III.

OBJECT EVIDENCE

G.R. No. 108722 December 9, 1997

PEOPLE OF THE PHILIPPINES, v. ERLINDA CARREON y

PRECIA, 

FACTS:

At around 2:00 o'clock in the afternoon of July 30, 1990, a

passenger jeepney in which herein appellant was riding was flagged
down at a checkpoint manned by elements of the Philippine
Constabulary in Lamut, Ifugao province. In accordance with orders
from their headquarters, a search was made on the jeepney as well
as its passenger. The search was conducted by C2C Melchor Rivera
and C2C Samuel Bulahao, who was himself a passenger of the same
jeepney

At the time the search was being conducted, appellant and her
companion Armina de Monteverde were seated side by side
immediately behind the driver. The bags and personal belongings of
the passengers were individually searched by the constables. As a
result of said search, a small wrap of marijuana was found in
the handbag of appellant, while a larger bundle consisting of four
wraps was found in a jute sack located beside her, approximately
one foot away from her feet

As a result thereof, appellant and her companion were arrested and

their bags containing the marijuana were confiscated. The seized
items were all later turned over to the Provincial Command. The
accused were later taken to the PC Headquarters in Lagawe where
they were investigated and subsequently detained

Upon investigation by the forensic chemist assigned at the Crime

Laboratory at Camp Dangwa, the items seized from appellant were
confirmed to be marijuana

The appellant, together with her companion Armina de Monteverde,

were subsequently charged with violation of R.A. 6425, as
amended. On arraignment, both entered pleas of not guilty. After
trial on the merits, the trial court found herein appellant guilty as
charged while Armina de Monteverde was acquitted [on the ground
that the prosecution failed to convincingly prove the existence of
conspiracy between the two accused].

The appeal is not impressed with merit; hence we affirm the

conviction.

Appellant harps on the failure of the prosecution to present

as evidence her handbag from where the marijuana leaves
were taken and assails C2C Rivera's inconsistent testimony where
on one part he declared that the bag was turned over to the
Provincial Headquarters while on another portion he said that
appellant took it.

The argument is unpersuasive. Appellant seems to have lost sight of

the fact that her conviction was not premised on the presence or
absence of the bag, but on her apprehension in  flagrante
delicto, i.e., while in the possession of and transporting the
prohibited drugs. The non-presentation of the bag does not
debilitate the case for the prosecution. The alleged inconsistency in
the testimony of C2C Rivera, on the other hand, is inconsequential.
The testimony, we note, is unmistakably clear that the bag was
forwarded to the Provincial Headquarters from where appellant took
the same. In addition, minor inconsistencies do not discredit but
rather strengthen the testimony of a witness as they erase any
suspicion of a rehearsed testimony. The alleged insufficiency of
evidence, therefore, is more imagined than real.

Anent appellant's averment that the bundles of marijuana were

erroneously admitted in evidence as C2C Rivera failed to
immediately submit the marijuana leaves for laboratory examination
and, in fact, it was not he who actually brought the specimen to the
Crime Laboratory, suffice it to say that there is no rule requiring the
apprehending officer to personally deliver the prohibited drug to the
Crime Laboratory for testing. What is important is that the
transmittal of the specimen , as in this case, was not vitiated by
irregularity or fraud to cast doubt on the authenticity and source of
the subject specimen. Moreover, the subject marijuana leaves taken
from the appellant were duly identified by C2C Rivera, the
apprehending officer and Lt. Ong, the chemist assigned at Dangwa
Crime Laboratory where the specimen was brought for testing. In
the absence of evidence to indicate that these witnesses were
moved by improper motive, their testimony is entitled to full faith
and credit. 6 Besides, the presumption of regularity in the conduct of
their duties accorded by law 7 was not at all overthrown by contrary
evidence.

In an apparent attempt to discredit the prosecution's witnesses,

appellant invites the court's attention to an affidavit of desistance
purportedly executed by C2C Rivera and C2C Bulahao. We are not
persuaded as the said affidavit appears to be an afterthought. Apart
from the fact that retractions are exceedingly unreliable 8 and
looked upon with considerable disfavor by the courts 9, the trial
court rightly observed that the signatures appearing thereon were
forgeries. Thus:

First, comparison on the real evidence or autoptic proference

on record consisting of signatures of the affiant witness
Melchor E. Rivera, appearing in the joint affidavit in support of the
criminal complaint found on page 2 of the records, and the
signature of said witness marked as Exhibit "3-C" appearing in
Exhibit 3, Joint Affidavit of Desistance found on page 5 of the
records visibly show to the naked eye that the said two signatures
are entirely different, revealing the fact that the alleged
signature of the alleged affiant Melchor Rivera appearing in
the contested document Exhibit 3 and 3-A was written by a
person other than the true and real Melchor E. Rivera, the
witness for the prosecution in the instant case. In other words, the
signature marked as Exhibit "3-C" appearing in Exhibit "3" is a
forgery.

