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PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. MARLON DELIM, LEONDELIM, MANUEL DELIM alias BONG (At Large), ROBERT DELIM (AtLarge), and RONALD DELIM alias BONG, accused-appellants.

D E C I S I O N

CALLEJO, SR.,J.:

Before the Court on automatic review is the Decision,[1] dated January 14, 2000,of the Regional Trial Court, Branch 46, Urdaneta City, finding accused-appellantsMarlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of thecrime of murder and sentencing them to suffer the supreme penalty of death. Thecourt also ordered accused-appellants to pay, jointly and severally, the heirs of thevictim the sums of P75,000.00 as moral damages and P25,000.00 as exemplarydamages.

Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bongand Robert, all surnamed Delim, were indicted for murder under an Informationdated May 4, 1999 which reads:

That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan,and within the jurisdiction of this Honorable Court, the above-named accused,armed with short firearms barged-in and entered the house of Modesto Delim andonce inside with intent to kill, treachery, evident premedidation (sic), conspiringwith one another, did then and there, wilfully, unlawfully and feloniously grab, hold,hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accusedLeon Delim and Manuel Delim stayed in the house guarded and prevented the wifeand son of Modesto Delim from helping the latter, thereafter with abuse of superiorstrength stabbed and killed said Modesto Delim, to the damage and prejudice of hisheirs.CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act

No. 7659.[2]

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamedDelim, were apprehended. Accused Robert and Manuel remain at-large.

At their arraignment, Marlon, Ronald and Leon, with the assistance of theircounsel, pleaded not guilty to the charge.

At the trial, the prosecution established the following relevant facts[3]

Marlon, Manuel and Robert Delim are brothers. They are the uncles of LeonDelim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and acarpenter. He took the surname Delim after he was adopted by the father ofMarlon, Manuel and Robert. However, Modestos wife, Rita, an illiterate, and their16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto,Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as theirrelatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert andRonald used to visit Modesto and his family. Modesto and his family and the Delimkins resided in Barangay Bila, Sison, Pangasinan.

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randywere preparing to have their supper in their home. Joining them were Modesto andRitas two young grandchildren, aged 5 and 7 years old. They were about to eattheir dinner when Marlon, Robert and Ronald suddenly barged into the house andclosed the door. Each of the three intruders was armed with a shorthandgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneouslygrabbed and hog-tied the victim. A piece of cloth was placed in the mouth ofModesto.[4] Marlon, Robert and Ronald herded Modesto out of the house on their

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way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy werewarned by the intruders not to leave the house. Leon and Manuel, who were alsoarmed with short handguns, stayed put by the door to the house of Modesto andordered Rita and Randy to stay where they were. Leon and Manuel left the house ofModesto only at around 7:00 a.m. the following day, January 24, 1999.

As soon as Leon and Manuel had left, Randy rushed to the house of his uncle,Darwin Nio, at Sitio Labayog, informed the latter of the incident the night before

and sought his help for the retrieval of Modesto. Randy was advised to report thematter to the police authorities. However, Randy opted to first look for hisfather. He and his other relatives scoured the vicinity to locate Modesto to no avail.

They proceeded to Paldit, Sison, Pangasinan, around 200 meters away fromModestos house, to locate Modesto but failed to find him there. On January 25,1999, Randy and his relatives returned to the housing project in Paldit, Sison,Pangasinan to locate Modesto but again failed to find him there. On January 26,1999, Randy reported the incident to the police authorities.

At around 3:00 in the afternoon of January 27, 1999, Randy, in the company ofhis relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned tothe housing project in Paldit, Sison, Pangasinan and this time they found Modesto

under thick bushes in a grassy area. He was already dead. The cadaver wasbloated and in the state of decomposition. It exuded a bad odor. Tiny white wormsswarmed over and feasted on the cadaver. Randy and his relatives immediatelyrushed to the police station to report the incident and to seek assistance.

When informed of the discovery of Modestos cadaver, the local chief of policeand SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw thecadaver under the thick bushes. Pictures were taken of the cadaver.[5] Rita andRandy divulged to the police investigators the names and addresses of Marlon,Ronald, Robert, Leon and Manuel, whom they claimed were responsible for thedeath of Modesto. Rita and Randy were at a loss why the five malefactors seizedModesto and killed him. Rita and Randy gave their respective sworn statements to

the police investigators.[6]

Police authorities proceeded to arrest Marlon, Ronald,Robert, Manuel and Leon but failed to find them in their respective houses. Thepolice officers scoured the mountainous parts of Barangays Immalog and Labayogto no avail.

The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared herautopsy report, which reads:

SIGNIFICANT EXTERNAL FINDINGS:- Body - both upper extremities are flexed

- both lower extremities are flexed- (+) body decomposition- (+) worms coming out from injuries

- 10 x 10 ml. GSW, pre-auricular area, right- 20 x 20 ml. GSW, mandibular areas, right- 10 x 10 ml. GSW, maxillary area, right- 10 x 10 ml. GSW, below middle nose, directed upward (POE)- 30 x 40 ml. GSW, mid parieto occipital area (POEx)- 2 x 1 cms. lacerated wound, right cheek- 1 x 1 cm. stabbed wound, axillary area, left- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm

- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd,

leftforearm

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- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm- 10 x 6 cms. Inflamed scrotum- penis inflamed

SIGNIFICANT INTERNAL FINDINGS:- no significant internal findingsCAUSE OF DEATH:GUN SHOT WOUND, HEAD.[7]

The stab wounds sustained by Modesto on his left arm and forearm weredefensive wounds. The police investigators were able to confirm that Marlon,Ronald, Robert, Leon and Manuel had no licenses for their firearms.[8]

Records of the PNP Criminal Investigation and Detection Group in Baguio Cityshow that Marlon had pending cases for robbery in the Regional Trial Court ofBaguio City in Criminal Case No. 16193-R, and for robbery in band in Criminal CasesNos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.[9]

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.[10]

Ronald claimed that on January 23, 1999, he, his wife and children, his mother,his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan abouttwo kilometers away from Modestos house.

He denied having been in the house of Modesto on January 23, 1999 and ofabducting and killing him. He theorized that Rita and Randy falsely implicated himupon the coaching of Melchor Javier who allegedly had a quarrel with himconcerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of hissister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he hadbeen living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he

had been working for Sally Asuncion at a hollow-block factory in that city where hewas a stay-in worker.

