Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.32 Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused33 and is considered as hearsay against them.34 The reason for this rule is that: on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.35 An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1

THIRD DIVISION

G.R. No. 177727               January 19, 2010

HAROLD V. TAMARGO, Petitioner,
vs.
ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents.

D E C I S I O N

CORONA, J.:

This is a petition for review on certiorari¹ of the November 10, 2006 decision² and May 18, 2007 resolution³ of the Court of Appeals (CA) in CA-G.R. SP No. 93610.

Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna.⁴

After conducting a preliminary investigation and on the strength of Geron’s affidavit, the investigating prosecutor⁵ issued a resolution dated December 5, 2003 finding probable cause against Columna and three John Does.⁶ On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle.⁷ Columna was arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial.⁸

On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.⁹ The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by Columna in the Office of the City Prosecutor of Manila.¹⁰

On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor¹¹ who subjected him to clarificatory questions.¹²

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the elections and Licerio was acquitted by the Sandiganbayan.¹³

During the preliminary investigation, respondent Licerio presented Columna’s unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columna’s jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no participation in the killings.¹⁴ Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter.

Due to the submission of Columna’s letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any violence had been employed to obtain or extract the affidavit from him.¹⁵1avvphi1

Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor.

Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He requested that he be transferred to another detention center.¹⁶

Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ).¹⁷ On May 30, 2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder.¹⁸ He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was enough evidence to prove the probable guilt of respondents.¹⁹ Accordingly, the Informations were filed and the cases were consolidated and assigned to the RTC of Manila, Branch 29.²⁰

However, on August 12, 2005, Secretary Gonzales granted the Antipordas’ motion for reconsideration (MR) and directed the withdrawal of the Informations.²¹ This time, he declared that the extrajudicial confession of Columna was inadmissible against respondents and that, even if it was admissible, it was not corroborated by other evidence.²² As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioner’s MR.

The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 2005.²³ Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columna’s March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006.

Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188.

In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columna’s extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy.

After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for certiorari of respondents Antiporda.²⁴

Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition.

The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents.

Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columna’s recantation.

Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columna’s extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta.

We find no merit in the petition.

It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the merits of the motion.²⁵ It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie case.²⁶ The court must itself be convinced that there is indeed no sufficient evidence against the accused.²⁷

We agree with the CA that Judge Daguna limited herself only to the following: (1) Columna’s affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutor’s recommendation to file the murder charges.²⁸

She completely ignored other relevant pieces of evidence such as: (1) Columna’s May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit.

We declared in Jimenez v. Jimenez²⁹ that

[although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.³⁰ (Emphasis supplied)

Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point:

The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.³¹

Moreover, Judge Daguna failed to consider that Columna’s extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta.

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.³² Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused³³ and is considered as hearsay against them.³⁴ The reason for this rule is that: on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.³⁵

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court:

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession.³⁶ Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy.³⁷ Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them.³⁸

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them.

Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through a full blown court case.³⁹ When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation.⁴⁰ The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the warrant of arrest issued by Judge Daguna.⁴¹

Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion.

Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents.

WHEREFORE, the petition is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

RENATO C. CORONA
Associate Justice
Chairperson

WE CONCUR:

CONCHITA CARPIO MORALES Associate Justice	PRESBITERO J. VELASCO, JR. Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Associate Justice
Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Under Rule 45 of the Rules of Court.

² Penned by Associate Justice Lucas P. Bersamin (now Supreme Court Justice) and concurred in by Associate Justices Martin S. Villarama, Jr. (now Supreme Court Justice) and Monina Arevalo-Zenarosa of the Seventh Division of the Court of Appeals. Rollo, pp. 34-60.

³ Id., pp. 63-70.
⁴ Id., p. 35. The full text of the September 12, 2003 affidavit read:

1. About a week before August 15, 2003, I was in the house of Lucio Columna at Battalan, Lasam and there we drank gin together and stayed with him for several hours since we are close friends. In the course of our conversation we talked about the chances of Atty. Franklin Tamargo to win his election protest in the election for mayor of Buguey, Cagayan, and I told him what I heard that Atty. Tamargo was winning in the protest, Lucio Columna immediately said he could bet that Atty. Tamargo could not sit and assume as mayor even if he wins. Later I learned that Atty. Tamargo was killed last August 15.

2. Last week, Lucio Columna and I were again together in the morning in our Barangay and he asked me to drink gin with him, and we continued drinking until about noon time. When he had drunk much, he told me "Awanen ni boss mon nga Tamargon, pinapatay ni Lloyd. Dakami pay ket di ti pimmatay." (Your boss Tamargo is already gone, he was ordered killed by Lloyd. In fact, we were the ones who killed him). He also said "Tamargo ka, Antiporda ak, no kayat mo saan ka nga agusubli diay Buguey yen ta awan met ni boss mon, agdakua ta ti negosyo ditoyen." (You are for Tamargo and I am for Antiporda; if you want, do not go back to Buguey anymore since your boss is already gone so that we can be together in business here). I know he is in the business of selling "shabu" and marijuana.

3. I decided to come to Manila to tell the family what I know. I was shown the sketch of the face of suspect and I can say that the front side closely resembles that of Lucio Columna, and I am executing this freely and willingly to attest to its truth in court.

⁵ Assistant Prosecutor Bernardino R. Camba.

⁶ I.S. No. 031-26335. Id., p. 500.