Second, it is quite surprising and lamentable to say the least, that

an L.L.B. graduate, like the defense witness Revelino Antonio,
professing himself to be a Notary public since 1979 up to the
present to have been allegedly satisfied as to his identity of the
alleged affiants by the mere presentation of military ID's of the
alleged affiants, for normally a Notary public should satisfy himself
as to the true identity of any person or party to a document that he
notarized. His allegation that he did not require them to present
their Residence Certificate because the alleged affiant told him that
they do not have, has to be taken with a grain of salt considering
that a person like the witness who is capable of prevaricating on a
vital and delicate matter by testifying that the witness Melchor
Rivera appeared before him as Notary Public, claiming to be
personally present when the alleged affiant affixed his signature n
Exhibit "3", when in truth and in fact, the said signature is found out
to be a forgery is not trustworthy, thereby rendering his entire
testimony unworthy of credence. A witness who is capable of
testifying falsely on a forged signature of a person is likewise
capable of committing falsehood on less important details.
Consequently, the principle of law "Falsus in, unos-falsus in omnibus
squarely jibes with the testimony of the defenses witness, Revelino
Antonio.

xxx xxx xxx

Thirdly, it would be unnatural for the alleged affiants in Exhibit "3"

to have voluntarily gone to the residence of Notary Public Evelino
Antonio and requested for the preparation and final execution of the
document, and later categorically denied to have executed any
when confronted by the Court during the preliminary investigation,
which only goes to show that it was fraudulently prepared, a fact
reinforced by the act of policeman Daniel Dominong who accordingly
to witness Revelino Antonio was the one who paid later the Notarial
fee for no apparent reason at all, a circumstance showing that there
was something fishy in the preparation of the document Exhibit "3",
which confirmed the version of the alleged affiants that they did not
in truth and in fact appear before any notary public.

More importantly, the veracity of the affidavit in question is

now academic since C2C Rivera himself appeared as a
witness for the prosecution; hence, reliance on his alleged
affidavit of desistance which he disowned is wanting in
merit.

Further, appellant's argument that her defense of denial and her

witnesses' testimony should be given credence deserve scant
consideration. Findings of fact of the trial court, especially its
assessment on the credibility of witnesses, are not disturbed on
appeal except when the trial court has overlooked, ignored, or
disregard some fact or circumstance of weight or significance which
if considered would have altered the result, 10 an instance absent in
this case. Besides, appellant's denial does not inspire belief. With
approval, we quote the following disquisition of the trial court:

In summation, the Court is of the considered view, that the defense

of denial interposed by the accused is flimsy and preposterous
which finding and conclusion of the Court finds its source and
strength from the very purpose advanced by accused Erlinda
Carreon in going to Hapao, Hungduan and later to O-ong, Banaue,
two places in the province of Ifugao noted and taken judicial notice
of by this Court to be great source of marijuana leaves. The accused
Erlina Carreon assisted earlier, a total stranger allegedly went to
Hapao, Hungduan, Ifugao a far flunged placed to see one Fidel, her
alleged companion who applied in going abroad. Such an allegation
is highly unbelievable for the accused does not even know and
cannot tell the Court the family name of that Fidel. All the more,
that belies her alleged purpose in going to those places is the fact
that it runs counter to the ordinary course of things or event for
normally, it would be this Fidel who would have taken interest in
going to Metro Manila and verify for himself the status of his alleged
application for abroad, if there was indeed any, not the accused
going to Hapao, Hungduan, Ifugao to look for Fidel whose
relationship to the accused was not even shown by evidence, as a
matter of fact, he does not even know the family name of this Fidel,
neither is there a showing that the accused is a legal recruiter of
any recruitment agency to create an apparent semblance of truth of
her alleged purpose in going to see the person Fidel.

