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VOL. 197, MAY 14, 1991 79

People vs. Mapalao

*
G.R. No. 92415. May 14, 1991.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. OMAR MAPALAO and REX MAGUMNANG,
defendants-appellants.

Constitutional Law; Rights of Accused; Criminal Law;

Robbery with Homicide; Appeals; An accused who escapes from
confinement or jumps bail or flees to a foreign country, loses his
standing in court, and unless he surrenders or submits himself to
the jurisdiction of the Court, he is deemed to have waived any
right to seek relief from the court, including his right to appeal his
conviction.—Parenthetically, the appeal of appellant Rex
Magumnang should be struck down. After arraignment and
during the trial, he escaped from confinement and had not been
apprehended since then. Accordingly, as to him the trial in
absentia proceeded and thereafter the judgment of conviction was
promulgated. Nevertheless, through counsel, he appealed to this
Court. Under Section 8, Rule 122 of the 1985 Rules of Criminal
Procedure, the Court, may “upon motion of the appellee or on its
own motion, dismiss the appeal if the appellant escapes from
prison or confinement or jumps bail or flees to a foreign country
during the pendency of the appeal.” In this case, appellant
Magumnang remained at large even as his appeal was pending.
Hence, by analogy his appeal must be dismissed. The reason for
this rule is because once an accused escapes from prison or
confinement or jumps bail or flees to a foreign country, he loses
his standing in court and unless he surrenders or submits to the
jurisdiction of the court he is deemed to have waived any right to
seek relief from the court. Thus when as in this case he escaped
from confinement during the trial on the merits and after his
arraignment, and so the trial in absentia proceeded and the
judgment against him was promulgated in accordance with
Section 14(2) Article III of the 1987 Constitution, nonetheless, as
he remained at large, he should

_______________

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* EN BANC.

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People vs. Mapalao

not be afforded the right to appeal therefrom unless he

voluntarily submits to the jurisdiction of the court or is otherwise
arrested, within fifteen (15) days from the notice of the judgment
against him. While at large as above stated he cannot seek relief
from the Court as he is deemed to have waived the same and he
has no standing in court.
Criminal Law; Robbery with Homicide; Penalties; Death
Penalty; Robbery attended by homicide or murder is certainly a
heinous offense; In order to minimize, if not entirely prevent
serious crimes against life, chastity, and of property resulting in
the wanton taking of human life, a law must now be enacted
defining what are the heinous offenses punishable with the death
penalty.—As the Court observed at the opening paragraph of this
decision, robbery attended by homicide or murder is certainly a
heinous offense, more so when in this case it is committed in the
highway. There is hardly any justification for the court to share
the leniency of the trial court by imposing only the life
imprisonment as penalty. The circumstances of the commission of
the offense do not justify at all or require any killing or injury to
be inflicted on any of the victims. The appellant and his
confederates were all armed while the victims were not. They
were at their mercy. None of them attempted to fight back or to
resist. They gave all their valuables and personal belongings. All
they were pleading for was that their lives be spared. It fell on
deaf ears. It was a senseless killing for no valid reason. The
appellant and his confederates deserve the supreme penalty of
death and no less. But as the Court said, this is not possible under
the Constitution. Our peace and order situation today is very
volatile. We have experienced several attempted coups and we are
warned of other possible coups. Our peace and order problem is a
continuing one. The division in our society is obvious and gaping.
Our country is suffering from the economic depression caused not
only by the recent calamities that visited us which were
compounded by the Gulf war. Thus, measures should be
undertaken in order to minimize if not entirely prevent serious
crimes against life, chastity and of property resulting in the
wanton taking of human life. Our hope is for a lasting peace and

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order in our society. A law must now be enacted defining what are
the heinous offenses punishable with the death penalty. We
should not tarry too long.

APPEAL from the decision of the Regional Trial Court of

Baguio City, Br. 6.

The facts are stated in the opinion of the Court.