⁷ Docketed as Criminal Case Nos. 04-223270 and 04-223271. Id., pp. 72, 236-237, 469.

⁸ Id., p. 36.
⁹ We reproduce here the full text of the March 8, 2004 affidavit:

Na ako po ay humihingi ng tulong upang ibigay ko ang buong katunayan ng pangyayari sa pagkamatay nila ATTY. FRANKLIN TAMARGO at ng anak na babae nito habang nakasakay sa kanilang kotse;

Na hindi po ako ang bumaril sa kanila;

Na ang bumaril po ay si ROMULO AWINGAN Aka MUMOY na taga Aparri, Cagayan at ang nagutos ay sila MAYOR LLOYD ANTIPORDA ng Buguey, Cagayan at ang TATAY niya na si EX-MAYOR LICERIO ANTIPORDA JR. Aka BOY.

Na noong July 20, 2003 habang nagmamaneho ako ng Multicab biyaheng Aparri-Dugo ay pinara ako ni MUMOY AWINGAN sa Tallungan Aparri at sinabi niya kung gusto kong sumama sa grupo nila. Sabi ko naman ay ihahatid ko lang ang pasahero ko sa Dugo. Pagkatapos noon ay binalikan ko sila sa Tallungan. Nang magkausap na kami ni MUMOY AWINGAN ay sinabi niya na may PROJECT sila at si ATTY. FRANKLIN TAMARGO na kalaban ni MAYOR ANTIPORDA sa BUGUEY. Kung gusto ko raw sumama sa PROJECT na yun. Nang sumagot ako ng OO ay isusurvey lang daw nila ang lugar. Sinabi rin niya na isasama nila ako kay MAYOR ANTIPORDA;

Na noong August 10, 2003 ay inabangan ako nila MUMOY AWINGAN sa Tallungan, Aparri Cagayan at sinama nila ako, kasama si RICHARD MECATE at isa pa na hindi ko kilala pero mamumukhaan ko ito kung makikita ko ulit. Pumunta na kami sa bahay na malaki sa POBLACION ng BUGUEY CAGAYAN. Pagdating [namin] doon ay may lumabas na lalaki na si MAYOR LLOYD ANTIPORDA at sinabihan ni MUMOY AWINGAN sa kanya ng ‘SIR? ITO ANG MAKAKASAMA NAMIN’, tapos sumagot si Mayor Antiporda ng GOOD at agad tinanong sa akin kung kilala ko si ATTY. TAMARGO at sinagot ko ng "OO" naman. Tapos nakita ko na may inabot na sobre kay MUMOY;

Na noong bumalik na kami sa Aparri Cagayan ay kumuha ng pera si MUMOY at inabutan ako ng limang libong piso (₱5,000.00) at sabi sa akin ay ADVANCE LANG yun para makaluwas sa Maynila agad;

Na noong ding araw na iyon ay nagpunta kami ng Maynila kasama sina MUMOY AWINGAN, RICHARD MACATE at yung hindi ko alam ang pangalan. Bumaba kami bago dumating ng Terminal ng Florida Bus Line;

Na noong August 14, 2003 ay sumakay kami sa isang kotse na minaneho ng isang lalaki at pumunta kami sa Quezon City Jail at kinausap [namin] si Ex-Mayor Antiporda na nakakulong doon. Sinabi sa amin ni Ex-Mayor na masamang tao si Atty. Tamargo dahil ipinakulong siya nito na walang kasalanan at dapat lang siya maparusahan. Sinabi pa niya dadagdagan ang bayad pag natapos ang misyon [namin];

Na ang misyong iyon ay para PATAYIN si ATTY. TAMARGO;

Nang humigit kumulang alas dos ng hapon petsa 15 ng August 2003 ay isinama kami sa isang bahay sa Bago Bantay Quezon City. Na sinabi na bahay ni Mayor Lloyd Antiporda at doon sa garahe ay may dalawang motorsiklo. Hindi nagtagal ay umalis din agad kami kasama si Mumoy Awingan, Richard Mecate at yung isa pa na sakay ng dalawang motorsiklo, magkaangkas sina Mumoy at Richard. Ang nagmamaneho ay si Richard at dalawa naman kami ng lalaki na hindi ko kilala sa isang motorsiklo. Nagmaneho ang lalaki na angkas ako. Pagdating [namin] sa Escolta, Manila ay bumaba si Mumoy at kami naman ay naghintay sa isang lugar na malapit sa kinaroroonan nila;

Nang pasado alas singko ng hapon ng petsa ding iyon ay nakita [namin] na palapit si Atty. Tamargo sa kanyang kotse kaya kami ay pumuwesto sa kabilang [kanto];

Nang nasa loob na si Atty. Tamargo at minamaneho na ang kotse ay nakita kong lumipat na si Mumoy sa may gawing kaliwa ng kotse kung saan pumasok si Atty. Tamargo at kanya ng pinagbabaril.

Na habang binabaril niya si Atty. Tamargo ay nagsilbing LOOK OUT lang kami at pagkatapos noon ay tumakas na kami sakay sa dalawang motorsiklo at tumuloy na kami sa sakayan ng bus papuntang Cagayan;

Na nang dumating na kami sa Cagayan sa Dugo Camalaniugan ay bumaba na kami at bago kami naghiwalay ay inabutan ako ulit ni MUMOY ng limang libong piso;

Na nakikiusap po ako na dito na lamang makulong (Det. Jail, WPD) para sa aking proteksyon;
Na ginawa ko po itong pagtatapat ng kusang loob upang patunayan ang mga naganap na pangyayari.
Na panunumpaan at pipirmahan ko po iyan patunay na lahat ng sinabi ko ay [pawang] katotohanan lamang. (Id., pp. 36-38.)