Anent the purpose of the accused Erlinda Carreon in going to

O-ong, Banaue, Ifugao as elsewhere stated herein earlier, is highly
incredible. A scrutiny of the testimony of the testimony of accused
Erlinda Carreon would seem to suggest that these Liza Antonio and
Rosa Kindipan are intimately related to her. Assuming the
relationship to be such, it is strange that said persons would
address and course their letter to the accused at O-ong, Banaue,
Ifugao, a far away place from her alleged residence at Miguelin,
Sampaloc, Manila. At most, the logical and reasonable course of
action to have been taken by the said accused is for her to have
given her city address to them, which for purposes of convenience
and expediency, could be at the ideal place where to address and
course their alleged intended and expected letter from the two
informing the accused Carreon of a possible job placement or
employment abroad. All the moren (sic) nugatory to accused
Carreon's alleged purpose in going to Hapao and O-ong is the fact
that to a reasonable mind, the prudent course of action for her to
have done is to write these Rita Antonio and Rosa Kindipan and/or
go to the placement agency concerned, or to the Office of the POEA,
to verify the status of her alleged application for abroad, if any,
instead of going to two places.

The foregoing facts and circumstances indubitably show that the

version of the accused Erlinda Carreoin (sic) is self-serving being
the product or a concoction so flimsy to deserve the slightest
consideration of this Court, and cannot be given greater evidentiary
weight that the positive testimony of the witness C2C Melchor
Rivera. 11

Denial constitutes self-serving negative evidence which can not be

accorded greater evidentiary weight than the declarations of the
prosecution witnesses testifying on affirmative matters. 

Appellant in this case was convicted and meted the penalty of life
imprisonment and a fine of twenty thousand pesos under Rep. Act
No. 6425 for transporting more or less six (6) kilos of marijuana on
July 1990. Rep. Act No. 7659, which took effect on December 31,
1993, amended the provisions of Rep. Act No. 6425, increasing the
imposable penalty for the sale or transport of 750 grams or more of
marijuana to reclusion perpetua to death and a fine ranging from
five hundred thousand pesos to ten million pesos. Such penalty is
not favorable to the appellant as it carries the accessory penalties
provided under the Revised Penal Code and had a higher amount of
fine which in accordance with Article 22 of the same Code should
not be given retroactive effect. The Court, therefore, finds and so
holds that the penalty of life imprisonment and fine in the amount
of twenty thousand pesos correctly imposed by the trial court
should be retained.

WHEREFORE, the decision appealed from is hereby AFFIRMED in

toto.

SO ORDERED.

2. G.R. NO. 170300 : February 9, 2007]

BARTOLOME BALINGIT v. COMMISSION ON ELECTIONS and PABLO YAMAT

Pablo Yamat (Yamat) was declared the elected Punong Barangay of Nigui, Masantol,
Pampanga, in the last July 28, 2002 barangay elections, with Yamat obtaining 257
votes, and his opponent, Bartolome Balingit (Balingit), 250 votes.

Balingit filed an election protest with the Municipal Circuit Trial Court (MCTC) of
Macabebe-Masantol, Macabebe, Pampanga, alleging fraud in the counting and
preparation of the election returns. After revision of the ballots, the tally turned out
with Balingit still having 250 votes, while Yamat had 255 votes.

Thereafter, in a Decision, the MCTC declared Balingit as the duly

elected punong barangay,

The MCTC invalidated a total of 86 ballots cast in Precinct Nos. 56-A, 57-A, and 58-A,
and credited three separate votes cast in these three precincts, resulting in 172 votes
cast in Yamat's favor. On the other hand, the MCTC discredited in Balingit's favor one
vote cast in Precinct No. 57-A for having been a marked ballot, reducing the latter's
number of votes to 249.

Yamat appealed to the Commission on Elections (COMELEC).

On the other hand, Balingit filed a Motion for Execution Pending Appeal of the MCTC
Decision which was granted by the COMELEC Second Division

the COMELEC Second Division rendered its Resolution on Yamat's appeal, reversing the
MCTC Decision. The dispositive portion of the Resolution reads:

ACCORDINGLY, the Decision of the Municipal Trial Court of Macabebe-Masantol,

Macabebe, Pampanga, in Election Case No. 02(01) declaring appellee Bartlome [sic]
Balingit the duly elected Punong Barangay  of Barangay Nigui, Masantol, Pampanga,
during the 2002 Barangay Elections is hereby REVERSED.