Sally Asuncion corroborated Leons alibi. She testified that Leon Delim neverwent home to his hometown in Pangasinan during his employment. His sister,Hermelita Estabillo, likewise averred that on January 23, 1999, his brother was ather house to give her his laundry. She claimed that the distance between LaoagCity and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leonpresented a Barangay Certificate to prove that he was a resident of Laoag City from

January 1998 up to February 1999.[11]

Marlon asserted that he was on vacation in Dumaguete City from December 26,1998 up to January 29, 1999. During his stay there, he lived with his sister,

Francisca Delim. Upon his return to Manila on January 29, 1999, he immediatelyproceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison,Pangasinan after his sojourn in Dumaguete City.

The trial court rendered judgment finding accused-appellants guilty ofmurder. The dispositive portion of the trial courts decision reads:

WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is herebyrendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commissionof Aggravated Murder, an offense defined and penalized under Article 248 of theRevised Penal Code, as amended by R.A. 7659 and the Court sentences MarlonDelim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be

implemented in the manner as provided for by law; the Court likewise orders theaccused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of

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P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplarydamages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of thiscase to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) daysfrom date of promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail,Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald andLeon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen daysfrom receipt of this decision.SO ORDERED.[12]

The trial court appreciated treachery as a qualifying circumstance and of takingadvantage of superior strength, nighttime and use of unlicensed firearms asseparate of aggravating circumstances in the commission of the crime. Marlon,Ronald and Leon, in their appeal brief, assail the decision alleging that:

I

THE COURTA QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTYBEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURTA QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THECASE AT BAR.

III

THE COURTA QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TOACCUSED-APPELLANTS DEFENSE OF ALIBI.[13]

Before resolving the merits of the case at bar, we first resolve the matter ofwhether the crime charged in the Information is murder or kidnapping. During thedeliberation, some distinguished members of the Court opined that under the

Information, Marlon, Ronald and Leon are charged with kidnapping under Article267 of the Revised Penal Code and not with murder in its aggravated form in light ofthe allegation therein that the accused willfully, unlawfully and feloniouslygrab(bed), h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out andabduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed in thehouse (and) guarded and prevented the wife and son of Modesto Delim fromhelping the latter. They submit that the foregoing allegation constitutes the act ofdeprivation of liberty of the victim, the gravamen in the crime of kidnapping. Theycontend that the fact that the Information went further to charge accused with thekilling of the victim should be of no moment, the real nature of the criminal chargebeing determined not from the caption or the preamble of the Information nor fromthe specification of the law alleged to have been violated these being conclusions

of law but by the actual recital of facts in the complaint or information. Theyfurther submit that since the prosecution failed to prove motive on the part ofMarlon, Ronald and Leon to kill Modesto, they are not criminally liable for the deathof the victim but only for kidnapping the victim.

It bears stressing that in determining what crime is charged in an information,the material inculpatory facts recited therein describing the crime charged inrelation to the penal law violated are controlling. Where the specific intent ofthe malefactor is determinative of the crime charged such specific intentmust be alleged in the information and proved by the prosecution. Adecade ago, this Court held in People v. Isabelo Puno, et al.,[14] that for kidnappingto exist, there must be indubitable proof that the actual specific intent of the

malefactor is to deprive the offended party of his liberty and not where such

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restraint of his freedom of action is merely an incident in the commission of anotheroffense primarily intended by the malefactor. This Court further held:

x x x. Hence, as early as United States vs. Ancheta, and consistently reiteratedthereafter, it has been held that the detention and/or forcible taking away of thevictims by the accused, even for an appreciable period of time but for the primaryand ultimate purpose of killing them, holds the offenders liable for taking their livesor such other offenses they committed in relation thereto, but the incidental

deprivation of the victims liberty does not constitute kidnapping or serious illegaldetention.[15]

If the primary and ultimate purpose of the accused is to kill the victim, theincidental deprivation of the victims liberty does not constitute the felony ofkidnapping but is merely a preparatory act to the killing, and hence, is merged into,or absorbed by, the killing of the victim. [16] The crime committed would either behomicide or murder.

What is primordial then is the specific intent of the malefactors asdisclosed in the information or criminal complaint that is determinative ofwhat crime the accused is charged with--that of murder or kidnapping.

Philippine and American penal laws have a common thread on the concept ofspecific intent as an essential element of specific intent crimes. Specific intent isused to describe a state of mind which exists where circumstances indicate that anoffender actively desired certain criminal consequences or objectively desired aspecific result to follow his act or failure to act.[17] Specific intent involves a state ofthe mind. It is the particular purpose or specific intention in doing the prohibitedact. Specific intent must be alleged in the Information and proved by the state in aprosecution for a crime requiring specific intent.[18] Kidnapping and murder arespecific intent crimes.

Specific intent may be proved by direct evidence or by circumstantialevidence. It may be inferred from the circumstances of the actions of the accused

as established by the evidence on record.[19]

Specific intent is not synonymous with motive. Motive generally is referred toas the reason which prompts the accused to engage in a particular criminalactivity. Motive is not an essential element of a crime and hence the prosecutionneed not prove the same. As a general rule, proof of motive for the commission ofthe offense charged does not show guilt and absence of proof of such motive doesnot establish the innocence of accused for the crime charged such as murder.[20] The history of crimes shows that murders are generally committed from motivescomparatively trivial.[21] Crime is rarely rational. In murder, the specific intent is tokill the victim. In kidnapping, the specific intent is to deprive the victim of his/herliberty. If there is no motive for the crime, the accused cannot be convicted for

kidnapping.[22] In kidnapping for ransom, the motive is ransom. Where accused killsthe victim to avenge the death of a loved one, the motive is revenge.

In this case, it is evident on the face of the Information that the specific intent ofthe malefactors in barging into the house of Modesto was to kill him and that hewas seized precisely to kill him with the attendant modifying circumstances. The actof the malefactors of abducting Modesto was merely incidental to their primarypurpose of killing him. Moreover, there is no specific allegation in theinformation that the primary intent of the malefactors was to depriveModesto of his freedom or liberty and that killing him was merelyincidental to kidnapping.[23] Irrefragably then, the crime charged in theInformation is Murder under Article 248 of the Revised Penal Code and not

Kidnapping under Article 268 thereof.

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The threshold issue that now comes to fore is whether or not the prosecutionmustered the requisite quantum of evidence to prove that Marlon, Ronald and Leonare guilty of murder.