¹⁰ Id., pp. 323, 436.
¹¹ Assistant City Prosecutor Venus D. Marzan.
¹² Rollo, p. 472.
¹³ Id., pp. 98-99.
¹⁴ The full text of the May 3, 2004 letter read:

DEAR SIR,

SA PAMAMAGITAN NG PAKIUSAP AT PAYO NI RET. CORONEL SEVERINO PURIGAY NA KASAMA KO NGAYON NA NAKAKULONG SA MANILA CITY JAIL SA QUEZON CITY BLVD. STA. CRUZ, MLA. MINABUTI KONG SUMULAT SA INYO AT IPARATING ANG AKING PANIG SA KASONG "DOUBLE MURDER" NA KUNG SAAN KAYO AT ANG INYONG AMANG SI GINOONG LICERIO ANTIPORDA AY ISINANGKOT SA PAGPATAY SA YUMAONG ATTY. FRANKLIN TAMARGO.

AKO AY SI MANUEL COLUMNA JR. [29] TAONG GULANG DRIVER, AT NAKATIRA SA BRGY. ZIMINILA CAMALANIUGAN, CAGAYAN. NAARESTO AKO NOONG FEB. 18, 2004 SA SAPPING, CAMALANIUGAN SA BISA NG WARRANT NA GALING SA BRANCH 27 NG MANILA RTC. SA KASONG DOUBLE MURDER NA IBINASE SA SINUMPAANG SALAYSAY NI GERALDO GERON NG LASAM, CAGAYAN NA SIYANG NAGSUMBONG SA AKIN SA PAMILYA NG MGA TAMARGO DITO SA MANILA ANG PAGSIRA SA AKING PAGKATAO AT KINABUKASAN NG WITNESS NA ITO. SA [PAMAMAGITAN] NG PAGSISINUNGALING AY DAHIL MARAHIL SA GALIT O INGGIT SA AKIN. SA BUONG BUHAY KO AY HINDI PA AKO NAGKAROON NG KASO O NAKULONG KAHIT MINSAN KUNDI NGAYON LANG. BAGO KO ITO ISINULAT AY INAROK KONG MABUTI ANG KONSENSYA AT HINDI KO TALAGA KAYANG ITULOY ANG MAGSINUNGALING NA GAYA NG GUSTO NILANG MANGYARI AT ITURO KAYO BILANG MASTERMIND SA PAGPATAY[.] AYAW KONG MAGKASALA SA DIYOS SA PAGTESTIGO SA ISANG KASINUNGALINGAN.

NANIWALA AKO NA MAY DIYOS NA NAKAKAALAM NG KATOTOHANAN AT BUONG KATAPATAN KONG SABIHIN SA INYO NA NASA LASAM, CAGAYAN, AKO NOONG AUGUST 15, 2003 NA SINASABI NILANG ARAW NG PAGPATAY KAY ATTY. TAMARGO. NI MINSAN AY HINDI KO PA NAKITA ANG BIKTIMA AT HINDI KO ALAM [ANG] KANYANG MUKHA HANGGAT HINDI SINABI SA AKIN NG MGA PULIS NA DUMAKIP SA AKIN AY HINDI KO ALAM KUNG BAKIT "DOUBLE MURDER" (KUNG SINO PA ANG NAMATAY) AT KUNG SAAN NANGYARI NA SINABI NILANG SA BINONDO RAW NA HINDI KO PA NARATING NA LUGAR.

MULA NOONG ARAW NA INARESTO AKO AY MARAMING "TORTURE" ANG DINAANAN KO SA MGA KAMAY NG MGA TAGA-RSOB NG RECOM NG CAGAYAN AT SA WPD[.] NARANASAN KONG MAISUPOT ANG ULO, MABUGBOG, AT MAKURYENTE KAYA NAPILITAN AKONG PIRMAHAN ANG MGA PAPELES NA INIHANDA NILA BUKOD SA PANANAKOT NA I-SALVAGE DAW (AKO) KUNG HINDI AKO MAKIKOOPERA SA KANILA.

HUMIHINGI AKO NG UNAWA SA INYO LALO NA’T NALATHALA SA DIARYO ANG PANGALAN NINYO NA NAKAKASIRA SA [INYO] PERO INTINDIHIN NYO AKO, NA NAUNA NG NASIRA ANG PANGALAN KO AT KINABUKASAN KO SA KASONG NAKASAMPA NA LABAN SA AKIN.

SANA AY MATUTULUNGAN TAYONG LAHAT PARA MALUTAS ANG KRIMENG NANGYARI[,] MAPARUSAHAN ANG TOTOONG SALARIN, AT MAKAMITAN NATIN ANG HUSTISYA. (Id, pp. 38-39.)

¹⁵ Id., p. 40.
¹⁶ Id., pp. 75, 239-240. The letter read:

October 29, 2004
KAGALANGGALANG NA FISCAL GARCIA:

Ako po ay sumulat sa inyo upang humingi ng tulong sa aking kalagayan dito sa loob ng Manila City Jail kung saan ang akin pong buhay ay nalalagay sa panganib.