The COMELEC Second Division validated 80 out of the 86 ballots previously invalidated
by the MCTC and counted them in favor of Yamat, while the other six ballots remained
invalid. The six ballots were as follows:
Thus, a total of 252 votes were considered in favor of Yamat, with Balingit still having
the same number of votes - 249.

COMELEC Commissioner Mehol K. Sadain, however, registered his dissent on the

Commission's findings with regard to six other ballots, namely: Exhibits B-3, B-6, B-
41, B-72, B-137, and B-138. These six ballots were among the 86 ballots previously
invalidated by the MCTC but were held to be valid by the Commission. It was
Commissioner Sadain's view that these ballots appear to have been written by one
person and should have been invalidated and not credited in favor of Yamat. Thus, only
a total of 246 votes should be credited in favor of Yamat, making Balingit, with 249
votes, the winner by a margin of three votes.4

Balingit filed a Motion for Reconsideration of the COMELEC Resolution with the
COMELEC En Banc but it was denied per Resolution

ACCORDINGLY, the Commission EN BANC hereby ORDERS:

1. Appellee BARTOLOME BALINGIT to VACATE the contested post which he assumed by

virtue of the Order of the Second Division dated January 26, 2005 granting execution
pending appeal, in favor of PABLO YAMAT and to CEASE and DESIST from performing
the functions attached to said office.

2. The Deputy Executive Director for operations of the Commission to furnish a copy
thereof to the Office of the President of the Philippines, the Secretary of the
Department of Interior and Local Government, and the Office of the Secretary of the
Sangguniang Bayan, Masantol, Pampanga.

Grave abuse of discretion means such capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be
grave, as when it is exercised arbitrarily or despotically by reason of passion or
personal hostility. Such abuse must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.

ISSUE;WNOT COMELEC CIMMITTED GAD when it merely limited itself to the six ballots
that Commissioner Sadain found to be invalid, that it did not consider his arguments on
the invalidity of all the contested ballots and "sweepingly" validated these ballots
without setting forth the basis, and that it erroneously justified the immediate
execution of the decision.

In this case, Balingit laments the manner in which the COMELEC, both the Second
Division and En Banc, resolved the issue on the contested ballots, arguing that it
committed grave abuse discretion when it merely limited itself to the six ballots that
Commissioner Sadain found to be invalid, that it did not consider his arguments on the
invalidity of all the contested ballots and "sweepingly" validated these ballots without
setting forth the basis, and that it erroneously justified the immediate execution of the
decision..
The appreciation of the contested ballots and election documents involves a question of
fact best left to the determination of the COMELEC, a specialized agency tasked with
the supervision of elections all over the country, as it is the constitutional commission
vested with the exclusive original jurisdiction over election contests involving regional,
provincial and city officials, as well as appellate jurisdiction over election protests
involving elective municipal and barangay officials. In the absence of grave abuse of
discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions,
rulings, and decisions rendered by the said Commission on matters falling within its
competence shall not be interfered with by this Court.8

The MCTC originally found a total of 86 ballots cast in favor of Yamat in

Precinct Nos. 56-A, 57-A, and 58-A as invalid for having been written by only
one person. Both the COMELEC Second Division and En Banc, however,
nullified the MCTC's findings on 80 of these ballots and found them to be valid.

It is fallacious for Balingit to argue that the COMELEC "sweepingly" validated the
contested ballots and did not take into consideration his objections thereto, and that
the COMELEC did not clearly set out the basis for its findings, as the assailed Resolution
dated April 11, 2005 shows otherwise. The COMELEC's Second Division, in fact,
physically examined each set or pair of contested ballots and accordingly made its
corresponding factual findings, 

And, contrary to Balingit's allegations in the petition, the COMELEC En

Banc  conducted its own examination of the ballots and did not limit itself only
to the six ballots that were validated, subject matter of the dissent of
Commissioner Sadain, thus:

The Commission En Banc could have conveniently upheld the dispositions of the
Division and declared the same as appropriate finding of facts. However, considering
that Presiding Commisioner Mehol K. Sadain dissented therefrom and manifested his
different appreciation of the ballots, the Commission En Banc conducted its own
examination of the ballots to arrive at a judicious determination.

Hereunder are our findings:

Precinct No. 56A

The Commission En Banc AFFIRMS the rulings of the Second Division declaring

as INVALID only the ballots marked as Exhs. B44 and B45, B5 and B7. The
similarities in the handwritings in these ballots were glaringly similar that there is
sufficient reason to believe that these two ballots were prepared by only one person.