     The Solicitor General for plaintiff-appellee.
     Paterno Aquino for defendants-appellants.
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People vs. Mapalao

GANCAYCO, J.:

Highway robbery with homicide is a heinous offense. It is

condemnable enough for a person to commit robbery by
way of a holdup but if in the process human life is taken,
the criminal act is certainly detestable. No less than the
death penalty provided by law should be meted out if we
are to contain the proliferation of this odious offense.
Unfortunately, unless Congress and Malacañang act
accordingly to consider by law this class of crimes as
heinous offenses, the Courts must have to comply with the
constitutional injunction against the imposition of the
supreme penalty.
The facts are accurately related by the Regional Trial
Court (RTC) of Baguio City as follows:

“It appears from the Evidence that Adolfo Quiambao is a

businessman selling textile materials. He has a stall in the
Hilltop Market in Baguio where he sells his goods. But sometimes
on weekends, he goes to Abatan, Buguias, Benguet to sell his
goods.
On September 19, 1987 at about 3:00 to 4:00 A.M., he went to
Abatan, Buguias, Benguet using his Ford Fiera with his driver
Felizardo Galvez and a certain Jimmy Jetwani (a bombay), where
he sold his goods in the afternoon until at night and so, stayed
overnight thereat.
The next day, at about 7:00 A.M. of September 20, 1987, after
breakfast, Adolfo Quiambao, his driver Felizardo Galvez, and
Jimmy Jetwani proceeded to Mankayan, Benguet. This time four
Muslims rode with them, namely: Omar Mapalao, Rex
Magumnang, Aliman Bara-akal, and a certain Anwar Hadji
Edris. Incidentally, Omar Mapalao and Rex Magumnang had
previously rode once with Adolfo Quiambao in the latter’s vehicle
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sometime September 13, 1987 while Anwar Hadji Edris (alias

Randy) was known to Adolfo Quiambao for sometime already.
They arrived in Mankayan at about 8:00 A.M. They stayed 4
hours in Mankayan to sell goods and collect from customers.
At about 12:00 noon of the same day of September 20, 1987,
they, the same passengers previously, started from Mankayan
going back to Abatan, Buguias, Benguet, with one passenger
added, Simeon Calama. At Abatan, Adolfo Quiambao collected
amounts from his customers for about an hour.
At about 1:00 to 2:00 P.M. on September 20, 1987, Adolfo
Quiambao proceeded on his way back to Baguio. They were 10 in
all who rode in his Ford Fiera, namely: (1) his driver Felizardo
Galvez; (2) Jimmy

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People vs. Mapalao

Jetwani; (3) Simeon Calama, a son of his customer in Mankayan;

(4) Rene Salonga, a friend with whom he stayed in Abatan when
he started his business; (5) Eduardo Lopez, a co-vendor who sells
also goods in Abatan; (6) Omar Mapalao; (7) Rex Magumnang; (8)
Aliman Bara-akal; (9) Anwar Hadji Edris; and (10) Adolfo
Quiambao himself.
On the way, they stopped at Natubleng, Buguias, Benguet at
about 3:00 P.M. where Jimmy Jetwani and Adolfo Quiambao
collected their credits for less than an hour.
From there, they proceeded to Sayangan, Atok, Benguet where
they stopped at about 5:00 P.M. for Adolfo Quiambao and Jimmy
Jetwani to collect their credits. At Sayangan, too, they ate in a
restaurant.
It was about 6:00 P.M. already when they left Sayangan to
proceed to Baguio. But when they left Sayangan, Adolfo
Quiambao noticed that there were now 5 Muslims with
apparently Gumanak Ompa joining them making them 11
passengers in all in his Ford Fiera.
On the way back to Baguio, after about an hour of driving, one
of the passengers stopped the vehicle in order to urinate. So they
all alighted to urinate. At this point, Adolfo Quiambao took over
driving telling his driver Felizardo Galvez to rest.
After about 30 minutes of driving from the time Adolfo
Quiambao took over, one of the Muslims stopped the vehicle at
Km. 24, Caliking, Atok, Benguet, in order to urinate. And so again
they stopped with the Muslims alighting to urinate.
Thereafter, when Adolfo Quiambao was about to start the
vehicle to proceed to Baguio, while waiting for the Muslims to
board, Omar Mapalao went to the left side of the vehicle near the