Ito po ay dahil sa aking Sinumpaang Salaysay na kung saan ang mga Antiporda ang aking itinuro na nagutos sa pagpaslang kay Atty. Tamargo.

Noong nakaraang Biyernes ako po ay ipinatawag ni Fiscal Marzan upang patunayan kong muli ang aking naunang salaysay at ako po ay [nakahanda] upang ang aking salaysay ay muli kong mapatunayan at gusto ko rin pong isiwalat ang ginawa sa akin ng ibang tao dito sa loob ng piitan nang aking pong tanggihan na pumirma sa inihanda nilang salaysay na pumapabor sa mga Antiporda at nais ko rin pong ibigay ang aking inihandang salaysay kasama ang Medical Certificate.

Sir, hindi ko po masabi kung ano ang gusto kong sabihin kay Fiscal Marzan dahil noong gabing iyon ako po ay pinagbantaang papatayin kung muli kong patunayan ang aking salaysay. Kung kaya sa pagdinig ng kaso kay Fiscal Marzan kung saan ay naroon din sina Mayor Antiporda at kanyang anak ay aking nasabi kung ano ang mga sinabi sa [akin] ng mga Antiporda.

Kaya po sana sir ay mailipat po ako sa ibang piitan dahil baka ako po ay mapatay kung ako ay magsabi ng katotohanan upang mabigyan ng hustisya ang pagkamatay ni Atty. Tamargo.

¹⁷ Id., pp. 320-338.
¹⁸ Id., pp. 96-104.
¹⁹ Id., p. 102.
²⁰ Id., pp. 236.
²¹ Criminal Case Nos. 05-237561 and 05-237562.
²² Rollo, pp. 41, 105-107.
²³ Id., p. 71.
²⁴ Id., pp. 286-314.

²⁵ Gandarosa v. Flores, G.R. No. 167910, 17 July 2007, 527 SCRA 776, 793.

²⁶ Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, 7 August 2007, 529 SCRA 274, 282, citing Santos v. Orda, Jr., G.R. No. 158236, 1 September 2004, 437 SCRA 504, 516..

²⁷ Fuentes v. Sandiganbayan, G.R. No. 139618, 11 July 2006, 494 SCRA 478, 485.

²⁸ Rollo, pp. 72-75.
²⁹ G.R. No. 158148, 30 June 2005, 462 SCRA 516.
³⁰ Id., pp. 528-529
³¹ Rollo, p. 54.
³² This is expressed in Section 28, Rule 130 of the Rules of Court.

SEC. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.

³³ People v. Vda. De Ramos, 451 Phil. 214 , 224 (2003).

³⁴ People v. Tizon, Jr., G.R. No. 133228-31, 30 July 2002, 385 SCRA 364, 388, citing People v. Suarez, G.R. No. 111193, 28 January 1997, 267 SCRA 119.

³⁵ Supra note 33, pp. 224-225.
³⁶ People v. Morial, 415 Phil. 310, 336 (2001).

³⁷ People v. Tena, G.R. No. 100909, 21 October 1992, 215 SCRA 43, 48-49, citing Montoya v. Baun, 44 O.G. 4382, cited in Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part I, 1990 Edition, p. 349.

³⁸ People v. Surigawan, G.R. No. 83215, 15 December 1993, 228 SCRA 458, 465, citing People v. Badilla, 48 Phil. 718, 725 (1926) and People v. Ferry, 66 Phil. 310 (1938).

³⁹ R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 395, citing Salonga v. Cruz Pano, G.R. No. L-59524, 18 February 1985, 134 SCRA 438, 461-462.

⁴⁰ Sistoza v. Desierto, 437 Phil. 117, 138 (2002), citing Cabahug v. People, 426 Phil. 490, 510 (2002).

⁴¹ Rollo, p. 441.

res inter alios acta rule. This rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused because it is considered as hearsay against them.

SECOND DIVISION

G.R. No. 191752               June 10, 2013

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
JOSE ARMANDO CERVANTES CACHUELA and BENJAMIN JULIAN CRUZ IBANEZ, Accused.
BENJAMIN JULIAN CRUZ IBANEZ, Accused-Appellant.

D E C I S I O N

BRION, J.:

We decide the appeal filed by appellants Jose Armando Cervantes Cachuela and Benjamin Julian Cruz Ibanez assailing the August 7, 2009 decision¹ of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 03474. The CA decision affirmed with modification the July 14, 2008 decision² of the Regional Trial Court (RTC), Branch 196, Parañaque City, finding the appellants guilty beyond reasonable doubt of the special complex crime of robbery with homicide, and sentencing them to suffer the penalty of reclusion perpetua.

