994, 14.

68 Id., 15.

69 Id., 9.























70 Id., 13.

71 TSN, 17 August 1994, 15-17.

72 TSN, 2 September 1994, 13-14.

73 TSN, 2 September 1994, 16-17.

74 The Section reads as follows:

SEC. 27. Offer of compromise not admissible. -- In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury.

G.R. No. 130594 July 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AKMAD SIRAD, ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused.ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused-appellants

PARDO, J.:

The witness for the prosecution Rita Pino testified that she saw the motorcycle of George Lozano ridden by three men when it passed by the cotton farm in barangay Cabuway, General Santos City.6 She was able to identify the accused. She was unwavering in her declaration. According to the accused-appellants,

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there were inconsistencies between the signed statement of Rita Pino that "she was invited to go to the police station to identify the suspects"7 and her statements in open court that "she came to the police station out of her own volition"8 which placed a doubt on her credibility. This is not the first time that the Court will hold that discrepancies between the statements of an affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinate in importance to open court declarations.9

Republic of the PhilippinesSUPREME COURT

FIRST DIVISION

G.R. No. 130594 July 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AKMAD SIRAD, ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused.ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused-appellants

PARDO, J.:

The issue is what is the quantum of circumstantial evidence that will be sufficient to convict the accused-appellants. This Court had on many occasions ruled that circumstantial evidence would suffice when, " (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."12

The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like weaving a tapestry of events that will culminate in a clear picture that will reveal a convincing scenario pointing towards the accused as the author of the crime.

In the case at bar, the circumstances are as follows:

1....Martillano Lozano and Rita Pino saw the familiar red motorcycle of George Lozano passed by the cotton farm at around 9:00 a.m. on February 4, 1992;





2....At around 12:00 noon, Martillano and Rita Pino saw the motorcycle of George Lozano without the bread box pass by with the three accused riding on it;

3....At about 10:00 p.m. the dead body of George Lozano was found at the ranch of Bernardino Lozano about three (3) meters away from the cotton farm where Rita and Martillano was gathering left over cotton;

4....The three accused riding the motorcycle were driving away from the direction where the body of George Lozano was found;

5....Orlie Sultan and Akmad Sirad were riding the motorcycle of the victim, when they were apprehended by police officers on February 8, 1992;

6....Akmad Sirad explained to the police officers that he was in possession of the motorcycle because he was instructed by Salik Amino to deliver it to Sultan Kudarat; and

7....Rita Pino and Martillano Lozano identified accused-appellants and their co-accused Akmad Sirad.

The above circumstances established by the prosecution successfully overcome the constitutional presumption of innocence and established the guilt of the accused-appellants beyond reasonable doubt.

In a last ditch effort to exculpate themselves from the crime charged, accused-appellants raise the issue of the illegality of their identification by the prosecution's witnesses at a police line-up. According to accused-appellants, the identification was in violation of their constitutional right to counsel because there was no counsel present at the time. Further, they alleged that their investigation shifted from investigatory to accusatory for they were considered as primary suspects.

We disagree with accused-appellants. When they were apprehended, they were riding the motorcycle of the deceased George Lozano, and to make things worse, they fled when they were asked by the police to stop. Possession of a stolen property creates the presumption that the possessor stole it. Adding the fact that they fled when asked by the police to stop, it is just normal and more likely that they would be considered primary suspects.

Accused-appellants hold the view that their identification in the "police line-up" was a violation of their constitutional rights and thereby inadmissible in evidence. We disagree. In People vs. Timon,13 we held that "[I]n resolving the admissibility of and relying on out of court identification of suspects, courts have adopted the totality of circumstances test where they consider following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure."

Applying this totality of circumstances test to the case at bar, we rule that there is no violation of the constitutional rights of accused-appellants. The witnesses positively identified the three accused inside the jail. The three accused were in the company of other inmates. Thus, they were in a group. The police officers did not in any way


influence the witnesses. All they did was to ask the witnesses to identify the three accused they saw riding the motorcycle. The identification took place on February 10, 1992, only a few days after the incident.

Furthermore, appellant's allegation of suggestiveness in the identification is unsubstantiated. The identification of accused-appellants was effected through a zealous investigation of the police. The accused-appellants' allegation of irregularity, maltreatment and torture has not been proven, ergo, the investigators are presumed to have performed their duties regularly and in good faith.

Also, in People vs. Lapura14 and People vs. Pacistol15 we ruled that "[T]he uncounselled identification made at the police station, however, did not foreclose the admissibility of the independent in-court identification."

It is, however, necessary for the Court to correct the error of the trial court in convicting the accused of the crime of carnapping with homicide. During the commission of the crime, which was on February 4, 1992, there was no crime denominated as carnapping with homicide. The proper denomination for the crime is carnapping as defined and penalized under of Republic Act No. 6539, Sections 2 and 14. Under Republic Act No. 6539, Section 14, the penalty for carnapping in case the owner, driver or occupant of the carnapped motor vehicle is killed in the course of the commission of the carnapping shall be reclusion perpetua to death. Considering that at the time of the commission of the crime the death penalty was suspended, accused are hereby sentenced to reclusion perpetua.

In conformity with prevailing jurisprudence, the trial court correctly awarded the amount of P50,000.00 as civil indemnity for the death of the victim. Anent moral damages, the victim's widow testified that the death of her husband left her with six children to support, thus, she does not know what to do. Moral damages which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries and the victim's death as in this case.16

The trial court failed to consider the fact that under Article 2206 of the Civil Code, in addition to civil indemnity of P50,000.00 for the death of the victim, the accused-appellants are also jointly and severally liable for the loss of the earning capacity of the deceased and such indemnity should be paid to the heirs of the latter. The widow Nenita Lozano testified that her husband was employed as a deliveryman for bread and was earning P300.00 a day before his death and that they had six children and the deceased was 42 years old.

:




Republic Act No. 6539, otherwise known as An Act Preventing and Penalizing Carnapping, defines carnapping, thus:

Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things.[Ibid., sec. 2]

Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal act and hence presumed from the unlawful taking of the vehicle. [15 Unlawful taking, or apoderamiento, is the taking of the vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. [16

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