In criminal prosecutions, the prosecution is burdened to prove the guilt of theaccused beyond cavil of doubt. The prosecution must rely on the strength of itsown evidence and not on the weakness of the evidence of the accused. The proofagainst the accused must survive the test of reason; the strongest suspicion must

not be permitted to sway judgment.[24]

In the case at bar, the prosecution was burdened to prove the corpusdelicti which consists of two things: first, the criminal act and second, defendantsagency in the commission of the act.[25] Wharton says that corpus delicti includestwo things: first, the objective; second, the subjective element of crimes.[26] Inhomicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a)the death of the party alleged to be dead; (b) that the death was produced by thecriminal act of some other than the deceased and was not the result of accident,natural cause or suicide; and (c) that defendant committed the criminal act or wasin some way criminally responsible for the act which produced the death. [27] Toprove the felony of homicide or murder, there must be incontrovertible evidence,

direct or circumstantial, that the victim was deliberately killed (with malice); inother words, that there was intent to kill. Such evidence may consist inter alia inthe use of weapons by the malefactors, the nature, location and number of woundssustained by the victim and the words uttered by the malefactors before, at thetime or immediately after the killing of the victim. If the victim dies because of adeliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubteither by direct evidence or by circumstantial or presumptive evidence.[28]

In the case at bar, the prosecution adduced the requisite quantum of proofofcorpus delicti. Modesto sustained five (5) gunshot wounds. He also sustainedseven (7) stab wounds,[29] defensive in nature. The use by the malefactors of deadlyweapons, more specifically handguns and knives, in the killing of the victim as wellas the nature, number and location of the wounds sustained by said victim areevidence of the intent by the malefactors to kill the victim with all the consequencesflowing therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v.State:[31]

This rule, that every person is presumed to contemplate the ordinary and naturalconsequences of his own acts, is applied even in capital cases. Because mengenerally act deliberately and by the determination of their own will, and not fromthe impulse of blind passion, the law presumes that every man always thus acts,until the contrary appears. Therefore, when one man is found to have killedanother, if the circumstances of the homicide do not of themselves show that it wasnot intended, but was accidental, it is presumed that the death of the deceased wasdesigned by the slayer; and the burden of proof is on him to show that it wasotherwise.

The prosecution did not present direct evidence to prove the authors of thekilling of Modesto. It relied on circumstantial evidence to discharge its burden ofproving the guilt of accused-appellants of murder. Circumstantial evidence consistsof proof of collateral facts and circumstances from which the existence of the mainfact may be inferred according to reason and common experience.[32] What wasonce a rule of account respectability is now entombed in Section 4, Rule 133 of theRevised Rules of Evidence which states that circumstantial evidence, sometimesreferred to as indirect or presumptive evidence, is sufficient as anchor for a

judgment of conviction if the following requisites concur:

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x x x if (a) there is more than one circumstance; (b) the facts from which theinferences are derived have been established; and (c) the combination of all thecircumstances is such as to warrant a finding of guilt beyond reasonable doubt.[33]

The prosecution is burdened to prove the essential events which constitute acompact mass of circumstantial evidence, and the proof of each being confirmed bythe proof of the other, and all without exception leading by mutual support to butone conclusion: the guilt of accused for the offense charged.[34] For circumstantial

evidence to be sufficient to support a conviction, all the circumstances must beconsistent with each other, consistent with the hypothesis that accused is guilty andat the same time inconsistent with the hypothesis that he is innocent, and withevery other rational hypothesis except that of guilt. [35] If the prosecution adducedthe requisite circumstantial evidence to prove the guilt of accused beyondreasonable doubt, the burden of evidence shifts to the accused to controvert theevidence of the prosecution.

In the present case, the prosecution mustered the requisite quantum ofcircumstantial evidence to prove that accused-appellants, in confabulation withtheir co-accused, conspired to kill and did kill Modesto:

1. Randy Bantas testified that Marlon and Ronald barged into the house ofModesto, each armed with a handgun. Marlon poked his gun on Modesto whileRonald hog-tied Modesto. They then seized Modesto and herded him out of hishouse:

FISCAL TOMBOC: What were you doing then at that time in your house?

A We were eating, sir.

Q You said we, who were your companions eating then at that time?

A My father, my mother and the two children and myself, sir.

Q While taking your supper that time, do you recall if there was anything

unusual that happened at that time?A When we were about to start to eat three armed men entered our

house.

Q Do you know these three armed men who entered your house?

A Yes, sir.

Q Who are they, name them one by one?

A Marlon Delim, Robert Delim and Ronald Delim.

Q Are these three persons inside the courtroom now?

A Two of them, sir.Q Who are these two who are inside the courtroom?

A Marlon and Ronald, sir.

Q Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside thecourtroom, who, when his name was asked answered MarlonDelim. Likewise, witness is pointing unto a person seated on the benchinside the courtroom, who, when his name was asked he answeredRonald Delim).

Q You said that these two armed persons entered your house, what kindof arm were they carrying at that time?

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A Short handgun, sir.

Q When these three armed persons whom you have mentioned, armedwith short firearms, what did they do then when they entered yourhouse?

A They took my father, sir.

Q Who took your father?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

Q When these three persons took your father, what did you do then?

A None, sir.

COURT: How did they get your father?

A They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun?

A Marlon Delim, sir.

Q Again, Mr. Witness, will you point to the person who poked a gun?A (Witness is pointing to Malon (sic) Delim, one of the accused).

Q After bringing your father out from your house, what transpired next?

A Manuel Delim and Leon Delim said, Stay in your house, and guardedus.

COURT: You said your father was taken out, who?

A Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father?

A I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside?

A Inside our house, sir.

Q You said that Marlon poked a gun at your father, is that correct?

A Yes, sir.

Q What did Ronald and Robert do while Marlon was poking his gun to yourfather?

A Ronald and Robert were the ones who pulled my father out, sir.[36]

Randys account of the incident was corroborated by his mother, Rita, whotestified:

PROSECUTION TOMBOC: You said during the last hearing that on January23, 1999 at around 6:30 in the evening while preparing for your supperthree (3) armed men entered inside your house, who were these three(3) men who entered your house?

A I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking hertime to answer, Your Honor.

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PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim andBongbong entered your house, are these three (3) persons who enteredyour house in Court now?

A They are here except the other one, sir.