The prosecution’s evidence revealed that on July 23, 2004, Ibañez went to Weapons System Corporation (WSC) on board an old car, and told Henessy Auron, WSC’s Secretary and Sales Representative, that he was the one who bought a gun barrel at the company’s gun show in SM Megamall. Ibañez inquired from Henessy about the schedule and the rates of WSC’s firing range and the amount of the membership fee of its gun club. He also asked the days when there are many people in the firing range, and whether Henessy was WSC’s only female employee.³

At around 9:00 a.m. of July 26, 2004, Henessy arrived at WSC and rang the doorbell, but no one opened the door. She went to the back of the office where the firing range was located, and called Zaldy Gabao, another employee of WSC. Zaldy answered from inside the store but Henessy did not understand what he said. Henessy returned to the front door and called again. Zaldy replied that he could not open the door because his hands were tied. Henessy called Raymundo Sian, the company’s operations manager, and informed him that Zaldy’s hands had been tied. After one hour, the police arrived; they opened the gate at the back using acetylene. When Henessy and the police entered the premises, they saw that Zaldy had been handcuffed to the vault. Zaldy informed the police that the company’s gunsmith, Rex Dorimon, was inside the firing range. The police entered the firing range, and saw the lifeless body of Rex.⁴ Dr. Voltaire Nulud conducted an autopsy on the body of Rex, and found that the victim suffered several gunshot wounds on the head, thorax and abdomen, caused by a .45 pistol.⁵

The National Bureau of Investigation (NBI) received an information from an asset that the group of Cachuela was involved in the robbery of WSC and in the killing of one of its employees; and that Cachuela had been looking for prospective buyers of firearms. The NBI formed an entrapment team and proceeded to Bacoor, Cavite to execute the operation. Upon their arrival, Melvin Nabilgas approached them and told them that he had been sent by Cachuela and Ibañez to look for buyers of firearms. The police introduced themselves and told Nabilgas that they were conducting an entrapment operation against the suspects of the robbery at WSC. Nabilgas surrendered to the police, and gave the names of the other persons involved in the crime.⁶

Thereafter, the asset contacted Cachuela and informed him that Nabilgas had already talked to the buyers, and that they would like to see the firearms being sold. Cachuela set up a meeting with the buyers at a gasoline station in Naic, Cavite. NBI Special Investigator Allan Lino, Supervising Agent Jerry Abiera and the asset went to the agreed place. Cachuela came and talked to them, and brought them inside his house where Cachuela showed them several firearms. When the agents inquired from Cachuela whether the firearms had legal documentation, the latter sensed that the meeting was a set-up. The NBI agents arrested Cachuela before he could make any move. The agents recovered four (4) firearms⁷ from Cachuela’s house, including a .9 mm Bernardelli with serial number T1102-03E000151.⁸

The NBI conducted a follow-up operation on Ibañez whom the asset also contacted. Ibañez directed the asset to bring the prospective buyers to his residence in Imus, Cavite. The NBI agents went to Imus and there met Ibañez whom they saw inside a Nissan California car bearing plate no. PMN 645. Lino, Abiera and the asset entered the car, and asked Ibañez where the firearms were. Ibañez brought out two (2) firearms, and showed them to the agents. The agents asked whether the guns had legal documentation; they then arrested Ibañez when they sensed that he was already becoming suspicious. The agents recovered two guns from Ibañez, viz.: a .45 Glock 30 with serial number FML 245 and a .45 Llama with serial number 04490Z.⁹

At the NBI Main Office, Zaldy pointed to the appellants, during a police line-up, as the persons responsible for the robbery at WSC and for the killing of Rex.¹⁰ Nabilgas also executed a handwritten confession implicating the appellants and Zaldy in the crime.¹¹

The prosecution filed an Information¹² for robbery with homicide before the RTC against the appellants, Nabilgas and Zaldy, docketed as Criminal Case No. 04-0943. The accused all pleaded not guilty on arraignment.¹³ Trial on the merits ensued thereafter. During trial, Zaldy died.¹⁴

In its decision dated July 14, 2008, the RTC found the appellants guilty beyond reasonable doubt of the special complex crime of robbery with homicide, and sentenced them to suffer the penalty of reclusion perpetua. It also ordered them to pay, jointly and severally, the heirs of Rex ₱50,000.00 as civil indemnity and ₱50,000.00 as moral damages. The trial court likewise ordered the appellants to pay Hector C. Rodriguez, Jr.¹⁵ ₱1,563,300.00, representing the value of the firearms and ammunitions stolen from WSC. Excepted from the conviction was Nabilgas whom the RTC acquitted on ground of reasonable doubt.

The appellants filed an appeal with the CA, docketed as CA-G.R. CR.-HC No. 03474. In its decision of August 7, 2009, the CA affirmed the RTC decision with the following modifications: (a) the appellants were ordered to pay Arms Depot Philippines, Inc. the amount of ₱1,093,947.50, representing the value of the stolen firearms and ammunitions from WSC, with interest at the rate of 6% per annum from the date of the decision until fully paid; and (b) they are likewise ordered to pay, jointly and severally, the heirs of Rex ₱45,000.00 as actual damages with interest at the rate of 6% per annum from the date of the decision until fully paid.

The CA held that the following pieces of circumstantial evidence showed that the appellants robbed WSC and killed Rex during the course of this robbery: (1) Ibañez visited WSC two days before the robbery and asked several questions from Henessy; (2) a robbery occurred at WSC where 53 firearms and several ammunitions worth ₱1,563,300.00 had been stolen; (3) among the firearms stolen were a .9 mm Bernardelli with serial number T1102-03E000151 and a .45 Glock 30 with serial number FML 245; (4) Rex, a gunsmith working in WSC, was found dead at the firing range; (5) Rex sustained gunshot wounds on different parts of his body; (6) Cachuela and Ibañez were caught trying to sell the .9 mm Bernardelli, with serial number T1102-03E000151, and the .45 Glock 30, with serial number FML 245, respectively, in separate entrapment operations; and (7) Cachuela and Ibanez were unable to explain how they came into possession of the stolen firearms.