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driver’s seat, pointed a gun (Exh. G) at Adolfo Quiambao and

announced ‘This is a holdup.’ Another Muslim went to the other
side of the front seat while another Muslim went to the back to
guard the back door of the Ford Fiera. And Gumanak Ompa and
Rex Magumnang, each armed with a knife, went inside the back
of the Ford Fiera and pointed their knives on the passengers.
Forthwith, Omar Mapalao, while pointing the gun, ordered all
passengers in front to go inside the back of the vehicle. Adolfo
Quiambao and Jimmy Jetwani complied. But as Adolfo Quiambao
went inside the back of the vehicle, he heard arguing outside and
noticed a rumble and a commotion by the left side of the vehicle
involving his driver, Felizardo Galvez, and the Muslims. As a
consequence, the driver Galvez was injured. Adolfo Quiambao
pleaded that they are willing to give their money and valuables
provided they (the Muslims) will not harm them. Rex
Magumnang and Gumanak Ompa, while poking their knives on
the passengers, divested Adolfo Quiambao of P40,000.00, Jimmy
Jetwani of P14,000.00, and Simeon Calama

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People vs. Mapalao

of P3,700.00 in cash, watch and clothes.

After divesting the passengers of their money, Rex
Magumnang went to the driver’s seat to start the vehicle but
could not and so he called for Adolfo Quiambao to start it. But
Adolfo Quiambao, too, could not start the vehicle. Angered, Omar
Mapalao started counting 1 to 3 threatening to shoot Quiambao if
the vehicle would not start. Adolfo Quimbao pleaded that he was
not the driver and so called for Felizardo Galvez, despite the
latter being injured, to start the vehicle. After Galvez was able to
start the engine, immediately Rex Magumnang went by the side
of the driver, Galvez, and took hold of the steering wheel while
ordering the latter to step on the accelerator and proceed to the
direction of the left side of the road towards the precipice (bangin)
indicating an intention to have the vehicle driven to the precipice.
It was at this point when Galvez struggled and fought with Rex
Magumnang for control of the steering wheel as it was being
directed to the ravine. It was good Galvez was able to step on the
brakes on time to prevent it from falling into the precipice. It was
then that Rex Magumnang stabbed and thrust the knife on
Galvez with the latter jerking saying ‘aray’ in pain. At this point,
too, the passengers panicked and jumped out of the vehicle
scampering in different directions for safety. Adolfo Quiambao
jumped out into the ground first and when he saw Mapalao
pointing a gun at him, he jumped into the precipice thinking it

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was better than to be shot at and in doing so hurt himself. The

driver Galvez fell to the ravine upon being stabbed. Jimmy
Jetwani jumped out of the vehicle and ran to the mountains
without looking back. Simeon Calama and Eduardo Lopez and
Rene Salonga, too, jumped out and sought safety on the road.
Meantime, a vegetable truck passed by and immediately
Aliman Bara-akal boarded the same on the front seat with the
driver. Eduardo Lopez also ran after the same truck and boarded
it at the back. Not far behind the first vegetable truck was
another vegetable truck following it. Simeon Calama stopped it
asking for help but Omar Mapalao, with gun in his hand,
prevented him. And so the second vegetable truck went on but
before it could fully pass by, Simeon Calama took the chance of
boarding it when Omar Mapalao’s attention was diverted.
Thus, the two vegetable trucks proceeded on their way till they
stopped at the toll gate at Acop, Tublay, Benguet. Immediately,
Simeon Calama and Eduardo Lopez alighted and reported to the
Police Station near the toll gate that they were help up and that
one of the Muslims who held them up was in the first truck
parked near the toll gate. Aliman Bara-akal was, thus, arrested
by the Tublay Police and the amount of P4,015.00 was recovered
from him when frisked at the Police Station.

