Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G. R. No. L-57519 September 13, 1988

DELFIN ORODIO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Benigno P. Pulmano for petitioner.

The Solicitor General for respondents.

SARMIENTO, J.:

The petitioner, Delfin Orodio, together with the brothers Angel Obedoza and Manuel Obedoza, were convicted of the crime of murder by the
then Court of First Instance of La Union (Branch I), based on the Information 1 quoted hereunder:

That on or about the 18th day of June, 1975, in the Municipality of Santol, Province
of La Union, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a firearm, conspiring and
confederating with each other and mutually helping one another, without justifiable
cause, and with deliberate intent to kill, did then and there, upon having stood in
ambush, willfully, unlawfully and feloniously, by means of treachery and with evident
premeditation, attack, shot and hit by means of a firearm MARCELINO TURALBA,
inflicting upon him gunshot wounds in several parts of his body, perforating several
internal organs and tissues which directly caused hemorrhage, shock, secondary to
wounds at the heart and lungs resulting to the death of said victim soon thereafter to
the prejudice and damage of his heirs.

CONTRARY to Article 248 of the Revised Penal Code as amended.

Unsatisfied with the Judgment of the trial court,   all the accused elevated their case to the Court of
2

Appeals. However, during the pendency of their appeal, Manuel and Angel Obedoza withdrew it,
thereby leaving only the appeal of the petitioner to take its due course.

Except for a modification of the penalty, the respondent Court of Appeals affirmed the convinction of
the petitioner. Now before us is the appeal, by way of a petition for review on certiorari, of the
assailed decision, the dispositive portion of which reads as follows:

In view of all the foregoing, we found the guilt of the appellant of the crime charged
proven beyond reasonable doubt. We also agree with the Solicitor General that,
there being no modifying circumstances present in the commission of the crime, the
imposable penalty should be "reclusion perpetua" which is the medium period of the
penalty imposed for murder (Art. 248, R.P.C.). The appellant should also be entitled
to four-fifths of his preventive detention, there being no proof that he had agreed to
abide by the same disciplinary rules imposed upon convicted prisoners.
 WHEREFORE, with the modification above indicated, the decision appealed from is
hereby affirmed. With costs against the appellant.

SO ORDERED.  3

The pertinent facts supported by the evidence are summarized as follows:

At about six o'clock in the morning of June 18,1975, at Corooy, Santol, La Union, Marceliano Turalba
was on his way to the fields carrying a plow on his shoulder, followed by his daughter, Florie, and his
wife, Herminigilda. (Florie would take a bath by the well. Herminigilda was under instruction of her
husband to follow him always wherever he would go because someone was threatening his life.   ) 4

While they were walking along a trail, Herminigilda saw Angel Obedoza, about ten meters away,
pointing a long firearm at her husband, which prompted her to shout "Angel is going to shoot
you."   But it was all for naught as the shot was fired nonetheless hitting her husband who instantly
5

slumped to the ground.  As Florie turned her head toward the sound of gunshot, she saw Angel
6

Obedoza holding a long firearm in the company of his older brother, Manuel, and Delfin
Orodio.   The presence of Angel's two companions was also noticed by Herminigilda.   Then, the
7 8

three (Manuel, Angel, and Delfin) fled in different directions.   Moments later, after severely wounded
9

Marceliano was carried back to his home, he died.   In the autopsy examination conducted by Dr.
10

Ubungen right inside the house of the victim, six rounded pellets were extracted from his
body.   apparently coming from a shotgun cartridge.
11

The petitioner now argues that:

1. The Court of Appeals erred in convicting him based solely on the alleged
existence of conspiracy among the accused cused Obedoza brothers and him,
simply because of his passive presence at or near the scene of the crime as well as
the alleged moral support provided and moral ascendancy exerted by him over the
gun wielder into committing the crime.

