ManilaEN
BANC
PEOPLE
OF THE PHILIPPINES,
Plaintiff-Appellee,
G. R. Nos. L-51304-05
June 28, 1983
-versus-
MARTIN
MANDOLADO
and JULIAN ORTILLANO,
Defendants-Appellants.
D
E C I S I O N
GUERRERO, J.:
The judgment of
conviction rendered by the Court
of First Instance of Cotabato, Branch II, Cotabato City dated June 28,
1979 sentencing the accused Martin Mandolado to the supreme penalty of
death in each case and the accused Julian Ortillano to imprisonment of
six [6] years of prision correccional as minimum to seventeen [17]
years
of prision mayor as maximum, being merely an accessory, is before Us
for
mandatory review.
Under two [2]
separate criminal informations dated
January 5, 1978 filed by First Assistant Provincial Fiscal Ismael G.
Bagundang,
the two accused-appellants, Martin Mandolado and Julian Ortillano,
draftees
assigned with the Alpha Company, 3rd Infantry Battalion, Second
Infantry
Division, Philippine Army with station at Pikit, North Cotabato,
together
with Anacleto Simon and Conrado Erinada, trainees attached to the
Headquarters
and Headquarters Company, 3rd Infantry Battalion, 2nd Infantry
Division,
Philippine Army, stationed at the Army Detachment along Simuay
Junction,
Simuay, Sultan Kudarat, Maguindanao, were accused of murder for the
death
of the victims, Herminigildo Tenorio and his driver Nolasco Mendoza,
with
the use of their firearms in the afternoon of October 3. 1977 at Sultan
Kudarat, Maguindanao, qualified with the aggravating circumstances of
treachery,
evident premeditation and abuse of superior strength.cralaw:red
Specifically, in
Criminal Case No. 561, the Information
charged the accused as follows:
That on or about October 3, 1977 in the
afternoon,
in the Municipality of Sultan Kudarat, Province of Maguindanao,
Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused,
with intent to kill, conspiring, confederating and helping one another
with treachery, evident premeditation and the use of superior strength
all armed with high powered weapons did then and there willfully,
unlawfully,
and feloniously, and with the use of their guns, shoot Mr. Nolasco
Mendoza
hitting the latter on different parts of his body causing his
instantaneous
death.
Contrary to law with the aggravating
circumstances
of treachery, evident premeditation, and the use of superior strength.
Similarly, in
Criminal Case No. 562, the Information
reads:
That on or about October 3, 1977, in the
afternoon,
in the Municipality of Sultan Kudarat, Province of Maguindanao,
Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused,
with intent to kill, conspiring, confederating and helping one another
with treachery, evident premeditation and the use of superior strength
all armed with high-powered weapons did then and there willfully,
unlawfully,
and feloniously, and with the use of their guns shoot Mr. Herminigildo
Fajardo Tenorio hitting the latter on the different parts of his body
causing
his instantaneous death.
Contrary to law with the aggravating
circumstances
of treachery, evident premeditation, and the use of superior strength.
The charges
having been allegedly committed at the
same place and occasion and involving all the four [4] accused in each
instance, were jointly tried per order of the trial court dated
February
28, 1978 and after completion thereof, the two herein
accused-appellants
were found guilty while the remaining two accused, Anacleto Simon and
Conrado
Erinada, were acquitted. We quote hereunder the dispositive portion of
the decision now under review, to wit:
WHEREFORE, Martin Mandolado is found
guilty
beyond
reasonable doubt of the crime of murder in Criminal Case No. 562 for
the
killing of Herminigildo Fajardo Tenorio, and also in Criminal Case No.
561 for the killing of Nolasco Mendoza, with the aggravating
circumstances
of [1] "advantage was taken of his being a draftee in the Philippine
Army,"
and [2] "abuse of confidence or obvious ungratefulness" without the
presence
of any mitigating circumstances and is meted the following penalty, to
wit:
In Criminal Case No. 562, for the
killing of
Herminigildo Tenorio, he is sentenced to suffer the penalty of the
crime
in its maximum degree which is death. He shall pay the heirs of the
deceased
the amount of P12,000.00 for the death of this victim, and the amount
of
P20,000.00 as moral and exemplary damages.