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People vs. Mapalao

Meanwhile, at the crime scene, the 3 Muslims left thereat,

Omar Mapalao, Rex Magumnang and Gumanak Ompa, fled to the
mountains leaving their victims and avoided the road so as not to
be seen.
It is not clear on record where Anwar Hadji Edris (alias Randy)
went after the holdup but in any case he eluded arrest.
After the Muslims have left, Adolfo Quiambao went up to the
road level and by then saw also his driver Galvez wounded lying
in the precipice.
Thereafter, another vegetable truck passed by, and Adolfo
Quiambao asked the driver to help them bring his wounded
driver, Felizardo Galvez, from the ravine. Thus, Galvez was
brought up to the road and placed inside the Ford Fiera. The
vegetable truck driver helped in starting the Ford Fiera. And from
there, they proceeded immediately to the Benguet Hospital at La
Trinidad, Benguet, but when there was no doctor, they brought
Galvez to the Baguio General Hospital.
At the Baguio General Hospital, efforts to save the life of
Felizardo Galvez proved futile as the next morning he died of his
stab wounds.

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Dr. Wi submitted an Autopsy Report (Exh. A) as follows:

‘I. STAB WOUNDS:

1. Right Mid-clavicular area, 7th Intercostal Space,

penetrating with round edges, 0.5 x 0.5 cm.
2. Left Lumbar area, level 11th Intercostal Space,
penetrating, with clean cut edges, 1.9 cm.
3. Anterior-superior right pre-auricular area, with clean cut
edges, 3.5 cm., and 2 cm. deep.
4. Right Mid-clavicular area level 2nd rib, non penetrating, 3
x 0.7 cm., and 2 cm. deep.
5. Left anterior Deltoid area, 9.5 cm. (extended Surgically).
6. Posterior leaf of the left Diaphragm 3 cm. with
hemorrhages around the wound.
7. Through and through, Right lower lobe of the Lung, 0.5 x
0.5 cm. with round edges.

‘II INCISED WOUNDS:

1. Right lateral neck, superficial, 2 cm.

2. Left supraclavicular to left submandibular area,
superficial, 12.5 cm.
3. Left upper arm, lateral area, 2 cm. and 2 mm. deep.’

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People vs. Mapalao

Dr. Wi, also, submitted a sketch of the human body showing

the stab wounds sustained in the body of Felizardo Galvez (Exh. B
and Exh. C) and the Death Certificate (Exh. D) showing the cause
of death as ‘Hypovolemic Shock secondary to Multiple Stab
wounds at the right anterior superior and auricular area, right
anterior chest, left deltoid area, left lumbar area, posterior with
laceration of the right lower lobe of the lung, etc.’
Adolfo Quiambao was also treated of his injuries as shown in
his Medical Certificate (Exh. E).
Subsequently, the Tublay Police were able to locate and
apprehend on September 21, 1987 at Sto. Niño, Tublay, Omar
Mapalao, Rex Magumnang and Gumanak Ompa.
Also, Jimmy Jetwani, who fled to the mountains at the scene of
the incident was found and rescued the next morning after the
holdup.
In a confrontation at the Tublay Police Station on September
22, 1987, Adolfo Quiambao, Jimmy Jetwani and Simeon Calama

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positively identified the four (4) Muslims in custody, Omar

Mapalao, Rex Magumnang, Gumanak Ompa and Aliman Bara-
akal as among those who held them up at the Halsema Road
(mountain trail), Km. 24, Caliking, Atok, Benguet.
Adolfo Quiambao, Jimmy Jetwani and Simeon Calama gave
their statements (Exhs. F, M and N) to the police.
At the Tublay Police Station, too, the gun caliber .38 paltik
(Exh. G) with 5 live ammunitions (Exhs. G-1 to G-5) and the knife
(Exh. G-6) used in the holdup were recovered from the possession
of Gumanak Ompa.
Finally, the policemen who apprehended Aliman Bara-akal at
the toll gate executed a joint affidavit (Exhs. O and P) and the
policemen who apprehended Mapalao, Ompa and Magumnang 1
at
Sto. Niño, Tublay, executed a joint affidavit (Exh. R).”

In due course, an amended information was filed in the

RTC of Baguio City charging Rex Magumnang, Aliman
Bara-akal, Anwar Hadji Edris, Gumanak Ompa and Omar
Mapalao of the crime of Highway Robbery with Homicide,
defined and penalized under Presidential Decree No. 532,
which was allegedly committed on September 20, 1987 at
Km. 24 along Halsema Road, Caliking, Atok, Benguet.
Upon arraignment, accused Omar Mapalao, Gumanak
Ompa, Rex Magumnang and Aliman Bara-akal, assisted by
their coun-

________________

1 Pages 16 to 20, Rollo.

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People vs. Mapalao

sel, pleaded not guilty.