The CA ruled that the totality of these circumstances point to the appellants as the perpetrators of the special complex crime of robbery with homicide. It disregarded the appellants’ defenses of alibi, denial and frame-up for being self-serving. The CA likewise found unmeritorious the appellants’ argument that the firearms confiscated from them were inadmissible in evidence, pointing out that the seizures were the result of lawful entrapment operations. It further held that the appellants failed to impute any ill or improper motive against the police officers who conducted the entrapment operations.

Our Ruling

In this final review, we deny the appeal, and resolve to increase the amount for restitution by the appellants to Arms Depot Philippines, Inc. from ₱1,093,947.50 to ₱1,481,000.00.

"A special complex crime of robbery with homicide takes place when a homicide is committed either by reason, or on the occasion, of the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed. A conviction requires certitude that the robbery is the main purpose, and objective of the malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery."¹⁶

Admissibility of the out-of-court
identification and the extrajudicial
confession

Lino testified that Zaldy identified the appellants as the persons involved in the robbery of WSC and in the killing of Rex in a police line-up held at the NBI Main Office on Taft Avenue, Manila. We note that Zaldy did not testify in court since he was brought to the National Center for Mental Health, and subsequently died there during the trial. For this reason, we examine with greater scrutiny Lino’s testimony regarding Zaldy’s alleged out-of-court identification.

People v. Algarme¹⁷ explains the procedure for out-of-court identification and the test to determine its admissibility, as follows:

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face-to-face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose x x x In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the 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. [italics and emphasis supplied]

In the present case, Lino merely stated that Zaldy, during a police line-up, identified the appellants as the persons involved in the robbery of WSC and in the killing of Rex. Lino did not state when the line-up took place; how this line-up had been conducted; who were the persons in the line-up with the appellants (if there were indeed other persons included in the line-up); and whether the line-up was confined to persons of the same height and built as the appellants. Lino likewise did not indicate who accompanied Zaldy before and during the line-up, and whether there had been the possibility of prior or contemporaneous improper insinuations on Zaldy regarding the appearance of the appellants.

To our mind, Lino’s failure to state relevant details surrounding the police line-up is a glaring omission that renders unreliable Zaldy’s out-ofcourt identification. No way exists for the courts to evaluate the factors used in determining the admissibility and reliability of out-of-court identifications, such as the level of certainty demonstrated by the witness at the identification; the length of time between the crime and the identification; and the suggestiveness of the identification procedure. The absence of an independent in-court identification by Zaldy additionally justifies our strict treatment and assessment of Lino’s testimony.

The records also bear out that Nabilgas executed an extrajudicial confession¹⁸ at the NBI Main Office, where he implicated the appellants and Zaldy in the crime charged. During trial, he repudiated this confession, and claimed that he had been tortured by the NBI agents, and that he was forced to copy a previously prepared statement.

After a careful examination of the evidence on hand, we hold that Nabilgas’ extrajudicial confession is inadmissible in evidence. The Court has consistently held that an extrajudicial confession, to be admissible, must satisfy the following requirements: "(1) the confession must be voluntary; (2) it must be made with the assistance of a competent and independent counsel, preferably of the confessant's choice; (3) it must be express; and (4) it must be in writing."¹⁹

We point out that Nabilgas was already under custodial investigation by the authorities when he executed the alleged written confession. "A custodial investigation is understood x x x as x x x any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. x x x It begins when there is no longer a general inquiry into an unsolved crime and the investigation has started to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense.²⁰

In People v. Rapeza,²¹ we explained that the lawyer called to be present during custodial investigations should, as far as reasonably possible, be the choice of the individual undergoing questioning. If the lawyer is furnished by the police for the accused, it is important that the lawyer should be competent, independent and prepared to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual's constitutional rights.

After a close reading of the records, we rule that Nabilgas’ confession was not made with the assistance of a competent and independent counsel. The services of Atty. Melita Go, the lawyer who acted in Nabilgas’ behalf, were provided by the very same agency investigating Nabilgas – the NBI itself; she was assigned the task despite Nabilgas’ open declaration to the agency’s investigators that he already had a lawyer in the person of Atty. Donardo Paglinawan. Atty. Paglinawan confirmed this fact when he stated that he was already representing Nabilgas at the time his client made the alleged confession. Nabilgas also testified that Atty. Go did not disclose that she was a lawyer when she was called to assist him; she merely represented herself to be a mere witness to the confession. There was also nothing in the records to show that Atty. Go ascertained whether Nabilgas’ confession was made voluntarily, and whether he fully understood the nature and the consequence of his extrajudicial confession and its impact on his constitutional rights.

To be sure, this is not the kind of assistance required of lawyers in a custodial investigation. "An ‘effective and vigilant counsel’ necessarily and logically requires that the lawyer be present and be able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession."²² In addition, the extrajudicial confession of Nabilgas was not corroborated by a witness who was present at the time the written confession was made. We note in this regard that the prosecution did not present Atty. Go at the witness stand despite hints made during the early stages of the trial that she would be presented.

At any rate, Nabilgas’ extrajudicial confession is inadmissible in evidence against the appellants in view of the res inter alios acta rule. This rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused because it is considered as hearsay against them.