In Criminal Case No. 561 for the
killing of
the
driver, Nolasco Mendoza, he is similarly sentenced to death. He is to
pay
the heirs of said deceased the amount of P50,000.00 for the death of
said
victim, and the amount of P100,000.00 as moral and exemplary damages.
In both Criminal Cases Nos. 561 and
562, on
the
grounds of reasonable doubt, Anacleto Simon and Conrado Erinada
are
both found not guilty. This case against them [Anacleto Simon and
Conrado
Erinada] is hereby dismissed.
In Criminal Cases Nos. 561 and 562,
Julian
Ortillano
was found guilty as an accessory. He fired his M-16 armalite whenever
Martin
Mandolado fired his machine gun and this could be for no other purpose
than to conceal or destroy the body of the crime in making it appear
the
victims were fighting them or running away or that somebody else like
the
MNLF, rebels, NPA or bandits committed the crime. Furthermore, in his
own
admission, the purpose of their attempt to leave Mindanao for Bulacan
after
this incident was to hide and wait for the time when Martin Mandolado
could
succeed in settling this case which is evidence that he assisted in the
escape of the principal of the crime.
He is hereby sentenced in each of both
cases
to serve an imprisonment term of six [6] years of Prision Correccional
as the minimum penalty, to seventeen [17] years of Prision Mayor as the
maximum penalty.
Martin Mandolado and Julian Ortillano
are to
pay jointly and solidarily the cost of this litigation.
Given in the City of Cotabato,
Philippines,
the
28th day of June, 1979.
[Sgd.] ALEJANDRO R. LEOPANDO
District Judge
The facts are
as stated in the People's Brief as
follows:
In the morning of
October 3, 1977, Julian Ortillano,
Martin Mandolado, Conrado Erinada and Anacleto Simon,
trainees/draftees
of the Armed Forces of the Philippines and assigned to the 3rd Infantry
Battalion of the Philippine Army, were passengers of a bus bound for
Midsayap,
North Cotabato [p. 8, t.s.n., Feb. 21, 1979]. They alighted at the bus
terminal in Midsayap. Being all in uniform, armed and belonging to the
same military outfit, they got acquainted and decided to drink ESQ rum,
at the said bus terminal [pp. 10-11, supra].cralaw:red
While drinking,
Conrado Erinada and Anacleto
Simon decided to join appellants in going to Pikit, North Cotabato,
home
base of appellants [p. 59, id.]. After drinking for about an
hour,
appellant Mandolado got drunk and went inside the public market.
Subsequently,
he returned, grabbed his .30 caliber machine gun and started firing.
His
companions tried to dissuade him but he nonetheless continued firing
his
gun [pp. 11-12, supra]. Sensing trouble, Conrado
Erinada
and Anacleto Simon ran away, hailed and boarded a passing Ford Fiera
with
some passengers on board. Appellants followed and boarded also the
vehicle
[pp, 13-15, supra]. The soldiers forced the driver of the Ford
Fiera
to bring them to the Midsayap crossing [p. 58, t.s.n., July 24,1978].cralaw:red
On their way,
appellant Mandolado got his knife
and tried to attack the driver [pp. 61-62, supra]. After
appellants
alighted at said crossing, the Ford Fiera sped away. Appellant
Mandolado
fired his .30 caliber machine gun at the speeding vehicle [p. 51,
t.s.n.,
Jan. 17, 1979] hitting the right side of the back of the driver's
sister
who was then on board said vehicle [p. 64, t.s.n., July 24,
1978].
While waiting for a ride at the Midsayap crossing, a privately owned
jeep,
driven by Herminigildo Tenorio, passed by. On board said jeep which was
bound for Cotabato City were Nolasco Mendoza and two [2] others, but
the
latter two alighted at said crossing. Conrado Erinada and Anacleto
Simon
boarded the jeep. Thereafter, appellants ran after the jeep, shout at
Herminigildo
Tenorio the driver thereof, to stop the vehicle and subsequently, both
appellants Mandolado and Ortillano boarded the jeep [p. 34, supra].
On the way, both appellants kept firing their guns [pp. 54-55, t.s.n.,
Jan. 17, 1979] prompting Herminigildo Tenorio to remark, "Kung
hindi
kayo tatahimik, ibabangga ko itong jeep." [Sworn Statement, Exh.