Accused Anwar Hadji Edris had not been arrested and
remained at large. On March 17, 1988, accused Aliman
Bara-akal died in jail during the trial so the case was
dismissed as to him on April 4, 1988. Accused Rex
Magumnang, after being positively identified by witnesses
Adolfo Quiambao, Jimmy Jetwani and Simeon Calama
during the trial, escaped from detention on September 25,
1988 when brought for medical treatment to the Baguio
General Hospital, so the trial in absentia continued as to
him.
After the trial on the merits, a decision was rendered by
the trial court on January 12, 1990 convicting the accused
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of the offense charged as follows—

“WHEREFORE, the Court finds accused Omar Mapalao y

Dianalan, Gumanak Ompa, and Rex Magumnang guilty beyond
reasonable doubt as principals by direct participation, of the
offense of Robbery with Homicide in a Highway in violation of PD
532, as charged, and hereby sentences each of them to suffer
imprisonment of Reclusion Perpetua, to indemnify jointly and
severally the heirs of deceased Felizardo Galvez the sum of Sixty
Thousand (P60,000.00) Pesos for his death; to indemnify jointly
and severally the offended parties Adolfo Quiambao the sum of
Forty Thousand (P40,000.00) Pesos; Jimmy Jetwani the sum of
Fourteen Thousand (P14,000.00) Pesos; and Simeon Calama, the
sum of Three Thousand Seven Hundred (P3,700.00) Pesos as
actual damages, all indemnifications being without subsidiary
imprisonment in case of insolvency, and to pay the costs.
The accused Omar Mapalao and Gumanak Ompa being
detention prisoners are entitled to 4/5 of their preventive
imprisonment in accordance with Article 29 of the Revised Penal
Code in the service of their sentence.
The gun caliber .38 paltik (Exh. G) with 5 live ammunitions
(Exhs. G-1 to G-5), and the knife (Exh. G-6) being instruments of
the crime are hereby declared forfeited and confiscated in favor of
the State. 2
SO ORDERED.”

Not satisfied therewith the accused Omar Mapalao and

Rex Magumnang appealed the decision to this Court
alleging the

________________

2 Pages 24 to 25, Rollo.

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People vs. Mapalao

following errors:

“I

THE TRIAL COURT ERRED IN FAILING TO CONSIDER

SIGNIFICANT EXCULPATORY FACTS AND
CIRCUMSTANCES.

II

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THE TRIAL COURT ERRED IN FAILING TO APPLY THE

CONSTITUTIONAL MANDATE ON THE PRESUMPTION OF
INNOCENCE AND PROOF BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-

APPELLANTS GUILTY AS PRINCIPALS IN THE CRIME
CHARGED AND SENTENCING THEM TO SUFFER AN
INDETERMINATE SENTENCE OF FROM 17 YEARS, 4
MONTHS AND 1 DAY OF RECLUSION TEMPORAL AS
MINIMUM TO3
20 YEARS OF RECLUSION TEMPORAL AS
MAXIMUM.”

Parenthetically, the appeal of appellant Rex Magumnang

should be struck down. After arraignment and during the
trial, he escaped from confinement and had not been
apprehended since then. Accordingly, as to him the trial in
absentia proceeded and thereafter the judgment of
conviction was promulgated.
Nevertheless, through counsel, he appealed to this
Court. Under Section 8, Rule 122 of the 1985 Rules of
Criminal Procedure, the Court, may “upon motion of the
appellee or on its own motion, dismiss the appeal if the
appellant escapes from prison or confinement or jumps bail
or flees to a foreign country during the pendency of the
appeal.” In this case, appellant Magumnang remained at
large even as his appeal was pending. Hence, by analogy
his appeal must be dismissed.
The reason for this rule is because once an accused
escapes from prison or confinement or jumps bail or flees to
a foreign country, he loses his standing in court and unless
he surrenders
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People vs. Mapalao