2. The Court of Appeals erred in not appreciating in his favor the mitigating
circumstance of voluntary surrender, assuming the correctness of its decision.  12

The respondent Court of Appeals passed sub-silencio on the first submission of the petitioner that
the conspiracy found by the trial court is not supported by proof and law, but only by presumptions or
conjectures.   Obviously, the respondent court has adopted the theory of implied conspiracy upheld
13

by the trial court, otherwise the decision of the respondent court would not have any factual or legal
basis as to the petitioner, there being no proof of his participation in the shooting aside from his
presence near the scene of the crime and running away therefrom, disputed to be sure, but findings
nonetheless.

On the other hand, the trial court dealt with the issue of conspiracy head on, declaring its existence
by and among the Obedoza brothers and the petitioner. Be that as it may, in convicting the three of
them, the trial court correctly re-stated the prevailing doctrine that active or direct participation in the
actual commission of the crime is not necessary to convict an accused as a co-conspirator.
Citing People vs. Cortez,   the trial court declared, likewise accurately, that it is enough that the
14

accused performs an overt act in furtherance of the conspiracy either by actively participating in the
actual commission of the crime, or by lending moral assistance to his co-conspirators by being
present at the scene of the crime, or by exerting moral ascendancy over the rest of the co-
conspirators as to move them to executing the conspiracy. Consequently, the trial court said that
while only Angel fired at the victim with a shotgun, resulting to his death, the hard fact of the matter
remains that Manuel and the petitioner were actually present and controlled the commission of the
crime. Manuel and the petitioner were three (3) meters apart from each other and only about ten (10)
meters away from Angel when the latter fired at Marceliano. The presence of Manuel and the
petitioner at the scene of the crime with Angel, the gunman, was not explained, impugned, or
disputed by the defense except by their denial of the charge together with their defense of alibi,
which the trial court rejected. It held that there is no good and valid reason why Manuel and the
petitioner were present with Angel at the scene of the crime on that very early morning of June 18,
1975, except, the judge surmised, to lend moral support to their youngest co-conspirator who, we
reiterate, alone did the shooting. Conspiracy is substantiated, according to the trial court, by the fact
that Manuel has that commanding power of moral ascendancy over his four years his junior. On the
other hand, as viewed by the trial court, Delfin appears to be not only a father to his co-accused
Angel in point of age, being about 40 years old at the time of the incident, who could have easily
asserted his moral ascendancy over the 22-year old Angel, but also possessed of the dominating
and dangerous power over his co-conspirator for, it is claimed, the petitioner is a professional cold-
blooded killer previously thrice convicted of homicide. Prescinding from these dubious findings and
non-sequitur conclusions, the trial court ruled that conspiracy was proven beyond reasonable doubt
and all the three accused were convicted of murder.

We disagree.

As above adverted to, in affirming the Judgment of the trial court, the respondent court did not
squarely pass upon the issue of conspiracy. The only circumstances that seem to have persuaded
the respondent court in affirming that a conspiracy existed are the fact of petitioner's presence at or
near the scene where the late Marceliano Turalba was shot by Angel Obedoza and the fact of
simultaneous flight of the petitioner and the Obedoza brothers from the scene of the crime. Nowhere
in the respondent court's decision do we find mention of any other act of the petitioner that may be
construed as an overt act in the furtherance of a conspiracy. Absent such an evidentiary basis, we
can not accept the finding of implied conspiracy. The conclusion of the trial court is based on
subjective considerations, not to positive and convincing evidence.

A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it.   It is fundamental for conspiracy to exist that there must be unity of
15

purpose and unity in the execution of the unlawful objective. 16

Direct proof is not essential to establish conspiracy.   Since by its nature, conspiracy is planned in
17

utmost secrecy it can rarely be proved by direct evidence.   Consequently, the presence of the
18

concurrence of minds which is involved in conspiracy, may be inferred from proof of facts and
circumstances which, taken together apparently indicate that they are merely parts of some
complete whole. If it is prove that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of personal association
and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among
them to concert means is proved.   That would be termed an implied conspiracy.
19

Nevertheless, mere knowledge, acquiescence, or approval of the act, without cooperation or

agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must
be intentional participation in the transaction with a view to the furtherance of the common design
and purpose.   Conspiracy must be established, not by conjectures, but by positive and conclusive
20

evidence.   In fact, the same degree of proof necessary to establish the crime is required to support
21

a finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt.  22

In the case at bar, even if the finding as regards the presence of the petitioner at or near the scene
where the late Marceliano Turalba was shot by Angel were accurate, the petitioner contends that
mere passive presence at the scene of the crime does not of itself constitute sufficient basis for
concluding that he was in conspiracy with Angel Obedoza who was the actual perpetrator of the
crime.