Q Will you please step down and point to the persons who entered yourhouse?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court andBongbong is Ronald Delim.

Q After these three (3) armed men entered your house, what happenedthen?

A My husband was brought out, sir.

Q What is the name of your husband?

A Modesto Delim, sir.[37]

2. Randy said that when Marlon and Ronald barged into their house, Leon,armed with a handgun, acted as a lookout when he stood guard by the door of thehouse of Modesto and remained thereat until 7:00 a.m. of the next day:

FISCAL TOMBOC: When your father was pulled out from your house bythese three persons, what did you and your mother do while these threepersons were taking out of your house?

A We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house?

A Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out bythese three persons Marlon, Robert and Ronal (sic), where were Leonand Manuel then?

A They were at the door, sir.

COURT: Why do you know that they were guarding you?

A Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these twopersons were guarding you, these Leon and Manuel?

A They were armed, sir.

Q What do you mean by armed?

A They have gun, sir.

Q What kind of firearm?

A Short firearm, sir.

Q By the way, where are these Leon and Manuel now, if you know?

A Leon is here, sir.

Q About Manuel?

A None, sir.

Q Will you please stand up and point at Leon, Mr. Witness?

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A (Witness pointed to a person seated on the bench inside the courtroom,who when his name was asked, answered, Leon Delim).[38]

3. Rita and Randy were ordered by Leon not to leave the house as Ronald andMarlon left the house with Modesto in tow. Rita and Randy were detained in theirhouse up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help fromtheir relatives and police authorities.

4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., thecadaver of Modesto was found under the thick bushes in a grassy area in thehousing project located about 200 meters away from the house of Modesto. Thecadaver exuded bad odor and was already in the state of decomposition:

Q So what did you do then on January 27, where did you look for yourfather?

A The same place and at 3:00 oclock P.M., we were able to find myfather.

COURT: Where?

A At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you wereable to look for your father on January 27, 1999 at 3:00 oclock P.M.?

A Yes, sir.

Q Who?

A My Aunt, sir.

Q What is the name of your Aunt?

A Nida Pucal, sir.

Q Who else?

A Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition?

A He was dead, sir.

COURT: Go ahead.

FISCAL TOMBOC: You said that he was already dead, what was hisappearance then when you saw him dead?

A He has bad odor, sir, in the state of decompsition (sic).[39]

The testimony of Randy was corroborated by Dr. de Guzman who testified thatthe cadaver of Modesto was in a state of decomposition, with tiny white wormscrawling from his wounds, and that his penis and scrotum were inflamed. Thevictim sustained five gunshot wounds and defensive wounds on the left arm andforearm:

PROS. TOMBOC:

Q Will you please tell the Honorable Court your findings, Doctora?

WITNESS:

A First finding: Upon seeing the cadaver, this is the position of the body,both upper extremities are flexed and both lower extremities are flexed(Nakakukot).

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72 hours Whole body grossly swollen and disfigured. Hair andnails loose.

Tissues soft and discolored.[42]

The lapse of two or three to four days from the seizure of the victim in theevening of January 23, 1999 to the discovery of his cadaver which was already inthe state of putrefaction in the afternoon of January 27, 1999, about 200 metersaway from his house, is consistent with and confirmatory of the contention of the

prosecution that the victim was killed precisely by the very malefactors who seizedhim on January 23, 1999.

5. When police authorities went to the residences of all the malefactors, thelatter had flown the coop and were nowhere to be found:

COURT: In connection with this case, you investigated the wife and son ofModesto Delim?

A Yes, sir.

Q In the course of the investigation did you come to know who were thesuspects?

A Yes, sir, she elaborated that the suspects were their neighbors, MarlonDelim and his brothers, sir.

Q What are the names of the brothers?

A Manuel Delim, Leon Delim I cannot remember the others, sir.

Q By reason of that information were you able to apprehend any of themfor investigation?

A No, sir.

Q Why?

A Because when we were dispatched by the Chief of Police no Delimbrothers could be found, they all left the place, sir.

Q In what place did you look for the brothers Delim?

A Within the vicinity, sir.

Q In what place?

A Brgy. Bila and the place where the crime was committed in Brgy. Bilaand the place where the cadaver was found in Paldit, sir.

Q Where did you look for the Delim brothers?

A Nearby barangays, Immalog, sir.Q Wherelse (sic)?

A Labayog, Sison, sir.

Q Wherelse?

A In mountainous part of Immalog, part of Tuba Benguet, sir.

Q What was the result?

A Negative result, sir.[43]

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to

go to the house of Modesto and Rita:

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COURT: These Leon and Manuel Delim are they known to you prior to thatday, January 23, 1999?

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?

A They are my neighbors, sir.

Q How about Marlon, Robert and Bongbong do you know them beforeJanuary 23, 1999?

A I know them, sir.

Q Why do you know them?

A They used to go to our house, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delimsand your husbands name is Modesto Delim are they related with eachother?

A Yes, sir.[44]

The sudden disappearance of Marlon, Ronald and Leon from their houses inBarangay Bila, Sison is strong circumstantial evidence of their guilt for the death ofModesto. Although flight after the commission of an offense does not create a legalpresumption of guilt, nevertheless, the same is admissible in evidence against themand if not satisfactorily explained in a manner consistent with their innocence, willtend to show that they, in fact, killed Modesto.[45]

It is true that the prosecution failed to prove motive on the part of themalefactors to abduct and kill Modesto. Indeed, Randy and Rita testified that theywere not aware of any misunderstanding or grudge between Modesto on the onehand and Marlon, Ronald and Leon and their co-accused on the other before theincident, or any motivation on the part of the three malefactors to cause harm toModesto. Nonetheless, it cannot thereby be concluded that a person or personsother than Marlon, Ronald and Leon were criminally responsible for the death of thevictim. It is a matter of judicial notice that nowadays persons have killed orcommitted serious crimes for no reason at all.[46] In this case, the inscrutable factsare that Marlon and Ronald, each of whom was armed with a handgun, forcibly tookModesto from his house at the gunpoint, hogtied, put a piece of cloth in his mouthand after Ronald and Marlon had left the house with Modesto in tow, Rita heardthree gunshots or so and the cadaver of Modesto was found concealed under thebushes and already in a state of putrefaction in the afternoon of January 27,1999. Modesto sustained several gunshot wounds and died because of a gunshotwound on the head. The criminal acts and the connection of Marlon, Ronald and

Leon with said acts having been proved by the prosecution beyond reasonabledoubt, the act itself furnishes the evidence, that to its perpetration there was somecauses or influences moving the mind.[47] The remarkable tapestry intricately wovenby the prosecution should not be trashed simply because the malefactors had nomotive to kill Modesto.