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court. This provision states that the act or declaration of a conspirator relating to the conspiracy, and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that: (a) the conspiracy be first proved by evidence other than the admission itself; (b) the admission relates to the common object; and (c) it has been made while the declarant was engaged in carrying out the conspiracy.²³

This exception, however, does not apply in the present case since there was no other piece of evidence presented, aside from the extrajudicial confession, to prove that Nabilgas conspired with the appellants in committing the crime charged. Conspiracy cannot be presumed and must be shown as distinctly and conclusively as the crime itself. Nabilgas, in fact, was acquitted by the trial court due to insufficiency of evidence to prove his participation in the crime.

Sufficiency of the proven
circumstantial evidence

In view of the inadmissibility of Zaldy’s out-of-court identification and Nabilgas’ extrajudicial confession, the prosecution’s case rests purely on circumstantial evidence. Conviction can be secured "on the basis of circumstantial evidence if the established circumstances constitute an unbroken chain leading to a fair and reasonable conclusion proving that the accused is the author of the crime to the exclusion of all others."²⁴ There can be conviction if the prosecution can establish the appellants’ participation in the crime through credible and sufficient circumstantial evidence that leads to the inescapable conclusion that the accused, and none other, committed the imputed crime.²⁵

"Circumstantial evidence consists of proof of collateral facts and circumstances from which the main fact in issue may be inferred based on reason and common experience. Under Section 4, Rule 133 of the Revised Rules of Court, circumstantial evidence is sufficient for conviction if the following requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances unavoidably leads to a finding of guilt beyond reasonable doubt. These circumstances must be consistent with one another, and the only rational hypothesis that can be drawn therefrom must be the guilt of the accused."²⁶

In our view, no doubt exists, based on the appellants' actions, that their primary objective was to rob WSC, and that the killing of Rex was done on occasion, or by reason, of the robbery: first, Ibañez went to WSC on July 23, 2004, and inquired from Henessy about the schedule and the rates of the firing range, the amount of the membership fee of the company’s gun club, the days when there are many people in the firing range, and whether she was the only female employee of the company; second, when Henessy arrived at WSC at 9:00 a.m. on July 26, 2004, Zaldy informed her that he cannot open the front door because his hands were tied; third, Henessy called the company’s operations manager and informed him that Zaldy had been tied; fourth, the police saw Zaldy handcuffed to the vault when they opened the back gate; fifth, the police saw the lifeless body of Rex lying on the floor with several gunshot wounds when they entered the firing range; sixth, the operations manager discovered that 53 guns and several ammunitions had been missing from the gun store, including a .9 mm Bernardelli with serial number T1102-03E000151 and a .45 Glock 30 with serial number FML 245; seventh, the NBI agents caught Cachuela trying to sell the .9 mm Bernardelli with serial number T1102-03E000151 in an entrapment operation in Cavite; eighth, the NBI agents caught Ibañez trying to sell the .45 Glock 30 with serial number FML 245 and a .45 Llama with serial number 04490Z in a follow-up entrapment operation in Cavite; ninth, Cachuela and Ibañez were unable to explain how they came into possession of the stolen firearms; tenth, Police Inspector Armin Austria, the PNP Forensic Firearm Examiner, found that the 98 pieces of .45 fired cartridge cases found at the crime scene were fired from the .45 Llama with serial number 04490Z recovered from Ibañez;²⁷ and finally, Dr. Nulud conducted an autopsy on the body of Rex, and found that the victim suffered several gunshot wounds on the head, thorax, and abdomen caused by a .45 pistol.

From these established circumstances, the overriding intention of the appellants cannot but be to rob WSC; the killing of Rex was merely incidental to the robbery. "Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of personal property."²⁸ Rex was killed to facilitate the robbery; he was also the person who would have been a witness to the crime. In People v. De Leon,²⁹ we held that "homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime."

In this regard, we cannot overlook the fact that another WSC employee – Zaldy – was not killed, but merely tied to the vault. The Court cannot second-guess on what could have been behind the malefactors’ decision to spare Zaldy’s life, but we note that Zaldy became one of the accused in this case after the Office of the City Prosecutor found probable cause to indict him in the crime, as the robbery could have been the result of an "inside job." Unfortunately, Zaldy was unable to testify during trial since the RTC ordered that he be brought to the National Center for Mental Health for treatment. Accordingly, Nabilgas’ extrajudicial confession (which we ruled to be inadmissible) was the only evidence linking Zaldy to the crime. For lack of evidence, we cannot make any definite conclusion and can only speculate on Zaldy’s involvement in the crime charged.

We find it worthy to stress that the appellants failed to overcome the disputable presumption that "a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act."³⁰ To recall, Ibañez was at WSC two days before the robbery, asking questions to the company’s secretary. Several days after the robbery, the appellants were caught trying to sell firearms that were reported stolen from WSC in separate entrapment operations; they could not satisfactorily explain how and why these guns came to their respective possession. The appellants likewise did not impute ill motive on the part of the arresting officers that would impel the latter to fabricate evidence against them. These factors lead to no other conclusion than that the appellants, to the exclusion of others, had robbed WSC.