We find meritorious the submission of the petitioner. The presence of the petitioner at the scene
when the crime was perpetrated is not by itself indicative of the existence of conspiracy between him
and Angel or with Manuel, or, for that matter, by and among the three of them. The petitioner must
be shown to have had guilty participation in the criminal design entertained by the slayer, Angel.   In 23

a long line of decisions, this Court has held that mere presence at the scene of the crime, without
more, does not imply conspiracy.  24

The evidence for the prosecution does not reveal any proof aside from his mere passive presence at
the scene of the crime, upon which to base the trial court's conclusion that the petitioner provided
moral support to and exerted moral ascendancy over his so-called co-conspirators as to move them
to execute the putative conspiracy.

The trial court's finding, affirmed by the respondent court, that the petitioner exerted moral
ascendancy over the gun-wielder, Angel Obedoza, based on the fact that the former could have
been a father, in point of age, of the latter, and even adding the fact that the petitioner is a convicted
killer and a recidivist, is purely speculative and devoid of any legal basis. It is true that the petitioner
is a recidivist. He candidly admitted, in the course of his testimony, that he had just been convicted
of triple homicide and had already began to serve his sentence.   It would indeed be proper for us to
25

appreciate recidivism as a generic aggravating circumstance should there be a conviction in this

case. But, from our view of the evidence, it has not been convincingly established that the petitioner
cooperated in the commission of the offense, either morally, through advice, encouragement, or
agreement, or materially, through external acts indicating a manifest intent of supplying aid in the
perpetration of the crime in an efficacious way.   The petitioner did not take any active part in the
26

perpetration of the offense nor was he heard to have uttered anything. Such being the case, his
mere passive and mute presence at the scene of the crime does not make him either a co-principal
or accomplice in the commission of the offense,  no matter how criminal his mind might be, or, no
27

matter how many convictions of murder he might have.

Furthermore, as correctly stated by the petitioner, the trial court's declaration in its Judgment that
moral ascendancy was exerted by the petitioner over the gun-wielder, Angel Obedoza, is founded on
a wrong premise, that is, the existence of a conspiracy where the petitioner is a co-
conspirator.   Conspiracy presupposes the presence of a preconceived plan or agreement. In order
28

to establish such a plan or agreement, it is not enough that the persons supposedly engaged or
connected with the same be present when the crime was perpetrated. There must be established a
logical relationship between the commission of the crime and the supposed conspirators, evidencing
a clear and more intimate connection between and among the latter, such as by their overt acts
committed in pursuance of a common design.  29

The fact that the petitioner fled from the scene after the shooting does not suffice to prove the
conspiracy there being no evidence to convince us that his running away from the scene had been
interwoven with a pre-conceived plan or agreement to kill the victim. Fear of implication in the crime
could have been a plausible reason for the petitioner's act of fleeing.

At the risk of being repetitious, there is a total absence of evidence to show any previous plan or
agreement between the Obedoza brothers and the petitioner to kill the victim. Equally wanting is
proof that the acts of the petitioner stemmed from a prior plan or design to kill the victim. Criminal
conspiracy must be established by positive evidence, and conviction must be founded on facts, not
on mere inferences and presumptions.  30
By and large, the evidence on record fails to satisfy the requirement of moral certainty needed to
hold the petitioner guilty of the charge as a co-conspirator. For it is only by proof beyond reasonable
doubt, which requires moral certainty-a certainty that convinces and satisfies the reason and
conscience of those who are to act upon it may the presumption of innocence be overcome.  31

WHEREFORE, the decision appealed from is hereby REVERSED and the petitioner, Delfin Orodio y
Valdez, is ACQUITTED for lack of proof beyond reasonable doubt. No costs.