Ranged against the evidence of the prosecution, the burden of evidence shiftedon Marlon, Ronald and Leon to rebut the same and explain what happened to thevictim after taking him from his house in the evening of January 23, 1999. Theymay have freed the victim shortly after taking him, or the victim may have beenable to escape and that thereafter a person or some other persons may have killedhim. However, Marlon, Ronald and Leon failed to give any explanation. Instead,

they merely denied having seized and killed the victim and interposed alibi as theirdefense.

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Leon is equally guilty for the death of Modesto because the evidence on recordshows that he conspired with accused-appellants Marlon and Ronald and accusedRobert and Manuel in killing the victim.

There is conspiracy when two or more persons agree to commit a felony anddecide to commit it.[48] Conspiracy must be proven with the same quantum ofevidence as the felony itself, more specifically by proof beyond reasonabledoubt. Conspiracy is not presumed. It may be proved by direct evidence or by

circumstantial evidence. Conspiracy is deducible from the acts of the malefactorsbefore, during and after the commission of the crime which are indicative of a jointpurpose, concerted action and concurrence of sentiment.[49] To establish conspiracy,it is not essential that there be proof as to the existence of a previous agreement tocommit a crime.[50] It is sufficient if, at the time of the commission of the crime, theaccused had the same purpose and were united in its execution. If conspiracy isestablished, the act of one is deemed the act of all. It matters not who among theaccused actually shot and killed the victim.[51] This is based on the theory of a jointor mutual agency ad hoc for the prosecution of the common plan:

x x x The acts and declarations of an agent, within the scope of his authority, areconsidered and treated as the acts and declarations of his principal. What is so

done by an agent, is done by the principal through him, as his mere instrument.Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J.28, 33 (1839). If the conspiracy be proved to have existed, or rather if evidence begiven to the jury of its existence, the acts of one in furtherance of the commondesign are the acts of all; and whatever one does in furtherance of the commondesign, he does as the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.)1, 710.[52]

In the eyes of the law, conspirators are one man, they breathe one breath, theyspeak one voice, they wield one arm and the law says that the acts, words anddeclaration of each, while in the pursuit of the common design, are the acts, wordsand declarations of all.[53]

In the case at bar, Marlon, Ronald and Leon arrived together in the house ofModesto, each armed with a handgun. Marlon and Ronald barged into said housewhile Leon stood guard by the door thereof. After Marlon and Ronald had left withModesto in tow, Leon stood by the door and warned Randy and Rita not to leave thehouse. Leon stood guard by the door of the house until 7:00 a.m. of January 24,1999 when he left the house. The overt acts of all the malefactors were sosynchronized and executed with precision evincing a preconceived plan or design ofall the malefactors to achieve a common purpose, namely the killing ofModesto. Irrefragably, the tasks assigned to Leon in the commission of the crimewere (a) to act as a lookout; (b) to ensure that Rita and Randy remain in theirhouse to prevent them from seeking assistance from police authorities and their

relatives before their mission to kill Modesto shall have been a fait accompli as wellas the escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group, isguilty of the killing of Modesto.[55] Leon may not have been at the situscriminis when Modesto was killed by Marlon and Ronald nevertheless he is aprincipal by direct participation.[56] If part of a crime has been committed in oneplace and part in another, each person concerned in the commission of either partis liable as principal. No matter how wide may be the separation of theconspirators, if they are all engaged in a common plan for the execution of a felonyand all take their part in furtherance of the common design, all are liable asprincipals. Actual presence is not necessary if there is a direct connection betweenthe actor and the crime.[57]

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Ritaalleging that the same were marred by inconsistencies:

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1. Randy initially stated that he did not know where the assailants broughthis father. Later however, Randy claimed that the malefactors proceededto the direction of Paldit, Sison, Pangasinan;

2. Rita on the other hand identified Leon, Marlon and Ronald as those whobarged into their house. She later changed her testimony and declaredthat it was Robert, together with Marlon and Ronald who barged into thehouse;

3. Rita likewise testified that two men stood outside the house guardingthem. Later, she testified that after the three men brought out thevictim, the two other accused entered the house and guarded themthere;

4. Rita claimed that she went out to look for her husband the next day, oron January 25, 1999, and she was accompanied by her sonRandy. However, Randy testified that he was alone when he looked forhis father from January 24 to 26, 1999.[58]

We do not agree with Marlon, Ronald and Leon. Case law has it that thefindings of facts of the trial court, its calibration of the collective testimonies of

witnesses and its assessment of the probative weight thereof and its conclusionsculled from its findings are accorded by the appellate court great respect, if notconclusive effect, because of its unique advantage of observing at close range thedemeanor, deportment and conduct of the witnesses as they give their testimoniesbefore the court. In the present case, the trial court gave credence and fullprobative weight to the testimonies of the witnesses of the prosecution. Moreover,there is no evidence on record that Randy and Rita were moved by any improper orill motive in testifying against the malefactors and the other accused; hence, theirtestimonies must be given full credit and probative weight.[59] The inconsistencies inthe testimonies of Rita and Randy do not render them incredible or theirtestimonies barren of probative weight. It must be borne in mind that humanmemory is not as unerring as a photograph and a persons sense of observation isimpaired by many factors including the shocking effect of a crime. A truth-tellingwitness is not always expected to give an error-free testimony considering the lapseof time and the treachery of human memory. What is primordial is that the mass oftestimony jibes on material points, the slight clashing of statements dilute neitherthe witnesses credibility nor the veracity of his testimony. [60] Variations on thetestimony of witnesses on the same side with respect to minor, collateral orincidental matters do not impair the weight of their united testimony to theprominent facts.[61] Inconsistencies on minor and trivial matters only serve tostrengthen rather than weaken the credibility of witnesses for they erase thesuspicion of rehearsed testimony.[62]

Moreover, the testimony of a witness should be construed in its entirety and notin truncated terms and the true meaning of answers to isolated questionspropounded to a witness is to be ascertained by due consideration of all thequestions propounded to the witness and his answers thereto.[63]

