2.

PEOPLE V GEMOYA perpetrator is criminally responsible to the same extent as the one who inflicted the fatal
VOL. 342, OCTOBER 4, 2000 63 blow.
People vs. Gemoya Same; Same; Same; Mistake in the identity of the victim x x x is neither exempting nor
G.R. No. 132633. October 4, 2000.* mitigating.—Although Rosalie may not have been their intended victim, accused-
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO GEMOYA and RONILO appellants, acting in conspiracy with one another as we have earlier discussed, are liable
TIONKO, accused-appellants. for the consequences of their felonious act (see: Paragraph 1, Article 4, Revised Penal
Criminal Law; Murder; Evidence; Self-Defense; When an accused admits having killed Code). Mistake in the identity of the victim, which may either be (a) “error in personae”
the victim, the burden of proving his innocence is shifted to him.—When an accused admits (mistake of the person), or (b) “aberratio ictus” (mistake in the blow), is neither
having killed the victim, the burden of proving his innocence is shifted to him. We ruled exempting nor mitigating (People vs. Gona, 54 Phil. 605 [1930]). Accused-appellants,
in People vs. Manlulu (231 SCRA 701 [1994]) that “by invoking self-defense, the accused therefore, cannot escape the criminal liability resulting from the injury suffered by
admit killing Alfaro. The burden of proof is thus shifted to them. Their duty now is to Rosalie.
establish by clear and convincing evidence the lawful justification for the killing.”
Same; Same; Same; Qualifying Circumstance; Abuse of Superior Strength; Abuse of AUTOMATIC REVIEW of a decision of the Regional Trial Court of Davao City, Br. 15.
superior strength is considered whenever there is a notorious inequality of forces between The facts are stated in the opinion of the Court.
the victim and the aggressor, assessing a superiority of strength notoriously advantageous 65
for the aggressor which is selected or taken advantage of in the commission of the crime.— VOL. 342, OCTOBER 4, 2000 65
Abuse of superior strength is considered whenever there is a notorious inequality of People vs. Gemoya
forces between the victim and the aggressor, assessing a superiority of strength The Solicitor General for plaintiff-appellee.
notoriously advantageous for the aggressor which is selected or taken advantage of in Lucilo B. Sarona, Jr. for accused-appellant Ronilo Tionko.
the commission of the crime (People vs. Bongadillo, 234 SCRA 233 [1994]). When four Free Legal Assistance Group and Quasha, Ancheta, Peña & Nolasco for A. Gemoya.
armed assailants, two of
_______________ MELO, J.:
* EN BANC.
Before us on automatic review is a joint decision of the Regional Trial Court of the
64 Eleventh Judicial Region stationed in Davao City (Branch 15), finding accused-appellants
6 SUPREME COURT REPORTS ANNOTATED guilty of frustrated homicide in Criminal Case No. 35,459-96, and sentencing each of
4 them to a prison term of two years, four months, twenty-one days to eight years and one
People vs. Gemoya day. The two accused-appellants were also found guilty of murder in Criminal Case No.
whom are accused-appellants in this case, gang up on one unarmed victim, it can 36,460-96, and were sentenced to suffer the death penalty.
only be said that excessive force was purposely sought and employed. The relevant facts are summarized in the People’s Brief as follows:
Same; Same; Same; Conspiracy; Conspiracy can be inferred and proved by the totality At about 9:00 in the evening of January 27, 1996, the neighborhood of Barrio Malagamot,
of the acts of the accused when said acts point to a joint purpose and design.—A conspiracy Panacan, Davao City was awakened by a commotion. Irene Lantapon was among those
exists when two or more persons come to an agreement concerning the commission of a who went out to check what was happening. She saw accused Armando Gemoya and
felony and decide to commit it (People vs. Taguba, 229 SCRA 188 [1994]). Conspiracy Candelario Aliazar running towards their house (TSN, June 11, 1996, p. 20; November 5,
need not be proved by direct evidence of a prior agreement to commit the crime. It may 1996, p. 65).