"Q",
Mandolado] which literally means, "if you will not stop firing your
guns,
I will ram this jeep into something."
Upon learning
that the jeep was bound for Cotabato
City and not Pikit, North Cotabato, appellant Mandolado got angry,
"cocked"
his gun and ordered the driver to stop [pp. 36-38, supra].
While
the jeep was coming to a full stop, Conrado Simon and Anacleto
Erinada
immediately jumped off the jeep and ran towards their detachment camp
located
some two hundred fifty meters away. Appellants also got off the jeep.
Thereupon,
appellant Mandolado fired his .30 caliber machine gun at and hit the
occupants
of the jeep [Sworn Statement, Exh. "Q", Mandolado]. Appellant Ortillano
likewise, fired his armalite, not at the occupants of said jeep but
downwards
hitting the ground. These bursts of gunfire were heard by both Conrado
Erinada and Anacleto Simon who were then already about fifty
meters
away from the jeep while running towards their detachment camp [pp. 38
and 42, t.s.n., Feb. 21, 1979]. Although it was then raining
torrentially,
Anacleto Simon recognized the bursts of gunfire as those of a machine
gun
[p. 43, supra].cralaw:red
Appellants ran
away from the scene and boarded
another vehicle, alighting at Pinaring crossing. Appellant Mandolado
proceeded
to a house where he left his belongings and changed his wet uniform [p.
104, supra]. After about an hour, they rode in a "Hino"
passenger
bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo
Jalandoni
who was seated in front of the appellants. Upon reaching a BPH building
near Nuling, Sultan Kudarat, the passengers of said bus were ordered to
alight at the military check point but appellant Mandolado did not
alight
[pp. 10-13, t.s.n., Oct. 5, 1975]. As the bus was not proceeding to
Pikit,
North Cotabato and upon advice of Mr. Jalandoni, appellants alighted at
the Midsayap crossing and waited for a bus bound for Pikit [pp. 19-20,
supra].cralaw:red
Appellants were
able to ride on a sand and gravel
truck which took them to Pikit, North Cotabato, arriving thereat at
about
3:00 o'clock in the afternoon. At their camp, appellants returned their
firearms, but did not report the incident. In the evening, appellants
attended
a party at the Pikit Elementary School [pp. 32-35, t.s.n., April 16,
1979].
The following day, appellants proceeded to Davao City but stopped at
Kavocan
where they stayed overnight. Arriving at Davao City, the following
morning,
appellants went to see a movie and afterwards proceeded to the Office
of
Doña Ana, a shipping firm [p. 40, supra], where they saw
a certain Sgt. Villanueva who was then leaving for Luzon. Sgt.
Villanueva
informed the appellants that they were suspects in the Tenorio and
Mendoza
killings. Immediately thereafter, appellant Mandolado purchased two
passenger
tickets for Manila. The other ticket was for appellant Ortillano [pp.
120-123,
supra]. However, before appellants could board the ship
bound
for
Manila, they were apprehended by a team led by Lt. Licas [p. 45,
supra].
Appellants were brought to Pikit, North Cotabato where they were
investigated
by Lts. Licas and Maburang about the aforesaid killings. The following
day, appellants were brought to the headquarters of the 2nd MP
Battalion
at P.C. Hill, Cotabato City where they were again investigated. In said
investigation, after appellants were duly apprised of their
constitutional
rights, they executed and signed their respective sworn statements
[Exhs.