To our mind, the fact that the cartridge bullet shells found at the firing range (where the lifeless body of Rex had been discovered) matched with one of the guns recovered from Ibañez during the entrapment operation clinches the case against the appellants insofar as establishing the nexus between the robbery and the victim’s killing. Notably, the gunshot wounds suffered by Rex also came from the same caliber of gun³¹ recovered from Ibañez. In the final analysis, the prosecution sufficiently established the direct and intimate connection between the robbery and the killing, and that the death of Rex had been committed by reason or on the occasion of the robbery. When homicide is committed by reason or on the occasion of a robbery, all those who took part as principals in the robbery would also be held liable as principals of the single and indivisible felony of robbery with homicide, although they did not actually take part in the killing, unless it clearly appears that they endeavored to prevent the same.³²

The penalty and the awarded civil
indemnities

Robbery with homicide is a single indivisible crime punishable with reclusion perpetua to death under paragraph 1, Article 294 of the Revised Penal Code, as amended. We find that the trial and appellate courts correctly sentenced the appellants to suffer the penalty of reclusion perpetua only in the absence of any aggravating circumstance that attended the commission of the crime.1âwphi1

We affirm the award of ₱50,000.00 civil indemnity and ₱50,000.00 moral damages to the heirs of Rex, as these awards conform to prevailing jurisprudence on robbery with homicide when the penalty imposed is only reclusion perpetua.³³ We also affirm the award of ₱45,000.00 as actual damages, as the prosecution successfully proved this amount through a receipt.

The CA ordered the appellants to restitute the amount of ₱1,093,947.50, representing of the value of the stolen firearms and ammunitions. We, however, increase this amount to the total amount of ₱1,481,000.00 as !his is the value of the stolen items as proven by the evidence on record.³⁴

WHEREFORE, in light of all the foregoing, the decision of the Court of Appeals dated August 7, 2009 in CA-G.R. CR.-HC No. 03474 is AFFIRMED with the MODIFICATION that the amount to be restituted by the appellants to Arms Depot Philippines, Inc. be increased from ₱1,093,947.50 to ₱1,481,000.00.

SO ORDERED.

ARTURO D. BRION*
Associate Justice

WE CONCUR:

MARIANO C. DEL CASTILLO
Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

MARVIC MARIO VICTOR F. LEONEN**
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes

* In lieu of Associate Justice Antonio T. Carpio per Special Order No. 1460 dated May 29, 2013.

** Designated as Acting Member in lieu of Associate Justice Antonio T. Carpio per Special Order No. 1461 dated May 29, 2013.

¹ Penned by Associate Justice Celia C. Librea-Leagogo, and concurred in by Associate Justices Juan Q. Enriquez, Jr. and Antonio L. Villamor; rollo, pp. 2-44.

² CA rollo, pp. 14-35.
³ TSN, June 9, 2005, pp. 19-23.
⁴ Id. at 7-12.
⁵ Records, p. 546.
⁶ TSN, July 7, 2005, pp. 8-15.

⁷ The other firearms recovered from Cachuela were a .22 Cooley Model 600 with serial number 9196; a .45 Federal Caliber Pistol Receiver with serial number 502173; and a .45 Llama Pistol with serial number 07-04-15949-96.

⁸ TSN, July 7, 2005, pp. 15-18.
⁹ Id. at 24-27.
¹⁰ Id. at 29-30.
¹¹ Id. at 31.
¹² Records, p. 2.
¹³ Id. at 166-169.
¹⁴ Id. at 620-621.
¹⁵ The Branch Manager of Arms Depot Philippines, Inc.

¹⁶ People v. Algarme, G.R. No. 175978, February 12, 2009, 578 SCRA 601, 621; citations omitted.

¹⁷ Id. at 617-618, citing People v. Teehankee, Jr., G.R. Nos. 111206-08, October 6, 1995, 249 SCRA 54.

¹⁸ Records, p. 21.
¹⁹ See People v. Bacor, 366 Phil. 197, 212 (1999).

²⁰ See People v. Morial, 415 Phil. 310, 329 (2001); citation omitted, italics supplied.

²¹ G.R. No. 169431, April 4, 2007, 520 SCRA 596, 623-624, citing People v. Deniega, 321 Phil. 1028, 1041-1042 (1995); italics supplied.

²² See People v. Tomaquin, 478 Phil. 885, 901 (2004).

²³ See People v. Bokingo, G.R. No. 187536, August 10, 2011, 655 SCRA 313, 332-333.

²⁴ People v. Umayam, 431 Phil. 23, 32 (2002).

²⁵ See People v. Biglete, G.R. No. 182920, June 18, 2012, 673 SCRA 546, 554.

²⁶ See People v. Romero, G.R. No. 181041, February 23, 2011, 644 SCRA 210, 214; citation omitted.

²⁷ Per Firearms Identification Report No. FAIS-080-A-2004, no conclusion could be rendered as to whether the seven other .45 fired bullets submitted for examination had been fired from the Llama .45 pistol with serial number 04490Z.

²⁸ See People v. De Leon, G.R. No. 179943, June 26, 2009, 591 SCRA 178, 193, citing People v. De Jesus, 473 Phil. 405, 407 (2004).

²⁹ Id. at 194.
³⁰ Rules of Court, Rule 131, Section 3(j).
³¹ The records do not indicate the gun’s serial number.

³² See People v. Ebet, G.R. No. 181635, November 15, 2010, 634 SCRA 689, 705-706.

³³ See People v. Uy. G.R. No. 174660, May 30, 2011, 649 SCRA 236, 260.

³⁴ Records, pp. 71-73.

assignment for tomorrow

each student is required to report on any case of his liking concerning such principles as follows:

1. parol evidence rule
2. best evidence rule
3. judicial notice

you will be graded based on your report tomorrow