Randys testimony that he did know where the malefactors brought his father isnot inconsistent with his testimony that Ronald and Marlon brought his fathertowards the direction of Paldit, Sison, Pangasinan. Randy may not have known thedestination of accused-appellants but he saw the direction to which theywent. While it may be true that when asked to identify the three who barged intotheir house, Rita pointed to Leon as one of them, however, Rita had been consistentthroughout her testimony that those who barged into their house were Ronald andMarlon. Leons counsel never cross-examined Rita and impeached her testimony onher identification of Leon as one of those who barged into their house to give her an

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opportunity to explain her perceived inconsistency conformably with Rule 132,Section 13 of the Revised Rules of Evidence which reads:

Before a witness can be impeached by evidence that he has made at other timesstatements inconsistent with his present testimony, the statements must be relatedto him, with the circumstances of the times and places and the persons present,and he must be asked whether he made such statements, and if so, allowed toexplain them. If the statements be in writing they must be shown to the witness

before any question is put to him concerning them.[64]

Hence, the presentation of the inconsistent statements made by Rita isinsufficient for the desired impeachment of her.[65] As to whether Rita and Randywere together in looking for Modesto or Leon merely stood guard by the door of thehouse or entered the house are inconsequential. The fact is that Leon stood guardthroughout the night to prevent Rita and Randy from seeking assistance for theseizure and killing of Modesto.

This Court is convinced, as the trial court was, that the respective testimonies ofRandy and Rita bear the earmarks of truth and sincerity. Despite intense andgrueling cross-examination, they responded with consistency upon material detailsthat could only come from a firsthand knowledge of the shocking events whichunfolded before their eyes. The Court thus finds no cogent reason to disregard thefindings of the trial court regarding their credibility.

Marlon, Ronald and Leon contend that the trial court committed a reversibleerror in not giving credence and probative weight to their evidence to prove theirdefense of alibi. They aver that their collective evidence to prove their defense isstrong.

We do not agree. Case law has it that the defense of alibi is one of the weakestof defenses in criminal prosecution because the same is easy to concoct betweenrelatives, friends and even those not related to the offender. [66] It is hard for theprosecution to disprove. For alibi to merit approbation by the trial court and this

Court, Marlon, Ronald and Leon are burdened to prove with clear and convincingevidence that they were in a place other than the situs criminis at the time of thecommission of the crime; that it was physically impossible for them to havecommitted the said crime.[67] They failed to discharge their burden. Moreover, Ritaand Randy positively and spontaneously identified Marlon, Ronald and Leon as theculprits. The house of Ronald, where he claimed he was when the crime wascommitted, was only two kilometers away from the house of Modesto and can benegotiated by a tricycle. Leon failed to adduce any documentary evidence to provehis employment by Sally Asuncion. The barefaced fact that he was a resident ofLaoag City does not constitute proof that he was in Laoag City on the day of thecommission of the crime. With respect to Marlon, he failed to adduce evidenceaside from his self-serving testimony that he resided in, left Dumaguete City andarrived in Manila on January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifyingcircumstance of treachery in the killing of Modesto. The trial court likewiseappreciated nighttime and abuse of superior strength and the use of unlicensedfirearms as separate aggravating circumstances. The Office of the Solicitor Generalcontends that indeed treachery was attendant in the killing of Modesto. Hence,Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article248 of the Revised Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only ofhomicide defined in and penalized by Article 248 of the Revised Penal Code.

Qualifying circumstances such as treachery and abuse of superior strength mustbe alleged and proved clearly and conclusively as the crime itself. Mere

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conjectures, suppositions or presumptions are utterly insufficient and cannotproduce the effect of qualifying the crime.[68] As this Court held: No matter howtruthful these suppositions or presumptions may seem, they must not and cannotproduce the effect of aggravating the condition of defendant.[69] Article 14,paragraph 16 of the Revised Penal Code provides that there is treachery when theoffender commits any of the crimes against the person, employing means, methodsor forms in the execution thereof which tend directly and especially to insure itsexecution, without risk to himself arising from the defense which the offended partymight make. For treachery to be appreciated as a qualifying circumstance, theprosecution is burdened to prove the following elements: (a) the employment ofmeans of execution which gives the person attacked no opportunity to defendhimself or retaliate; (b) the means of execution is deliberately or consciouslyadopted.[70] Although the victim may have been defenseless at the time he wasseized but there is no evidence as to the particulars of how he was assaulted andkilled, treachery cannot be appreciated against the accused. [71] In this case, thevictim was defenseless when seized by Marlon and Ronald. However, theprosecution failed to present any witness or conclusive evidence that Modesto wasdefenseless immediately before and when he was attacked and killed. It cannot bepresumed that although he was defenseless when he was seized the victim was in

the same situation when he was attacked, shot and stabbed by the malefactors. Totake advantage of superior strength means to purposely use force that is out ofproportion to the means of defense available to the person attacked. [72] What isprimordial, this Court held in People v. Rogelio Francisco[73] is that the assailantsdeliberately took advantage of their combined strength in order toconsummate the crime. It is necessary to show that the malefactors cooperatedin such a way as to secure advantage from their superiority in strength.[74] In thiscase, the prosecution failed to adduce evidence that Marlon and Ronald deliberatelytook advantage of their numerical superiority when Modesto was killed. Thebarefaced facts that the malefactors outnumbered Modesto and were armed whileModesto was not does not constitute proof that the three took advantage of theirnumerical superioty and their handguns when Modesto was shot and stabbed.[75]

In sum then, we believe that Marlon, Ronald and Leon are guilty only ofHomicide defined in and penalized by Article 249 of the Revised Penal Codewith reclusion temporal in its full period.

Although the special aggravating circumstance of the use of unlicensed firearmswas proven during the trial, there is no allegation in the Information that Marlon,Ronald and Leon had no license to possess the firearm. Lack of license to possess afirearm is an essential element of the crime of violation of PD1866 as amended byRepublic Act No. 8294, or as a special aggravating circumstance in the felony ofhomicide or murder.[76] Neither can dwelling, although proven, aggravate the crimebecause said circumstance was not alleged in the Information as required by Rule

110, Section 8 of the Revised Rules of Court.[77]

Although this rule took effect onDecember 1, 2000, after the commission of the offense in this case, nonetheless ithad been given retroactive effect considering that the rule is favorable to theaccused.[78]

There being no modifying circumstances in the commission of homicide, Marlon,Ronald and Leon should be meted an indeterminate penalty, the minimum of whichshall be taken from the entirety ofprision mayor, ranging from 6 years and one dayto 12 years and the maximum period of which shall be taken from the mediumperiod ofreclusion temporal, ranging from 14 years, 8 months and one day to 17years and 4 months.