The other ballots alleged as prepared in sets or groups by only one person must be
considered VALID. The Division correctly cited in the Resolution Silverio v. Castro as the
basis of its rulings. It is therein taught:

In order to reach the conclusion that two writings are by the same hand there must be
not only be present class characteristics but also individual characteristics or "dents and
scratches" in sufficient quantity to exclude the theory of accidental coincidence; to
reach the conclusion that writings are by different hands, we may find numerous
likenesses in class characteristics but divergences in individual characteristics, or we
may find divergences in both, but the divergence must be something more than mere
superficial differences.

"x x x the rule is simple - whatever features two specimen handwriting may have in
common, they cannot be considered to be of common authorship if they display but a
single dissimilarity in any feature which is fundamental to the structure of the
handwriting and whose presence is not capable of reasonable explanation.

Putting it simply, where the writings in said ballots were strikingly alike, these
ballots must be ruled to be of single authorship and must be rejected.

The Second Division is right in its observation that the handwritings on the questioned
ballots were glaringly different and no identical characteristics are impressive. Indeed,
it could justifiably be concluded that the cited ballots were each prepared by the
individual voters and not in sets or pairs by only one person.

Whatever perceived similarities in the handwritings were but pictorial effects and
general resemblances which were insufficient to warrant a finding of single authorship.

Precinct No. 57A

We AFFIRM the Division's rulings that the ballots questioned as having been written in
sets or pairs by one person are VALID because the strokes, dents, and slants were
distinctly different and it could not be justifiably concluded that only one hand prepared
the ballots.

Precinct No. 58A

We agree with the Division that only the ballots marked as Exh. Nos. B135 and
B136 are INVALID because of the obvious similarities in the strokes, slants and dents
of the handwriting on the ballots.

All the other ballots contested on the allegation that they were written in sets or pairs
by only one person did not show remarkable similarities which could sufficiently warrant
a finding that they were written by only one hand.

By the En Banc's own computation, the total number of votes to be credited to

Appellant are as follows:

There being no issue as regards the disposition on the ballots of Balingit, The
Commission En Banc left the findings of the Trial Court and the Second Division that
Bartolome Balingit obtained a total of 249 votes, undisturbed.10

Based on its own physical assessment of the contested ballots, the COMELEC En
Banc agreed with the Division's conclusions that the invalidity of Exhibits Nos. B-44, B-
45, B-5, B-7, B-135, and B-136 should be sustained, while the other ballots shall
remain valid.11
Balingit also appears to be in awe of the MCTC's disquisition on the invalidity of these
ballots, quoting the MCTC's use of the term "autoptic proference" in maintaining that its
rulings on the objections and claims of the parties is the valid ruling.

Autoptic proference, in legal parlance, simply means a tribunal's self-perception, or

autopsy, of the thing itself. The COMELEC may not have used such a high-sounding
term, nevertheless, it does not follow that it did not examine the ballots or that its
findings were flawed.

The Court cannot imagine how Balingit can argue as he did when the foregoing findings
clearly show that all the 86 contested ballots were physically examined by the
COMELEC, and the basis for upholding the validity of 80 of these ballots was sufficiently
established. The Court also cannot find any salient distinction between the MCTC's and
the COMELEC's treatment of these ballots such that the MCTC's findings should
outweigh the COMELEC's. Both tribunals physically examined the contested
ballots and made their respective findings thereon. The divergence lies in the
physical and actual appreciation and interpretation of the perceived defects in
the ballots, and it need not be stressed that given that the COMELEC is the
specialized agency tasked with the supervision of elections all over the
country,14 which the framers of the Constitution intended to place on a level
higher than statutory administrative organs, its factual finding is binding on
the Court.

Balingit wants the Court to consider in his favor the six ballots that Commissioner
Sadain opined to be invalid and should not be credited to Yamat, thus giving him an
edge of three votes, i.e. 249 as against Yamat's 246, and making him the victor. Suffice
it to say that the COMELEC adequately explained the reason for holding these
six ballots as valid,16 and absent any evidence to the contrary, the appreciation
of these ballots by the COMELEC, acting as a collegial body, should be upheld.
±Ï‰  lιbrαrÿ

WHEREFORE, the petition is DISMISSED. The proclamation of Pablo Yamat

as Punong Barangay of Nigui, Masantol, Pampanga is UPHELD; and the order for
petitioner Bartolome Balingit to vacate, cease and desist from performing the functions
attached to said office per COMELEC En Banc  Resolution dated November 12, 2005
is REITERATED.