or submits to the jurisdiction of the court he is deemed to

have waived any right to seek relief from the court.
Thus when as in this case he escaped from confinement
during the trial on the merits and after his arraignment,
and so the trial in absentia proceeded and the judgment
against him was promulgated in accordance with Section
14(2) Article III of the 1987 Constitution, nonetheless, as
he remained at large, he should not be afforded the right to
appeal therefrom unless he voluntarily submits to the
jurisdiction of the court or is otherwise arrested, within
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fifteen (15) days from the notice of the judgment against

him. While at large as above stated he cannot seek relief
from the Court as he is deemed to have waived the same
and he has no standing in court.
To this effect a modification is in order of the provision
of the last sentence of Section 6, Rule 120 of the 1985 Rules
of Criminal Procedure which provides:

“If the judgment is for conviction, and the accused’s failure to

appear was without justifiable cause, the court shall further order
the arrest of the accused, who may appeal within fifteen (15) days
from notice of the decision to him or his counsel.”

It should provide instead that if upon promulgation of the

judgment, the accused fails to appear without justifiable
cause, despite due notice to him, his bondsmen or counsel,
he is thereby considered to have waived his right to appeal.
However, if within the fifteen (15) day period of appeal he
voluntarily surrenders to the court or is otherwise arrested,
then he may avail of the right to appeal within said period
of appeal.
By the same token, an accused who, after the filing of an
information, is at large and has not been apprehended or
otherwise has not submitted himself to the jurisdiction of
the court, cannot apply for bail or be granted any other
relief by the courts until he submits himself to 4
its
jurisdiction or is arrested. In Gimenez vs. Nazareno, this
Court had occasion to rule on a similar case in this wise—

________________

4 160 SCRA 1, 5 to 7 (1988). Section 14(2), Article III, 1987

Constitution; and see also, People vs. Salas, 143 SCRA 163, 166 to 167
(1987).

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“First of all, it is not disputed that the lower court acquired

jurisdiction over the person of the accused-private respondent
when he appeared during the arraignment on August 22, 1973
and pleaded not guilty to the crime charged. In criminal cases,
jurisdiction over the person of the accused is acquired either by
his arrest for voluntary appearance in court. Such voluntary
appearance is accomplished by appearing for arraignment as
what accused-private respondent did in this case.

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But the question is this—was that jurisdiction lost when the

accused escaped from the custody of the law and failed to appear
during the trial? We answer this question in the negative. As We
have consistently ruled in several earlier cases, jurisdiction once
acquired is not lost upon the instance of parties but continues
until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that
where the accused appears at the arraignment and pleads not
guilty to the crime charged, jurisdiction is acquired by the court
over his person and this continues until the termination of the
case, notwithstanding his escape from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973
Constitution aforecited a ‘trial in absentia’ may be had when the
following requisites are present; (1) that there has been an
arraignment; (2) that the accused has been notified; and (3) that
he fails to appear and his failure to do so is unjustified.
In this case, all the above conditions were attendant calling for
a trial in absentia. As the facts show, the private respondent was
arraigned on August 22, 1973 and in the said arraignment he
pleaded not guilty. He was also informed of the scheduled
hearings set on September 18 and 19, 1973 and this is evidenced
by his signature on the notice issued by the lower court. It was
also proved by a certified copy of the Police Blotter that private
respondent escaped from his detention center. No explanation for
his failure to appear in court in any of the scheduled hearings was
given. Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions
of the 1973 Constitution, correctly proceeded with the reception of
the evidence of the prosecution and the other accused in the
absence of private respondent, but it erred when it suspended the
proceedings as to the private respondent and rendered a decision
as to the other accused only.
Upon the termination of a trial in absentia, the court has the
duty to rule upon the evidence presented in court. The court need
not wait for the time until the accused who escaped from custody
finally decides to appear in court to present his evidence and
cross-examine

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People vs. Mapalao

the witnesses against him. To allow the delay of proceedings for

this purpose is to render ineffective the constitutional provision
on trial in absentia. As it has been aptly explained:

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‘x x x The Constitutional Convention felt the need for such a provision as

there were quite a number of reported instances where the proceedings
against a defendant had to be stayed indefinitely because of his non-
appearance. What the Constitution guarantees him is a fair trial, not
continued enjoyment of his freedom even if his guilt could be proved.
With the categorical statement in the fundamental law that his absence
cannot justify a delay provided that he has been duly notified and his
failure to appear is unjustified, such an abuse could be remedied. That is
the way it should be, for both society and the offended party have a
legitimate interest in seeing to it that crime should not go unpunished.’