"O" and "R"]. Appellant Mandolado admitted the killing of Tenorio and
Mendoza
[Exh. "Q"]; whereas appellant Ortillano admitted his presence at said
killings
and of his having fired his armalite downwards after appellant
Mandolado
fired upon and killed the afore-named victims [Exh. "R"].cralaw:red
Silverio
Balderosa, on October 3, 1977, at about
12:30 p.m., was on board a "Pinoy" jeep. On his way home to Midsayap,
he
passed a jeep parked along the highway towards the direction of
Cotabato
City and about 250 meters away from the BPH building. The parked jeep
was
surrounded by several persons. Alighting from the "Pinoy" jeep, he went
near the parked jeep to see what happened. He saw the lifeless bodies
of
two persons, one sprawled along the highway whom he recognized as
Nolasco
Mendoza and the other whom he recognized as Mr. Tenorio slumped on the
wheel of the parked jeep [pp. 13-15, t.s.n., July 24, 1978].cralaw:red
The post-mortem
examination conducted by
Dr. Taeb Zailon, Municipal Health Officer of Sultan Kudarat,
Maguindanao,
upon the bodies of Tenorio and Mendoza on October 3, 1977, were reduced
into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed
at the
Rural
Health Center, Sultan Kudarat, Maguindanao on October 3, 1977 at around
3:30 p.m. in the presence of police officers of Sultan Kudarat,
Maguindanao
and personnel of the Health Center and other persons in the vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO
Sex: Male
Age: 55 yrs. old
Height: 5'5'
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato
Place of Death: Sultan Kudarat,
Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Avulsed cranial content at the
level of
forehead
including eyeballs;
2. Wound-circular lacerate 3 inches in
diameter
T-T at lateral side of right deltoie region;
3. Wound-1 in. circular wound at the
right
forearm
T-T 4 inches below the elbow;
4. Comminuted fracture at right leg
just
below
the knee cap;
5. Comminuted fracture at right leg
just
above
ankle;
6. Wound-1 in. circular
non-penetrating at
lateral
side left arm;
7. Wound-1/2in.circularnon-penetrating
at
left
region.
PROBABLE CAUSE OF DEATH
Hemorrhage severe secondary to
multiple
gunshot
wounds.
Respectfully submitted:
[Sgd.] TAEB ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao [Exh.
"N"]
POST-MORTEM EXAMINATION REPORT
Post-mortem examination report was
performed
at
the Rural Health Center, Sultan Kudarat, Maguindanao on October 3, 1977
at 3:30 p.m. in the presence of police officers, personnel of the
health
center and other civilians.
PERTINENT PERSONAL DATA:
Name: NOLASCO MENDOZA
Sex: Male
Age: 45 years old
Height: 5'4"
Weight: 135 lbs.
C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat,
Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Wound -Circular, one inch
wide, one
inch
above right eyebrow;
2. Wound-Circular, 1/2 inch
wide,
lateral
part of left side of neck:
3. Wound-Circular, 3/4 inch
wide,
upper
aspect of right deltoid muscle;
4. Wound-Circular, 1 1/2
inch
wide,
lateral aspect of right deltoid muscle; and
5. Wound-Circular, 1 1/2 inch
wide,
lateral
aspect of right breast 3 inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock,
secondary
hemorrhage,
external-internal, extensive
Respectfully submitted:
[Sgd.] TAEB A. ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao [Exh. "P"]
Acting upon the
letter-request of the commanding
officer, Lt. Rodolfo Villanueva, a ballistic test was conducted by Sgt.
Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on the
firearms
issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In
said
test, bullets were fired from said guns and the empty shells, called
test
specimen [T05-1 to T-05-3], together with the empty shells recovered
from
the scene of the crime called specimen evidence, and the 10 links of
cal.
30 machine gun, were forwarded to Camp Crame for Ballistic Examination
[pp. 20-24, t.s.n., October 6, 1978]. Sgt. Platoon marked the 8 shells
of .30 caliber recovered from the scene of the crime as HT-1 to
HT-8
and the armalite shells as CM-9 to CM-13.
In the ballistic
examination conducted by Reynaldo
Pasatiempo of the Camp Crame Criminal Laboratory, it was found that the
caliber .30 shells recovered from the scene of the crime [Exh.