Costs against petitioner. SO ORDERED.

3. G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS
SANTOS, and JOSELITO TAMAYO, accused-appellants.

The case before us occurred at a time of great political polarization in the aftermath of the 1986
EDSA Revolution. This was the time when the newly-installed government of President Corazon C.
Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between
the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of
Stephen Salcedo, a known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons
identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-
47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-
47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No.
86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito
Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also
filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega
as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the
accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented
twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the
police officers who were at the Luneta at the time of the incident. In support of their testimonies, the
prosecution likewise presented documentary evidence consisting of newspaper accounts of the
incident and various photographs taken during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by
the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was
denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and
Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an
impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula
Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for
their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to
disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned
towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added
"Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to
disperse them. The loyalists scampered away but some of them fought back and threw stones at the
police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the
Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos,
jogging around the fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging
around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si
Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie
Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A
commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in
yellow, the color of the "Coryistas." Renato took off his yellow shirt.  He then saw a man wearing a
2

yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man
in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught
Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but
they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts
of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid.
Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers
pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a
loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and
Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind
Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed
Salcedo twice on the head and kicked him even as he was already fallen.  Salcedo tried to stand but
3

accused Joel Tan boxed him on the left side of his head and ear.  Accused Nilo Pacadar punched
4

Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"  Sumilang tried to pacify Pacadar but the
5

latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked
him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the
head, and when he tried to stand, Sison repeatedly boxed him.  Sumilang saw accused Gerry Neri
6

approach the victim but did not notice what he did.

7

Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He
sat on some cement steps  and then tried to flee towards Roxas boulevard to the sanctuary of the
8

Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the
process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He
cried: "Pulis, pulis. Wala bang pulis?"
9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer,
brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to
the Philippine General Hospital where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions,

lacerated wounds and skull fractures as revealed in the following post-mortem findings:

The mauling of Salcedo was witnessed by bystanders and several press people, both local and
foreign. The press took pictures and a video of the event which became front-page news the
following day, capturing national and international attention. This prompted President Aquino to
order the Capital Regional Command and the Western Police District to investigate the incident. A
reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then
Police Chief, for persons who could give information leading to the arrest of the killers.  Several
11

persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the
basis of their identification, several persons, including the accused, were apprehended and
investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and
offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution  because on July 27, 1986, he was in his house in
12

Quezon City.  Gerry Neri claimed that he was at the Luneta Theater at the time of the
13

incident.   Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta
14

waiting for some pictures to be developed at that time.   He claimed to be afflicted with hernia
15

impairing his mobility; he cannot run normally nor do things forcefully.   Richard de los Santos
16

admits he was at the Luneta at the time of the mauling but denies hitting Salcedo.   He said that he
17

merely watched the mauling which explains why his face appeared in some of the
photographs.   Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a
18

member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According
to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the
incident.   His face was in the pictures because he shouted to the maulers to stop hitting
19
Salcedo.   Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The
20

maulers however ignored him.  21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in
their defense.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel
Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified
by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an
accomplice. The court, however, found that the prosecution failed to prove the guilt of the other
accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and
Benjamin Nuega. The dispositive portion of the decision reads as follows:

WHEREFORE, judgement is hereby rendered in the aforementioned cases as

follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the
Court finds that the Prosecution failed to prove the guilt of the two (2) Accused
beyond reasonable doubt for the crime charged and hereby acquits them of said
charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court
finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond
reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the
Revised Penal Code, and, there being no other mitigating or aggravating
circumstances, hereby imposes on each of them an indeterminate penalty of from
FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS,
of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion
Temporal, as minimum, to TWENTY (20) YEARS of Reclusion Temporal, as
Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court
finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal
for the crime of Murder defined in Article 248 of the Revised Penal Code and, there
being no other extenuating circumstances, the Court hereby imposes on him an
indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds
the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder"
defined in Article 248 of the Revised Penal Code and hereby imposes on him an
indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal, as Maximum;