be deduced either from the mode and manner in which the offense was committed or After about half an hour, Gemoya and Aliazar came back with Ronilo and Rolly
from the accused themselves pointing to a community of interest or concerted action Tionko, the former’s uncles and the latter’s in-laws. They were armed with pipe, wood
(People vs. Gayon, 269 SCRA 587 [1997]). Herein accused-appellants and their and an improvised bow and arrow locally called “indian pana.” It was like a sling shot
companions ganging up upon a single common victim until one of them is able to inflict with an arrow made of nail with feathers in the end. Addressing a group of people who
the total wound is clearly indicative of a common design to assail and disable their were huddled together, Ronilo Tionko stopped and demanded an explanation for what
victim. Conspiracy can be inferred and proved by the totality of the acts of the accused happened to his brother-in-law. They replied that nothing happened to him and advised
when said acts point to a joint purpose and design. them to go home. Accused ignored them and proceeded to the house of the Alferezes,
Same; Same; Same; Same; A conspirator, no matter how minimal his participation in which was along the road in front of the school, when they saw Wilfredo Alferez standing
the crime, is as guilty as the principal perpetrator of the crime.—A conspirator, no matter by the road waiting for a taxi (ibid., June 11, 1996, pp. 5, 16, 20-21; November 4, 1996, p.
how minimal his participation in the crime, is as guilty as the principal perpetrator of the 57; November 5, 1996, pp. 66 and 71).
crime (People vs. Alas, 274 SCRA 310 [1997]). Holding the victim to render him The quartet rushed to him. Ronilo Tionko beat him with a cylindrical wood, Rolly
immobile to enable his companions to consummate their dastardly act (People vs. Tionko with a pipe of the same size while Aliazar held his arms behind him. Once
Dinglasan, 207 SCRA 29 [1997]) or standing guard or lending moral support to the actual Gemoya had aimed his “indian pana,” they stepped aside to ensure that they would not
be hit. Wilfredo Alferez was
Page 1 of 4
 66 (p. 27, Rollo.)
66 SUPREME COURT REPORTS ANNOTATED In their individual and separate briefs, the following errors are assigned:
People vs. Gemoya
hit directly on his left chest. Slumped to the ground, Edgardo Jimenez rushed to his aid. Accused-appellant Ronilo Tionko:
His daughter Rosalie, who had just come from school, tried to pull him away. Irene THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT RONILO TIONKO
Lantapon yelled at her to run as Gemoya was about to shoot his “indian pana” again. GUILTY IN CRIMINAL CASE NO. 36,459-96 FOR FRUSTRATED HOMICIDE, WITH
Before she could do so, she was hit in her left ear. Then the four scampered away (ibid., RESPECT TO VICTIM ROSALIE JIMENEZ AND, ALSO, IN FINDING HIM GUILTY IN
June 11, 1996, pp. 6-7, 21-24; June 13, 1996, pp. 34-36; November 4, 1996, pp. 57-53; CRIMINAL CASE NO. 36,460-96 FOR THE MURDER OF WILFREDO ALFEREZ AS THE SET
November 5, 1996, pp. 66-67; November 6, 1996, pp. 79-81). OF FACTS OBTAINING IN THE CASE AT BAR IS CAPABLE OF TWO OR MORE
Rosalie Jimenez and Wilfredo Alferez were rushed to the hospital. After minor EXPLANATION.
treatment, she was declared out of danger. Wilfredo Alferez was not as lucky. He was Accused-appellant Armando Gemoya:
pronounced dead on arrival (ibid., June 11, 1996, pp. 8-9; June 13, 1996, pp. 36, 41;
November 6, 1996, p. 81). I.
Two separate Informations were filed against four suspects, namely, the herein two THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING GEMOYA OF THE CRIME OF
accused-appellants and two others who have remained at-large, to wit: MURDER.
Criminal Case No. 36,459-96
That on or about January 27, 1996, in the City of Davao, Philippines, and within the II.
jurisdiction of this Honorable Court, the accused, conspiring together and mutually THE TRIAL COURT SERIOUSLY ERRED IN FAILING TO APPRECIATE THE
helping one another, with intent to kill, hit with the use of an “indian pana,” one Rosalie MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF GEMOYA.