"HT-1"
to "HT-8 "] reveal identical impressions as the test specimens of five
empty shells ["T-05-1" to "T-05-3"] fired from appellant
Mandolado's
machine gun. Whereas the armalite shells recovered from the scene of
the
crime reveal non-identical impressions with the shells fired from the
armalites
of Conrado Simon and Anacleto Erinada. He then concluded
that
the .30 caliber shells recovered from the scene of the crime were fired
from the same machine gun issued to appellant Mandolado [pp. 60-62,
t.s.n.,
October 6, 1978].cralaw:red
Appellants submit
only one assigned error and
that is, that the trial court erred in convicting appellants Martin
Mandolado
and Julian Ortillano beyond reasonable doubt as principal and
accessory,
respectively, of the crimes charged on the strength of the
prosecution's
evidence totally disregarding the evidence of the defense. Appellants
contend
that their guilt was not proven beyond reasonable doubt inasmuch as the
circumstantial evidence of the prosecution merely proved the fact of
the
deaths of Tenorio and Mendoza and not as to the actual perpetrators of
the crime; that the evidence of the prosecution being weak on its own,
the only link of the appellant Mandolado to the killings is his
extra-judicial
sworn confession, Exhibit "Q", which he stoutly repudiates for being
unlawfully
taken under force and duress and in the failure of the investigator to
apprise him of his constitutional right to remain silent and to be
assisted
by counsel.cralaw:red
It is contended
by the defense that although the
ballistic expert and the firearm examiner testified that they conducted
ballistic and firearm examinations, respectively, and that their
finding
was that the caliber .30 empty shells were fired from the machine gun
issued
to Martin Mandolado, the prosecution failed to prove that the "evidence
specimen" [Exh. "HT-1" to Exh. "HT-8"] were the empty shells recovered
from the scene of the crime, the prosecution not having presented any
witness
who recovered these empty shells. It was not shown that these empty
shells
were recovered from the scene of the crime nor that the slugs of these
empty shells caused the gunshot wounds which resulted in the death of
the
victims, Hence, the only link of appellant Martin Mandolado with the
empty
caliber .30 shells was the fact that these shells were fired from his
machine
gun, yet the records disclose that Mandolado accidentally fired his
machine
gun at the Mintranco Terminal in Midsayap, North Cotabato, which is not
the scene of the crime, when he threatened the person who tried to
steal
his bag.cralaw:red
Appellant
Mandolado's claim that he was not previously
apprised of his constitutional rights before he executed his
extra-judicial
confession, Exh. "Q ", deserves scant consideration. His claim is
clearly
belied by the opening statements appearing in his sworn statement,
which
reads, thus:
Preliminaries: Dft. Martin Mandolado
please be
informed that you are now under investigation by this unit in
connection
with the shooting incident that happened at National Highway
particularly
near the vicinity of the BPH Office at Sultan Kudarat, Maguindanao on
or
about 031300H October 1977. Before I ask you any questions, you must
understand
your legal rights, to wit: You have the right to remain silent.
Anything
you say may be used for or against you as evidence. You have the right
to the services of a lawyer of your own choice. If you cannot afford a
lawyer and you want one, a lawyer will be appointed for you before I
ask
you any questions.
Question: Are these all clearly
understood
by you?
2. Q Do you wish now to proceed with this
investigation
even in the absence of a lawyer of your own choice?
A Yes sir.
3. Q Are you willing to give your
statement
without
being forced, coerced, intimidated or promised of any reward whatsoever?
A Yes sir.
4. Q Now that you are about to testify
under
oath,
do you swear to tell the truth?
A Yes sir.
WAIVER
I have been advised of my legal right
to
remain
silent; that anything I say maybe used as evidence against me, and that
I have the right to a lawyer to be present with me while I am being
questioned.
And with
respect to the accused-appellant Julian
Ortillano, the same preliminary questions were made to him before his
investigation
and he answered similarly as his co-accused Mandolado which is shown in
Exhibit "R" and said Ortillano likewise executed the same waiver as
that
of his co-accused, which is marked Exhibit "R-A".
The contention of
both appellants that they signed
their sworn statements (Exhibits "Q" and "R"] because they were
maltreated
and forced, cannot be believed, not only for failure on their part to
present
any evidence of compulsion, duress or violence but also because they
even
failed to identify their investigators who allegedly inflicted
maltreatment
to them, much less complained to the officials who administered the
oaths
to their sworn statements of such maltreatment, if any. Moreover, the
sworn
statements themselves contain significant and important details which
the
affiants alone could have furnished, thereby clearly revealing the
voluntariness
of said statements and rendering the same admissible as evidence.
[People
vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People
vs. Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA 93,99].cralaw:red
The conviction of
appellant Mandolado for double
murder appears to be based not only on his extra-judicial confession
[Exhibit
"Q"] but also upon the following circumstances which proved that he did
shot and kill the victims, Tenorio and Mendoza, beyond reasonable
doubt.