Consequently, the award for damages in favor of the heirs of the victim should

be modified. The sum of P75,000.00 awarded as moral damages should be reducedtoP50,000.00 in accordance with prevailing jurisprudence.[79] The amount

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of P25,000.00 as exemplary damages is in order.[80] In addition, civil indemnity inthe amount of P50,000.00 should be awarded without need of proof, likewise inconsonance with prevailing jurisprudence.[81]

IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMEDwith MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and LeonDelim are hereby found guilty beyond reasonable doubt of the felony of Homicidedefined in and penalized by Article 249 of the Revised Penal Code. There being no

modifying circumstances in the commission of the crime, each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one(1) day ofprision mayorin its maximum period as minimum to fourteen (14) years,eight (8) months and one (1) day ofreclusion temporal in its medium period asmaximum. Accused-appellants are hereby ordered to pay, jointly and severally, tothe heirs of the victim the amount of P50,000.00 by way of civil indemnity, theamount of P50,000.00 by way of moral damages and the amount of P25,000.00 byway of exemplary damages.

SO ORDERED.

---

EDUARDO P. MANUEL vs PEOPLE OF THE PHILIPPINES,

D E C I S I O NCALLEJO, SR.,J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial

Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in

Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7,

2001, the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines,and within the jurisdiction of this Honorable Court, the above-named accusedEDUARDO P. MANUEL, being then previously and legally married to RUBYLUS[GAA] and without the said marriage having been legally dissolved, did thenand there willfully, unlawfully and feloniously contract a second marriage with

TINA GANDALERA-MANUEL, herein complainant, who does not know theexistence of the first marriage of said EDUARDO P. MANUEL to Rubylus[Gaa].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was

married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then

still a municipality of the Province of Rizal.[4] He met the private complainant Tina B.

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Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,

Dagupan City for two days looking for a friend. Tina was then 21 years old, a

Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to

Baguio City to visit her. Eventually, as one thing led to another, they went to a

motel where, despite Tinas resistance, Eduardo succeeded in having his way with

her. Eduardo proposed marriage on several occasions, assuring her that he was

single. Eduardo even brought his parents to Baguio City to meet Tinas parents,

and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March

1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the

Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their

marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life. Throughtheir joint efforts, they were able to build their home in Cypress Point, Irisan, BaguioCity. However, starting 1999, Manuel started making himself scarce and went totheir house only twice or thrice a year. Tina was jobless, and whenever she askedmoney from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo tookall his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the

National Statistics Office (NSO) in Manila where she learned that Eduardo had been

previously married. She secured an NSO-certified copy of the marriage contract.[7]She was so embarrassed and humiliated when she learned that Eduardo was in fact

already married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar

where she worked as a Guest Relations Officer (GRO). He fell in love with her and

married her. He informed Tina of his previous marriage to Rubylus Gaa, but she

nevertheless agreed to marry him. Their marital relationship was in order until this

one time when he noticed that she had a love-bite on her neck. He thenabandoned her. Eduardo further testified that he declared he was single in his

marriage contract with Tina because he believed in good faith that his first marriage

was invalid. He did not know that he had to go to court to seek for the nullification

of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife

because she threatened to commit suicide unless he did so. Rubylus was charged

withestafa in 1975 and thereafter imprisoned. He visited her in jail after three

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months and never saw her again. He insisted that he married Tina believing that

his first marriage was no longer valid because he had not heard from Rubylus for

more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty

beyond reasonable doubt of bigamy. He was sentenced to an indeterminatepenalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as

maximum, and directed to indemnify the private complainant Tina Gandalera the

amount of P200,000.00 by way of moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond

reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal

Code. It declared that Eduardos belief, that his first marriage had been dissolved

because of his first wifes 20-year absence, even if true, did not exculpate him fromliability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial

court further ruled that even if the private complainant had known that Eduardo had

been previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not

criminally liable for bigamy because when he married the private complainant, he

did so in good faith and without any malicious intent. He maintained that at the

time that he married the private complainant, he was of the honest belief that hisfirst marriage no longer subsisted. He insisted that conformably to Article 3 of the

Revised Penal Code, there must be malice for one to be criminally liable for a

felony. He was not motivated by malice in marrying the private complainant

because he did so only out of his overwhelming desire to have a fruitful marriage.

He posited that the trial court should have taken into account Article 390 of the New

Civil Code. To support his view, the appellant cited the rulings of this Court

in United States v. Pealosa[11]and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of

good faith and reliance on the Courts ruling in United States v. Enriquez[13]were

misplaced; what is applicable is Article 41 of the Family Code, which amended

Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14]the OSG further posited that as provided in Article 41 of the Family Code, there is

a need for a judicial declaration of presumptive death of the absent spouse to

enable the present spouse to marry. Even assuming that the first marriage was

void, the parties thereto should not be permitted to judge for themselves the nullity

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of the marriage; the matter should be submitted to the proper court for resolution.

Moreover, the OSG maintained, the private complainants knowledge of the first

marriage would not afford any relief since bigamy is an offense against the State

and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by thetrial court was erroneous and sought the affirmance of the decision appealed from

with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of

the RTC with modification as to the penalty of the accused. It ruled that the

prosecution was able to prove all the elements of bigamy. Contrary to the

contention of the appellant, Article 41 of the Family Code should apply. Before

Manuel could lawfully marry the private complainant, there should have been ajudicial declaration of Gaas presumptive death as the absent spouse. The

appellate court cited the rulings of this Court in Mercado v. Tan[15]and Domingo v.