Jimenez. The accused performed all the acts of execution which could produce the crime
of Homicide, as a consequence but which did not produce it by reason of a timely medical III.
intervention, a cause which is independent of the will of the perpetrators. THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING GEMOYA OF THE CRIME OF
Contrary to law. FRUSTRATED HOMICIDE FOR THE WOUNDING OF ROSALIE JIMENEZ.
68
Criminal Case No. 36,460-96 68 SUPREME COURT REPORTS ANNOTATED
That on or about January 27, 1996 in the City of Davao, Philippines, and within the People vs. Gemoya
jurisdiction of this Honorable Court, the accused, conspiring together and mutually
helping one another, with intent to kill, treachery and abuse of superior strength,
IV.
wilfully, unlawfully and feloniously attacked, assaulted and hit with an “indian pana” one
THE TRIAL COURT SERIOUSLY ERRED IN IMPOSING THE DEATH PENALTY OF
Wilfredo Alferez which caused his subsequent death.
GEMOYA.
Contrary to law.
After reviewing the evidence on record we find no compelling reason to depart from the
(pp. 7-8, Rollo.)
factual findings of the trial court that accused-appellants, in conspiracy with one another,
On May 28, 1996 and August 28, 1996, Armando Gemoya and Rondo Tionko,
committed the crime of murder qualified by abuse of superior strength. In People vs.
respectively, entered their pleas of “not guilty,” and the two criminal cases were
Patalin (G.R. No. 125539, July 27, 1999) we reiterated the ruling on this matter, thus:
thereafter jointly tried, following which, judgment was rendered disposing:
Of primordial consideration in appellate matters is the legal principle that the
67
assessment of the credibility of witnesses and their testimony is a matter best
VOL. 342, OCTOBER 4, 2000 67
undertaken by the trial court because of its unique opportunity to observe the witnesses
People vs. Gemoya
firsthand and to note their demeanor, conduct, and attitude under grilling examination.
WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable We generally uphold and respect this appraisal since as an appellate court, we do not
doubt in the two cases, judgment is rendered as follows: deal with live witnesses but only with the cold pages of a written record.
(p. 15)
1. 1.Criminal Case No. 36,459-96—the penalty of two years, four months, twenty- Accused-appellant Gemoya claims that the uniform narration of facts by prosecution
one days to eight years and one day is imposed on accused Armando Gemoya witnesses is not supported by the documentary and the expert’s testimony of the NBI
and Ronilo Tionko for frustrated homicide with respect to victim Rosalie Medico Legal Officer who conducted the autopsy examination on the victim Wilfredo
Jimenez. Alferez. Dr. Ricardo M. Rodaje affirmed that he found no other injury on Wilfredo aside
2. 2.Criminal Case No. 36,460-96—the death penalty is imposed on accused from the puncture wound on his chest which was the sole cause of death (TSN, July 3,
Armando Gemoya and Ronilo Tionko for the murder of Wilfredo Alferez. 1996, p. 46).

Page 2 of 4
 We are not persuaded by this argument. Ronilo Tionko beat Wilfredo with a cylindrical wooden cane or “batuta,” and Rolly
It must be borne in mind that accused-appellant Gemoya has not denied having Tionko with a pipe, while Gemoya, after his companions had step aside to give him a
executed the fatal act, which caused the death of Wilfredo Alferez. He admittedly clear shot, released his dart-missile at Wilfredo. A conspiracy exists when two or more
discharged the weapon (“indian pana”) which hit a vital organ of the victim, causing his persons come to an agreement concerning the commission of a felony and decide to
instantaneous death. His only lame excuse is that, to defend himself, he used the sling commit it (People vs. Taguba, 229 SCRA 188[1994]). Conspiracy need not be proved by
shot (“indian pana”), which he grabbed from “somebody,” against the victim in the direct evidence of a prior agreement to commit the crime. It may be deduced either from
course of a tumultuous affray allegedly instigated by the victim himself. the mode and manner in which the offense was committed or from the accused
When an accused admits having killed the victim, the burden of proving his themselves pointing to a community of interest or concerted action (People vs.
innocence is shifted to him. We ruled in People vs. Man- Gayon, 269 SCRA 587 [1997]). Herein accused-appellants and their companions ganging
69 up upon a single common victim until one of them is able to inflict the total wound is
VOL. 342, OCTOBER 4, 2000 69 clearly indicative of a common design to assail and disable their victim. Conspiracy can
People vs. Gemoya be inferred and proved by the totality of the acts of the accused when said acts point to a
lulu (231 SCRA 701 [1994]) that “by invoking self-defense, the accused admit killing joint purpose and design (People vs. Bayrante, 235 SCRA 19 [1994]).