The contention of the respondent judge that the right of the

accused to be presumed innocent will be violated if a judgment is
rendered as to him is untenable. He is still presumed innocent. A
judgment of conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty beyond
reasonable doubt. Also, there can be no violation of due process
since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in
absentia retains his rights to cross-examine and to present
evidence on his behalf. By his failure to appear during the trial of
which he had notice, he virtually waived these rights. This Court
has consistently held that the right of the accused to
confrontation and cross-examination of witnesses is a personal
right and may be waived. In the same vein, his right to present
evidence on his behalf, a right given to him for his own benefit
and protection, may be waived by him. Finally, at this point, We
note that Our pronouncement in this case is buttressed by the
provisions of the 1985 Rules on Criminal Procedure, particularly
Section 1(c) of Rule 115 which clearly reflects the intention of the
framers of our Constitution, to wit:

‘x x x The absence of the accused without any justifiable cause at the trial
on a particular date of which he had notice shall be considered a waiver
of his right to be present during that trial. When an accused under
custody had been notified of the date of the trial and escapes, he shall be
deemed to have waived his right to be present on said date and on all
subsequent trial dates until custody is regained. x x x’

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VOL. 197, MAY 14, 1991 91

People vs. Mapalao

Accordingly, it is Our considered opinion, and We so hold, that

an escapee who has been duly tried in absentia waives his right to
present evidence on his own behalf and to confront and cross-
examine witnesses who testified against him.”

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Now to the appeal of appellant Omar Mapalao.

The main thrust of his appeal is a denial of his
complicity. While he admitted to be among the passengers
of the vehicle on that fateful day and to be present during
the holdup, he alleged that he did not participate at all in
the commission of the crime and that he did not know
anything about its commission as in fact he left with
Magumnang after the alleged holdup. He also asserted that
the prosecution witnesses could not have identified him in
view of the darkness of the night then. He said that when
they were apprehended by the police no firearm or money
was found in his possession.
The Court finds that the appeal is devoid of merit.
The evidence shows very clearly that on the date of the
holdup the appellant was already a passenger in the
vehicle of Adolfo Quiambao since 7:00 A.M. of September
20, 1987 which was driven by Felizardo Galvez, with
Jimmy Jetwani, Quiambao, Rex Magumnang, Aliman
Bara-akal, Anwar Hadji Edris and Calama. They were
together the whole day up to the evening in going to
Abatan, Buguias, Benguet and in the afternoon of the same
day they were also together on the way back to Baguio from
Abatan until the holdup occurred in the early evening of
the same day at Km. 24, Caliking, Atok, Benguet. The
Muslims stopped the vehicle to urinate at said place.
Appellant went to the left side of the vehicle near the
driver’s seat and pointed a gun at Quiambao and
announced “this is a holdup.” A Muslim went to the other
side of the front sea while another Muslim went to the back
to stand guard. Gumanak Ompa and Rex Magumnang,
each armed with a knife, went inside the back of the Ford
Fiera and pointed their knives at the passengers. Appellant
while pointing the gun ordered the passengers to go to the
back of the vehicle so Quiambao and Jetwani complied.
After Quiambao went to the back of the vehicle he noticed a
commotion near the left side of the vehicle involving his
driver Galvez and the Muslims. Galvez was harmed.
Quiambao pleaded that they are willing to give their
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92 SUPREME COURT REPORTS ANNOTATED

People vs. Mapalao

money and valuables provided the Muslims will not harm

them. Rex Magumnang and Gumanak Ompa divested
Quiambao of P40,000.00, Jetwani of P14,000.00 and