Court of Appeals[16]to support its ruling. The dispositive portion of the decision

reads:

WHEREFORE, in the light of the foregoing, the Decisionpromulgated on July 31, 2002 is hereby MODIFIED to reflect, as ithereby reflects, that accused-appellant is sentenced to an

indeterminate penalty of two (2) years, four (4) months and one (1)day ofprision correccional, as minimum, to ten (10) years ofprisionmayoras maximum. Said Decision isAFFIRMED in all other respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari,insisting that:

ITHE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAWWHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY

PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THEREWAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH ASPROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

IITHE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAWWHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORALDAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second

element of the felony, i.e., that the marriage has not been legally dissolved or, incase his/her spouse is absent, the absent spouse could not yet be presumed dead

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under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had

been absent for 21 years since 1975; under Article 390 of the Civil Code, she was

presumed dead as a matter of law. He points out that, under the first paragraph of

Article 390 of the Civil Code, one who has been absent for seven years, whether or

not he/she is still alive, shall be presumed dead for all purposes except for

succession, while the second paragraph refers to the rule on legal presumption of

death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises

by operation of law upon the satisfaction of two requirements: the specified period

and the present spouses reasonable belief that the absentee is dead. He insists

that he was able to prove that he had not heard from his first wife since 1975 and

that he had no knowledge of her whereabouts or whether she was still alive; hence,

under Article 41 of the Family Code, the presumptive death of Gaa had arisen by

operation of law, as the two requirements of Article 390 of the Civil Code are

present. The petitioner concludes that he should thus be acquitted of the crime of

bigamy.

The petitioner insists that except for the period of absences provided for in

Article 390 of the Civil Code, the rule therein on legal presumptions remains valid

and effective. Nowhere under Article 390 of the Civil Code does it require that there

must first be a judicial declaration of death before the rule on presumptive death

would apply. He further asserts that contrary to the rulings of the trial and

appellate courts, the requirement of a judicial declaration of presumptive death

under Article 41 of the Family Code is only a requirement for the validity of the

subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in

awarding moral damages in favor of the private complainant. The private

complainant was a GRO before he married her, and even knew that he was

already married. He genuinely loved and took care of her and gave her financial

support. He also pointed out that she had an illicit relationship with a lover whom

she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA

affirming the petitioners conviction is in accord with the law, jurisprudence and the

evidence on record. To bolster its claim, the OSG cited the ruling of this Court

in Republic v. Nolasco.[19]

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The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy,

reads:

Art. 349. Bigamy. The penalty ofprision mayorshall beimposed upon any person who shall contract a second or subsequentmarriage before the former marriage has been legally dissolved, orbefore the absent spouse has been declared presumptively dead bymeans of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarselegtimamente disuelto el anterior, ser castigado con la pena de

prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the

juridical tie of marriage established by law.[20] The phrase or before the absent

spouse had been declared presumptively dead by means of a judgment rendered in

the proper proceedings was incorporated in the Revised Penal Code because the

drafters of the law were of the impression that in consonance with the civil law

which provides for the presumption of death after an absence of a number of

years, the judicial declaration of presumed death like annulment of

marriage should be a justification for bigamy.[21]

For the accused to be held guilty of bigamy, the prosecution is burdened to

prove the felony: (a) he/she has been legally married; and (b) he/she contracts a

subsequent marriage without the former marriage having been lawfully dissolved.

The felony is consummated on the celebration of the second marriage or

subsequent marriage.[22] It is essential in the prosecution for bigamy that the

alleged second marriage, having all the essential requirements, would be valid were

it not for the subsistence of the first marriage.[23] Viada avers that a third element

of the crime is that the second marriage must be entered into with fraudulent

intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements

of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and

(2) the celebration of a second marriage. It does not matter whether the first

marriage is void or voidable because such marriages have juridical effects untillawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled

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in Domingo v. Court of Appeals[26]and Mercado v. Tan,[27]under the Family Code of

the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as

Viada and declared that there are three (3) elements of bigamy: (1) an

undissolved marriage; (2) a new marriage; and (3) fraudulent intention constitutingthe felony of the act.[28] He explained that:

This last element is not stated in Article 349, because it isundoubtedly incorporated in the principle antedating all codes, and,constituting one of the landmarks of our Penal Code, that, where thereis no willfulness there is no crime. There is no willfulness if the subjectbelieves that the former marriage has been dissolved; and this mustbe supported by very strong evidence, and if this be produced, the actshall be deemed not to constitute a crime. Thus, a person whocontracts a second marriage in the reasonable and well-founded belief

that his first wife is dead, because of the many years that have elapsedsince he has had any news of her whereabouts, in spite of hisendeavors to find her, cannot be deemed guilty of the crime of bigamy,because there is no fraudulent intent which is one of the essentialelements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with

bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code

provides that there is deceit when the act is performed with deliberate intent.

Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as

an intentional felony, it is deemed voluntary.[30] Although the words with malice

do not appear in Article 3 of the Revised Penal Code, such phrase is included in the

word voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act

without legal excuse or justification from which another suffers injury.[32] When the

act or omission defined by law as a felony is proved to have been done or

committed by the accused, the law presumes it to have been intentional.[33] Indeed,

it is a legal presumption of law that every man intends the natural or probable

consequence of his voluntary act in the absence of proof to the contrary, and such

presumption must prevail unless a reasonable doubt exists from a consideration of

the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence

of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

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In the present case, the prosecution proved that the petitioner was married toGaa in 1975, and such marriage was not judicially declared a nullity; hence, themarriage is presumed to subsist.[36] The prosecution also proved that the petitionermarried the private complainant in 1996, long after the effectivity of the FamilyCode.

The petitioner is presumed to have acted with malice or evil intent when he

married the private complainant. As a general rule, mistake of fact or good faith of

the accused is a valid defense in a prosecution for a felony by dolo; such defense

negates malice or criminal intent. However, ignorance of the law is not an excuse

because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married

the private complainant in 1996, he was of the well-grounded belief that his first

wife was already dead, as he had not heard from her for more than 20 years since

1975. He should have adduced in evidence a decision of a competent court

declaring the presumptive death of his first wife as required by Article 349 of the

Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial

declaration also constitutes proof that the petitioner acted in good faith, and

would negate criminal intent on his part when he married the private complainant

and, as a consequence, he could not be held guilty of bigamy in such case. The

petitioner, however, failed to discharge his burden.

The phrase or before the absent spouse has been declared presumptively

dead by means of a judgment rendered on the proceedings in Article 349 of the

Revised Penal Code was not an aggroupment of empty or useless words. The

requirement for a judgment of the presumptive death of the absent spouse is for

the benefit of the spouse present, as protection from the pains and the

consequences of a second marriage, precisely because he/she could be charged

and convicted of bigamy if the defense of good faith based on mere testimony is

found incredible.

The requirement of judicial declaration is also for the benefit of the State.

Under Article II, Section 12 of the Constitution, the State shall protect and

strengthen the family as a basic autonomous social institution. Marriage is a social

institution of the

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Crim Cases - Art3 (1)