SO ORDERED.

Paras and Padilla, JJ., concur.

Separate Opinions

 
MELENCIO-HERRERA, J., concurring:

I concur in the absence of adequate evidence to establish moral ascendancy by petitioner over the
gun-wielder.

Regalado, J., took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the absence of adequate evidence to establish moral ascendancy by petitioner over the
gun-wielder.

Regalado, J., took no part.

Footnotes

1 Original Record, 36.

2 Rendered by Judge Angel A. Daquigan, Rollo, p. 41-67.

3 Busran Mama D., J.; Villasor, Guillermo P. and Melo, Jose A.R., JJ.

4 T.s.n., session of May 19, 1976, 3-4; T.s.n., session of March 16, 1976, 5-7.
5 Id., session of May 19, 1976, 5, 7.

6 Id., T.s.n., session of March 16, 1976, 8.

7 T.s.n., session of March 16, 1976, 8.

8 T.s.n., session of May 19, 1976, 8.

9 Id.; T.s.n., session of March 16, 1976, 12.

10 Id., 14; Id., 9.

11 T.s.n., session of August 12, 1976, 5-9.

12 Petition for Review, 5; Rollo, 23.

13 Brief For Accused-Appellant Delfin Orodio in the Court of Appeals, CA Rollo,

58(20).

14 L-31106, May 31, 1974.

15 Art. 8, Revised Penal Code; People vs. Rojas, et al., Nos. L-46960-62, January 8,
1987.

16 People vs. Bautista, et al., No. L-31900, August 6, 1979.

17 People vs. Saavedra, No. L-48738, May 18,1987; Vizconde vs. Intermediate
Appellate Court, No. 74231, April 10, 1987; People vs. Tala, No. 69153-54, January
30, 1986; People vs. Ebora, et al., No. 31013, February 10, 1986; People vs.
Villanueva, No. L-32274, April 2, 1984; People vs. Pueblas, No. L-32859, February
24, 1984; People vs. Villason, No, L-38208, July 30, 1982.

18 People vs. Peralta, et al., L-19069, October 29, 1968.

19 People vs. Peralta, supra, citing People vs. Carbonel, 48 Phil. 868 (1926).

20 People vs. Izon, et al., 104 Phil. 690 (1958).

21 People vs. Palon, No. L-33271, February 20, 1984; People vs. Martinez, No. L-
33907, January 31, 1984.

22 People vs. Saavedra, supra; People vs. Viray, No. 72892, January 7, 1987;

Moniza, Jr. vs. People, No. 72719, September 18,1986; People vs. Palon, supra;
People vs. Benavidez, No.
L-59985, January 20, 1984; People vs. Drilon, Jr., No. L-33431, June 28, 1983;
People vs. Sosing, No. L-42791, January 30,1982; People vs. Custodia, No. L-
30463, October 30, 1972.

23 People vs. Pimentel, et al., No. L-47915, January 7, 1987; People vs.
Drilon, supra.
24 People vs. Saavedra, supra; People vs. Pimentel, supra; People vs. Sabilano, No.
L- 32866-7, September 21, 1984; People vs. Madera, No. L-35133, May 31, 1974;
People vs. Wong, No.
L-22130-32, April 25, 1968; People vs. Tividad, No. L-21469, June 30, 1967; People
vs. Izon, supra; People vs. Ibañez, 77 Phil. 664 (1946).

25 T.s.n., session of March 10, 1977, 3-4.

26 People vs. Custodia supra.

27 Id.

28 Petition for Review, 12; Rollo, 30.

29 People vs. Custodia supra.

30 People vs. Marquez, No. L-31403, December 14, 1981.

31 People vs. Go Bio, Jr., No. 68575, June 6, 1986; People vs. Custodia, supra.