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Calama of P3,700.00 in cash, a watch and clothes while

poking their knives at them.
Magumnang tried to start the vehicle but as he could
not he called Quiambao to start it but the latter also failed.
Angered, the appellant started counting 1 to 3 threatening
to shoot Quiambao if the vehicle did not start. Quiambao
called Galvez who was able to start the engine.
Magumnang went by the side of Galvez and took the
steering wheel and drove towards the precipice. Galvez
struggled and fought with Magumnang for control of the
steering wheel as it was directed to the ravine.
Magumnang stabbed and thrust the knife at Galvez. The
passengers panicked and jumped and ran away in different
directions. Mapalao, Magumnang and Ompa fled to the
mountains.
From the foregoing evidence of the prosecution there can
be no question as to the participation of the appellant in
the robbery holdup. He was positively identified by
witnesses who were together with the appellant from the
morning up to the evening of the same day in the Ford
Fiera. Quiambao categorically testified that it was the
appellant who was holding the gun with two hands ordered
them to give
5
their cash collections and personal belongings
to them. Jimmy Jetwani corroborated Quiambao’s
testimony in that it was the appellant who ordered them at
gunpoint to get down from the vehicle and to go to the back
and to give their money to them. Although 6
it was already
dark there was a light inside the vehicle.
On cross-examination Jetwani stuck to his identification
of the appellant as one of the culprits as he saw not only
his face but the gun7 he used by the side of the door facing
him and Quiambao. Another prosecution witness, Simeon
Calama, also identified appellant as the one who pointed a
gun at them in front. He stated he is familiar with his voice
8
as during the journey they were joking with each other.

________________

5 TSN, April 4, 1988, pp. 12-13.

6 TSN, July 12, 1988, pp. 135-137.
7 TSN, July 12, 1988, pp. 135-137.
8 TSN, August 12, 1988, pp. 10-11.

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People vs. Mapalao

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The identification of the culprits in offenses of this nature

is vital and decisive. In this case the identification was
made by eyewitnesses who were together with the
appellant practically the whole day in the same vehicle,
and who themselves are the victims of the holdup staged by
the appellant with his other coaccused. Although it was
already dark there was light in the vehicle. Moreover, there
were no other persons in the vicinity at the time of the
holdup except the appellant, his co-accused and the
victims.
Contrary to the claim of appellant that he is innocent as
he did not escape together with Edris who was allegedly
the principal player in the holdup, the fact remains that
the appellant escaped to the mountains together with his
co-accused Magumnang and Gumanak Ompa. Their escape
is evidence of their guilt.
As the Court observed at the opening paragraph of this
decision, robbery attended by homicide or murder is
certainly a heinous offense, more so when in this case it is
committed in the highway. There is hardly any justification
for the court to share the leniency of the trial court by
imposing only the life imprisonment as penalty. The
circumstances of the commission of the offense do not
justify at all or require any killing or injury to be inflicted
on any of the victims. The appellant and his confederates
were all armed while the victims were not. They were at
their mercy. None of them attempted to fight back or to
resist. They gave all their valuables and personal
belongings. All they were pleading for was that their lives
be spared. It fell on deaf ears. It was a senseless killing for
no valid reason. The appellant and his confederates deserve
the supreme penalty of death and no less.
But as the Court said, this is not possible under the
Constitution.
Our peace and order situation today is very volatile. We
have experienced several attempted coups and we are
warned of other possible coups. Our peace and order
problem is a continuing one. The division in our society is
obvious and gaping. Our country is suffering from the
economic depression caused not only by the recent
calamities that visited us which were compounded by the
Gulf War. Thus, measures should be undertaken in order
to minimize if not entirely prevent serious
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94 SUPREME COURT REPORTS ANNOTATED

Cabello vs. Sandiganbayan
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crimes against life, chastity and of property resulting in the

wanton taking of human life. Our hope is for a lasting
peace and order in our society. A law must now be enacted
defining what are the heinous offenses punishable with the
death penalty. We should not tarry too long.
WHEREFORE, the appealed decision is AFFIRMED in
toto, with costs against the defendants-appellants.
SO ORDERED.

          Fernan (C.J.), Narvasa, Melencio-Herrera,

Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., In the result. I am against the death
penalty.

Decision affirmed.

Note.—Escape of accused from jail not bar to review of

judgment of conviction. ( People vs. Vallente, 144 SCRA
495.)

——o0o——

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