Alfaro. The burden of proof is thus shifted to them. Their duty now is to establish by clear With or without himself inflicting injuries upon victim Wilfredo, accused-appellant
and convincing evidence the lawful justification for the killing.” Accused-appellant Ronilo Tionko is equally liable for the crime of murder in the case at bar as accused-
Gemoya can no longer invoke the constitutional right of being presumed innocent of the appellant Gemoya. He cannot escape criminal liability under the circumstances even
crime charged. As far as he is concerned, the crime of murder in the case at bar is though the autopsy report indicated no other injuries except the punctured wound on
established once the prosecution, establishes any of the qualifying circumstances with the victim’s chest. A conspirator, no matter how minimal his participation in the crime, is
proof beyond reasonable doubt. This is because the fact of death and the cause thereof as guilty as the principal perpetrator of the crime (People vs. Alas, 274 SCRA 310[1997]).
are already established by the admission. The intent to kill is likewise presumed from the Holding the victim to render him immobile to enable his companions to consummate
fact of death, unless the accused proves by convincing evidence that any of the justifying their dastardly act (People vs. Dinglasan, 267 SCRA 29 [1997]) or standing guard or
circumstances in Article 11 or any of the exempting circumstances in Article 12, both of lending moral support to the actual perpetrator is criminally responsible to the same
the Revised Penal Code, is present. extent as the one who inflicted the fatal blow (People vs. Diaz, 271 SCRA 504[1997]).
As we have earlier observed, however, we find no cogent reason to disregard the As regards their second victim, Rosalie Jimenez, however, we agree with accused-
trial court’s factual findings on this score. We find nothing upon review of the record, appellants that the trial Court erred in con-
which would convince us that accused-appellant Gemoya and his cohorts were not the 71
assailants in this case. The theory of self-defense has not been duly established. VOL. 342, OCTOBER 4, 2000 71
The fact that accused-appellant shot the victims with an “indian pana” cannot be People vs. Gemoya
negated by supposed inconsistencies between the testimony of the eyewitnesses and the victing them of frustrated homicide. As correctly pointed out in the People’s brief, the
findings of the medico-legal officer who conducted the autopsy examination. It matters testimony of Jerry Lantapon and Irene Lantapon concurred to the effect that the hitting
not if Wilfredo suffered no injury other than the fatal puncture wound. His death was of Rosalie was accidental as the second “indian pana” was intended for Wilfredo. The
caused by that puncture wound, and the fact that there were four assailants who ganged intent to kill Rosalie which is essential if accused-appellants were to be held liable for
up on the said victim is incontestable. These established realities make accused- frustrated homicide is, therefore, absent.
appellants criminally liable for murder, qualified by a use of superior strength. The two accused-appellants herein are liable for the crime resulting from Gemoya’s
Abuse of superior strength is considered whenever there is a notorious inequality of act of releasing the second “indian pana,” which accidentally hit Rosalie. Although
forces between the victim and the aggressor, assessing a superiority of strength Rosalie may not have been their intended victim, accused-appellants, acting in
notoriously advantageous for the aggressor which is selected or taken advantage of in conspiracy with one another as we have earlier discussed, are liable for the
the commission of the crime (People vs. Bongadillo, 234 SCRA 233 [1994]). When four consequences of their felonious act (see: Paragraph 1, Article 4, Revised Penal Code).
armed assailants, two of whom are accused-appellants in this case, gang up on one Mistake in the identity of the victim, which may either be (a) “error in personae” (mistake
unarmed victim, it can only be said that excessive force was purposely sought and of the person), or (6) “aberratio ictus” (mistake in the blow), is neither exempting nor
employed. mitigating (People vs. Gona, 54 Phil. 605 [1930]). Accused-appellants, therefore, cannot
70 escape the criminal liability resulting from the injury suffered by Rosalie.