And these are listed in the People's Brief, to wit: "(1) he repeatedly
fired his .30 caliber machine gun while intoxicated at the bus terminal
in Midsayap [pp. 11-12, t.s.n., February 21, 1979]; (2) that he fired
at
the Ford Fierra which took them in the Midsayap junction [p. 51, supra]
hitting one of its passengers [p. 64, t.s.n., July 24, 1978]; (3) that
Anacleto Simon while running away from the jeep driven by the deceased,
heard a burst of machine gun fire coming from the direction of the jeep
[p. 42, t.s.n., February 21, 1979]; (4) the result of the Ballistic
examination
showing that the shells recovered from the scene of the crime were
fired
from the gun issued to appellant Mandolado [pp. 60-62, t.s.n., October
16, 1978]; (5) the attempted flight of both appellants from justice
[pp.
120-123, t.s.n., April 16, 1979] and which act clearly indicates guilt
for the "wicked tread where no man pursueth but the righteous are as
bold
as the lion," and lastly (6) appellant's own admission before the lower
court that he killed Tenorio and Mendoza although he claims the same to
be accidental (p[. 7-8, t.s.n., October 6, 1978]."
The killing of
the two victims in the case at
bar is correctly qualified as murder, there being present the
qualifying
circumstance of treachery which is alleged in the informations. There
is
treachery when the offender commits any of the crimes against the
person,
employing means, methods or forms in the execution thereof which tend
directly
and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make. [Art.
14, paragraph 16, Revised Penal Code]. The prosecution evidence is
quite
clear and explicit that when appellants alighted from the jeep, the
accused
Mandolado immediately fired his .30 caliber machine gun at the
occupants
of the jeep, the victims Nolasco Mendoza and Herminigildo Tenorio, and
both of them died instantaneously on the spot, and from this sudden
means
or manner of attack, it can reasonably be concluded that it tended
directly
to insure its execution without risk to the appellant-assailant and
also
deprive the victims of any chance or opportunity to defend themselves.
We also rule that the particular means or manner employed by the
appellant-assailant
was consciously or deliberately sought and not a mere accidental
circumstance
resorted to on the spur of the moment on the basis of the evidence that
the appellant had previously and repeatedly fired his .30 caliber
machine
gun at the bus terminal in Midsayap and had also fired the machine gun
at the Ford Fiera which took them to Midsayap junction and that
appellants
waited for sometime riding on board the jeep driven by Tenorio before
they
ordered the jeep to stop, alight therefrom and then shoot the occupants
therein.cralaw:red
While the
Informations allege as aggravating circumstances
that of evident premeditation and the use of superior strength, aside
from
treachery, We cannot agree with the finding of the trial court that the
aggravating circumstances of (1) advantage was taken of his being a
Draftee
in the Philippine Army, and (2) abuse of confidence or obvious
ungratefulness
were present in the commission of the crime.
While it may be true that a soldier in the Armed
Forces of the Philippines is deemed as one who holds public position
[U.S.
vs. Gimenea, 24 Phil. 464, where a constabulary soldier was held to be
a public officer], there is no persuasive showing that herein
appellants
being draftees of the Army, in full military uniform and carrying their
high-powered firearms, facilitated the commission of the crimes they
were
charged. It may be conceded that as draftees, the accused could easily
hitch hike with private vehicles, as in the case of the deceased
Tenorio's
owner-type jeep, but there is no evidence that when they stopped the
jeep
the accused already intended to shoot the occupants of the vehicle. As
it was held in People Pantoja, 25 SCRA 468, 471, which We reiterate
that
"There is nothing to show that the appellant took advantage of his
being
a sergeant in the Philippine Army in order to commit the crimes. The
mere
fact that he was in fatigue uniform and had an army rifle at the time
is
not sufficient to establish that he misused his public position in the
commission of the crimes."
There is also
merit in appellants' contention
that there could be no abuse of confidence as the evidence on record
showed
the lack of confidence by the victims to the appellants, that this
confidence
was abused, and that the abuse of the confidence facilitated the
commission
of the crimes. In order that abuse of confidence be deemed as
aggravating,
it is necessary that "there exists a relation of trust and confidence
between
the accused and one against whom the crime was committed and the
accused
made use of such a relationship to commit the crime." [People vs.