5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court
finds that the Prosecution failed to prove the guilt of the Accused for the crime
charged beyond reasonable doubt and hereby acquits him of said charge;
 6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court
finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable
doubt for the crime charged and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the
said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder
under Article 18 in relation to Article 248 of the Revised Penal Code and hereby
imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4)
MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito
Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the
heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the
amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the
costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard
de los Santos and Joselito Tamayo had been under detention during the pendency of
these cases shall be credited to them provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry
Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being
detained for another cause or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot and
academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito
Tamayo is denied for lack of merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are
hereby cancelled. 22

On appeal, the Court of Appeals   on December 28, 1992, modified the decision of the trial court by
23

acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito
Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of
superior strength, but convicted Joselito Tamayo of homicide because the information against him
did not allege the said qualifying circumstance. The dispositive portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as

follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y

Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable
doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion
Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond

reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, an indeterminate
 penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20)
YEARS of reclusion temporal as Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to

the crime of Murder.

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the

instant consolidated cases, the said cases are now hereby certified to the Honorable
Supreme Court for review.  24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as
Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us
for automatic review of the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED

THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT
THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME
FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF
STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING

CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO
SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE

ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY
OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE
ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE
DECEASED.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED
IN A TUMULTUOUS AFFRAY.  25
In their additional brief, appellants contend that:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A

CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-
SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE
TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT,
ALL CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D",

"G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT
PROPERLY IDENTIFIED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING

THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING
ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN
TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL
GROUNDS SURROUNDING THE INCIDENT.  26

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the
two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are
unreliable, doubtful and do not deserve any credence. According to them, the testimonies of
these two witnesses are suspect because they surfaced only after a reward was announced
by General Lim. Renato Banculo even submitted three sworn statements to the police
geared at providing a new or improved version of the incident. On the witness stand, he
mistakenly identified a detention prisoner in another case as accused Rolando
Fernandez.   Ranulfo Sumilang was evasive and unresponsive prompting the trial court to
27

reprimand him several times.  28

There is no proof that Banculo or Sumilang testified because of the reward announced by General
Lim, much less that both or either of them ever received such reward from the government. On the
contrary, the evidence shows that Sumilang reported the incident to the police and submitted his
sworn statement immediately two hours after the mauling, even before announcement of any
reward.   He informed the police that he would cooperate with them and identify Salcedo's assailants
29

if he saw them again.  30

The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended
during the investigation of Salcedo's death.  31
The records show that Sumilang was admonished several times by the trial court on the witness
stand for being argumentative and evasive.   This is not enough reason to reject Sumilang's
32

testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole,
his testimony was correctly given credence by the trial court despite his evasiveness at some
instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the
credence of witnesses considering their visual view of the demeanor of witnesses when on the
witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a
witness' testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely
untrustworthy witness.   It does not make his whole testimony a falsity. An honest mistake is not
33

inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with
imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as
to some facts but disbelieved with respect to the others.  34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each
other on all important and relevant details of the principal occurrence. Their positive identification of
all petitioners jibe with each other and their narration of the events are supported by the medical and
documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the
victim had various wounds on his body which could have been inflicted by pressure from more than
one hard object.   The contusions and abrasions found could have been caused by punches, kicks
35

and blows from rough stones.   The fatal injury of intracranial hemorrhage was a result of fractures in
36

Salcedo's skull which may have been caused by contact with a hard and blunt object such as
fistblows, kicks and a blunt wooden instrument.  37

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that
Salcedo was pummeled by his assailants with stones in their hands.  38

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and
"P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-
13."   Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-
39

operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly
identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents
thereof.   Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified
40

to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit,
they should have placed Pat. Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the
Luneta — starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard,   — as he was being chased by his assailants   and as he sat pleading with his
41 42

assailants.   Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in
43

local newspapers and magazines such as the Philippine Star,   Mr. and Ms. Magazine,   Philippine
44 45

Daily Inquirer,   and the Malaya.   The admissibility of these photographs is being questioned by
46 47

appellants for lack of proper identification by the person or persons who took the same.