70 SUPREME COURT REPORTS ANNOTATED As for the penalty, even though it appears on record that Rosalie received medical
People vs. Gemoya treatment immediately after her injury, there is no evidence regarding the extent of
Although only accused-appellant Gemoya may have inflicted the fatal wound upon the incapacity said injury caused her. Accordingly, accused-appellants may only be held
victim in this case, accused-appellant Tionko is also liable for the crime of murder since liable for the crime of slight physical injury under Paragraph 2 of Article 266 of the
evidently, the concerted acts of the two accused-appellants, and their two other Revised Penal Code, which provides:
companions, to obtain a common criminal objective signify conspiracy among them.
Page 3 of 4
ART. 266. Slight physical injuries and maltreatment—The crimeof slight physical injuries 35,459-96 and each sentenced to a determinate prison term of thirty (30) days of arresto
shall be punished: menor; and (b) murder in Criminal Case No. 36,460-96 and accordingly each sentenced
to reclusion perpetua, and ordered to solidarity pay civil indemnity in the amount of Fifty
1. 1.By arresto menor when the offender has inflicted physical injuries which shall Thousand Pesos (P50,000.00) to the heirs of Wilfredo Alferez for the latter’s death, the
incapacitate the offended party for labor from one to nine days, or shall two prison terms to be served concurrently with one another. No special pronouncement
require medical attention during the same period. is made as to costs.
2. 2.By arresto menor or a fine not exceeding 200 pesos and censure when the SO ORDERED.
offender has caused physical injuries which do not prevent the offended party Davide,
from engaging in his habitual work nor require medical attendance; Jr. (C.J.), Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Par
3. 3.By arresto menor in its minimum period or a fine not exceeding 50 pesos do, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
when the offender shall illtreat another by deed without causing injury. Accused-appellants guilty of slight physical injury and murder.
72 Note.—Having invoked the justifying circumstance of self-defense, the accused is
72 SUPREME COURT REPORTS ANNOTATED deemed to have necessarily admitted having killed the victim and the proof is thereupon
People vs. Gemoya shifted to him to establish and to prove the elements of self-defense. (People vs.
Cahindo, 266 SCRA 554 [1997])
Since there is no showing that victim Rosalie Jimenez was incapacitated from carrying
out her habitual work after the injury, both accused-appellants in this case are sentenced
to the penalty of arresto menor or a fine of P200.00 and censure for the crime of slight ——o0o——
physical injury.
As to the imposition of the death penalty upon both accused-appellants in this case,
we agree with the Solicitor General and accused-appellant Gemoya that the trial court
seriously erred in not considering the mitigating circumstance of voluntary surrender in
favor of accused-appellant Gemoya. The trial court likewise erred in imposing the
maximum in the range of penalty for murder.
Under Article 248 of the Revised Penal Code, the crime of murder is punished
by reclusion perpetua to death. Where there are no aggravating and no mitigating
circumstances attendant in the commission of the crime, the medium penalty shall be
imposed. For the crime of murder, the medium as well as the minimum penalty are the
same because the lower range penalty, reclusion perpetua is an indivisible penalty.
Applying the rule to the case at bar where there is the mitigating circumstance of
voluntary surrender and the absence of any aggravating circumstances other than those
already absorbed in the circumstances which qualified the killing to murder (People vs.
Cheng, 279 SCRA 129 [1997]), the minimum penalty of reclusion perpetua should be
imposed.
Finally, as correctly pointed out in the People’s brief, when death occurs as a result of
a crime, the heirs of the deceased are entitled to the amount of as P50,000.00 indemnity
for the death of the victim without need of any evidence or proof of damage (People vs.
Galladan, G.R. No. 126932, November 19, 1999; People vs. Española, 211 SCRA
689 [1997]). Thus, civil indemnity in the amount of P50,000.00 for the death of Wilfredo
Alferez will have to be awarded in favor of his heirs. Accused-appellants being convicted
as co-principals for the crime of murder, the two shall be held solidarily liable for the
civil indemnity.
WHEREFORE, accused-appellants are found guilty beyond reasonable doubt of: (a)
slight physical injury in Criminal Case No.
73
VOL. 342, OCTOBER 4, 2000 73
People vs. Magtrayo

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