Comendador,
100 SCRA 155, 172]. It is also essential that the confidence between
the
parties must be immediate and personal such as would give that accused
some advantage or make it easier for him to commit the crime; that such
confidence was a means of facilitating the commission of the crime, the
culprit taking advantage of the offended party's belief that the former
would not abuse said confidence [People vs. Hanasan, 29 SCRA 534]. In
the
instant case, there is absolutely no showing of any personal or
immediate
relationship upon which confidence might rest between the victims and
the
assailants who had just met each other then. Consequently, no
confidence
and abuse thereof could have facilitated the crimes.cralaw:red
Similarly, there
could have been no obvious ungratefulness
in the commission of the crime for the simple reason that the requisite
trust of the victims upon the accused prior to the criminal act and the
breach thereof as contemplated under Article 14, par. 4 of the Revised
Penal Code are manifestly lacking or non-existent. In all likelihood,
the
accused Army men in their uniforms and holding their high-powered
firearms
cowed the victims into boarding their jeep for a ride at machine gun
point
which certainly is no source of gratefulness or appreciation.cralaw:red
The finding of
the trial court that: "There is
no doubt about Martin Mandolado's state of intoxication. He was so
drunk
that even his three [3] companions armed with M-16 armalite feared him.
The same thing was true with the MPs," should credit said accused with
the mitigating circumstance of drunkenness but which the trial court
decision
failed to appreciate in his favor. Accordingly, the penalty to be
imposed
upon the accused-appellant Mandolado shall be reduced in the
computation
thereof.cralaw:red
With respect to
the accused-appellant Julian Ortillano
who was found guilty as an accessory in Criminal Cases No. 561 and No.
562 for having fired his M-16 armalite whenever Martin Mandolado fired
his machine gun and, according to the court, this could be for no other
purpose than to conceal or destroy the body of the crime and making it
appear that the victims were fighting them or running away or that
somebody
else like the MNLF, rebels, NPA or bandits committed the crime, and for
assisting in the escape of the principal [Martin Mandolado] of the
crime
and sentenced in each of both cases to serve imprisonment for a term of
six [6] years of prision correccional as minimum to seventeen [17]
years
of prision mayor as maximum, We find and hold that the
accused-appellant
Julian Ortillano should be convicted, not as an accessory, but as an
accomplice.cralaw:red
An accomplice
cooperates in the execution of the
offense by previous or simultaneous acts, provided he has no direct
participation
in its execution or does not force or induce others to commit it, or
his
cooperation is not indispensable to its accomplishment [Art. 18,
Revised
Penal Code].cralaw:red
To hold him
liable, upon the other hand, as an
accomplice, it must be shown that he had knowledge of the criminal
intention
of the principal, which may be demonstrated by previous or simultaneous
acts which contributes to the commission of the offense as aid thereto
whether physical or moral [People vs. Silvestre, et al., 56 Phil, 353,
356]. As aptly stated in People vs. Tamayo [44 Phil. 38, 49]: 'It is an
essential condition to the existence of complicity, not only that there
should be a relation between the acts done by the principal and those
attributed
to the person charged as accomplice, but it is further necessary that
the
latter, with knowledge of the criminal intent, should cooperate with
the
intention of supplying material or moral aid in the execution of the
crime
in an efficacious way. (People vs. Custodia, 47 SCRA 289,303
[19721]).cralaw:red
In the case at
bar, Ortillano, by his acts, showed
knowledge of the criminal design of Mandolado. He was present when
Mandolado
tried to attack the driver of the Ford Fierra with a knife and fired at
the vehicle hitting a female passenger [p. 4, Decision]. When Mandolado
got angry and "cocked" his gun and ordered Tenorio to stop the jeep,
their
two other companions, Simon and Erinada, immediately jumped off the
jeep
and ran away, but Ortillano stayed. In a display of unity with
Mandolado,
Ortillano fired his armalite while they were riding in the jeep of the
victim [p. 5, Decision]. And Ortillano's act of firing his gun towards