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by
the photographer as to its production and testified as to the circumstances under which they were
produced.   The value of this kind of evidence lies in its being a correct representation or
48

reproduction of the original,   and its admissibility is determined by its accuracy in portraying the
49

scene at the time of the crime.   The photographer, however, is not the only witness who can identify
50
the pictures he has taken.   The correctness of the photograph as a faithful representation of the
51

object portrayed can be proved prima facie, either by the testimony of the person who made it or by
other competent witnesses, after which the court can admit it subject to impeachment as to its
accuracy.   Photographs, therefore, can be identified by the photographer or by any other competent
52

witness who can testify to its exactness and accuracy.  53

This court notes that when the prosecution offered the photographs as part of its evidence,
appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper
identification.   However, when the accused presented their evidence, Atty. Winlove Dumayas,
54

counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that
his clients were not in any of the pictures and therefore could not have participated in the mauling of
the victim.   The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri
55

as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused
per understanding with their respective counsels, including Atty. Lazaro, who were absent. At
subsequent hearings, the prosecution used the photographs to cross-examine all the accused who
took the witness stand.   No objection was made by counsel for any of the accused, not until Atty.
56

Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility.  57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the
person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an
admission of the exactness and accuracy thereof. That the photographs are faithful representations
of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel
Tan identified themselves therein and gave reasons for their presence thereat.  58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in
various belligerent poses lunging or hovering behind or over the victim.   Appellant Romeo Sison
59

appears only once and he, although afflicted with hernia is shown merely running after the
victim.  Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two
60

appellants in the photographs does not exculpate them. The photographs did not capture the entire
sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison
and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo Appellants' denials and alibis cannot overcome their eyeball identification.
61

Appellants claim that the lower courts erred in finding the existence of conspiracy among the
principal accused and in convicting them of murder qualified by abuse of superior strength, not death
in tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

Art. 251. Death caused in a tumultuous affray. — When, while several persons, not
composing groups organized for the common purpose of assaulting and attacking
each other reciprocally, quarrel and assault each other in a confused and tumultuous
manner, and in the course of the affray someone is killed, and it cannot be
ascertained who actually killed the deceased, but the person or persons who inflicted
serious physical injuries can be identified, such person or persons shall be punished
by prison mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased,
the penalty of prision correccional in its medium and maximum periods shall be
imposed upon all those who shall have used violence upon the person of the victim.
 For this article to apply, it must be established that: (1) there be several persons; (2) that
they did not compose groups organized for the common purpose of assaulting and attacking
each other reciprocally; (3) these several persons quarrelled and assaulted one another in a
confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it
cannot be ascertained who actually killed the deceased; and (6) that the person or persons
who inflicted serious physical injuries or who used violence can be identified. 62

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in
a confused and tumultuous affray, in the course of which some person is killed or wounded and the
author thereof cannot be ascertained. 63

The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one
individual. Confusion may have occurred because of the police dispersal of the rallyists, but this
confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later
after said dispersal that one distinct group identified as loyalists picked on one defenseless individual
and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was
no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of
the incident. 64

As the lower courts found, the victim's assailants were numerous by as much as fifty in number  and65

were armed with stones with which they hit the victim. They took advantage of their superior strength
and excessive force and frustrated any attempt by Salcedo to escape and free himself. They
followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him
mercilessly even when he was already fallen on the ground. There was a time when Salcedo was
able to get up, prop himself against the pavement and wipe off the blood from his face. But his
attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find
means to defend himself. Sumilang tried to save him from his assailants but they continued beating
him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he
finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless
victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof
that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety
from any defense the victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because
he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the
appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run
away from them but he, unfortunately, was overtaken by them. The essence of treachery is the
sudden and unexpected attack without the slightest provocation on the part of the person being
attacked. 66

The qualifying circumstance of evident premeditation was alleged in the information against Joselito
Tamayo. Evident premeditation cannot be appreciated in this case because the attack against
Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.

We find however the existence of a conspiracy among appellants. At the time they were committing
the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring
about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among
the conspirators inflicted the fatal wound is not required to sustain a conviction.   Each of the
67

conspirators is liable for all acts of the others regardless of the intent and character of their
participation, because the act of one is the act of all. 
68
The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral
and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986,
Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in
Saudi Arabia.   The reckless disregard for such a young person's life and the anguish wrought on his
69

widow and three small children,   warrant an increase in moral damages from P30,000.00 to
70

P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los
Santos are found GUILTY beyond reasonable doubt of Murder without any
aggravating or mitigating circumstance and are each hereby sentenced to suffer the
penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of

the crime of Homicide with the generic aggravating circumstance of abuse of
superior strength and, as a consequence, he is sentenced to an indeterminate
penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20)
YEARS of reclusion temporal as maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of
Stephen Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.