the ground manifested his concurrence with the criminal intent. In
other
words, Ortillano's simultaneous acts supplied, if not material, moral
aid
in the execution of the crime in an efficacious way. Ortillano's
presence
served to encourage Mandolado, the principal, or to increase the odds
against
the victims (U.S. vs. Guevara, 2 Phil. 528 [1903]; People vs. Silvestre
and Atienza, 56 Phil. 353 [1931]).cralaw:red
In convicting the
accused Ortillano as an accomplice,
We, however, appreciate the mitigating circumstance of drunkenness in
his
favor, the same as We did to his co-accused Martin Mandolado, the
principal
defendant.cralaw:red
In resume, the
crime committed by the accused-appellant
Martin Mandolado is murder, qualified by treachery. There being no
aggravating
circumstance but having found and appreciated drunkenness which is not
habitual as a mitigating circumstance, the penalty prescribed under
Article
248 of the Revised Penal Code which is reclusion temporal in its
maximum
period to death shall be imposed in its minimum period. Applying the
Indeterminate
Sentence Law, the accused shall be sentenced to imprisonment of ten
[10]
years and one [1] day of prision mayor as minimum to seventeen [17]
years,
four [4] months and one [1] day of reclusion temporal as maximum in
each
case.cralaw:red
As to the
accused-appellant Julian Ortillano,
convicted as an accomplice to the crime of murder, and appreciating in
his favor the mitigating circumstance of drunkenness which is not
habitual,
the penalty to be imposed upon him shall be one degree lower than that
imposed for murder [Article 52, Revised Penal Code], which will be in
the
minimum period. Applying the Indeterminate Sentence Law, the accused
Ortillano
shall be sentenced to imprisonment of four [4] years, two [2] months of
prision correccional as minimum to ten [10] years and one [1] day of
prision
mayor as maximum in each case.cralaw:red
With respect to
damages, for the death of Herminigildo
Tenorio, the award of P12,000.00 as compensatory damages and P
20,000.00
for moral damages is hereby affirmed. For the death of Nolasco
Mendoza,
We reduce the award of P50,000.00 as compensatory damages to
P12,000.00.
We also reduce the award of P100,000.00 as moral damages to
P20,000.00.
The liability of the appellants for the above damages which shall be
paid
to the heirs of the victims shall be in solidum [Article 110,
par.
1, Revised Penal Code].cralaw:red
WHEREFORE, in
view of all the foregoing, the judgment
of the trial court is hereby modified. The accused-appellant Martin
Mandolado
is hereby found guilty beyond reasonable doubt of the crime of murder
in
Criminal Case No. 561 for the killing of Nolasco Mendoza and in
Criminal
Case No. 562, for the killing of Herminigildo Tenorio. There being no
aggravating
circumstance but having found and appreciated drunkenness which is not
habitual as a mitigating circumstance, said accused is hereby sentenced
to suffer imprisonment of ten [10] years and one [1] day of prision
mayor
as minimum to seventeen [17] years, four [4] months and one [1] day of
reclusion temporal as maximum in each of the two cases.cralaw:red
The
accused-appellant Julian Ortillano is hereby
found guilty beyond reasonable doubt as accomplice in the crime of
murder
in Criminal Case No. 561 for the killing of Nolasco Mendoza and in
Criminal
Case No. 562 for the killing of Herminigildo Tenorio. Similarly, there
being no aggravating circumstance but having found and appreciated the
mitigating circumstance of drunkenness which is not habitual in his
favor,
said accused is hereby sentenced to suffer imprisonment of four [4]
years,
two [2] months of prision correccional as minimum to ten [10] years and
one [1] day of prision mayor as maximum in each case.cralaw:red
In Criminal Case
No. 561 for the killing of Nolasco
Mendoza, We sentence both accused to pay the heirs of the victim
P12,000.00
as compensatory damages and P20,000.00 as moral damages. The liability
of the accused shall be in solidum.cralaw:red
In Criminal Case
No. 562 for the killing of Herminigildo
Tenorio, We sentence both accused to pay the heirs of the victim
P12,000.00
as compensatory damages and P20,000.00 for moral damages. The liability
of the accused shall also be in solidum.cralaw:red
Costs against the
appellants. Judgment modified.cralaw:red
SO ORDERED.
Fernando C.J.,
Teehankee, Makasiar, Concepcion,
Jr., Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez,
Relova, and Gutierrez, Jr., JJ., concur.
Aquino, J., took no part. |