EN BANC

[G.R. Nos. L-27046 and L-27047. March 30, 1981.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

MARIANO ESTEBAN Y MOLINA and LUIS CAMAYA Y ROCHA ,
accused-appellants.

Solicitor General Estelito P. Mendoza Assistant Solicitor General

Bernardo P. Pardo and Solicitor Jose A. Janola for plaintiff-appellee.
Manuel S. Tonogbanua for accused-appellants.

SYNOPSIS

Successive gunshots were fired at a group of men who had just finished
their drinking spree in the yard of Maria Pascua. Antonio Maravilla, one of
the participants therein, was hit in the left shoulder and below the nape at
the top of his spinal column the bullet remaining in his chest. He stood up
and saw three (3) men about to leave the place two of whom he identified in
his res gestae statement before the police as Mariano Esteban and Tomas
Ablola, the latter holding an automatic rifle. Maria Pascua, who was sleeping
inside her house, was mortally wounded in the head by a bullet which
penetrated her house. A paraffin test made on Esteban's hands after his
arrest, found them to be "positive with nitrate specks.'' Two informations
were filed against Esteban and two unidentified persons, charging them with
murder for the killing of Maria Pascua and frustrated murder for the assault
on Maravilla. Six months later, the informations were amended to include
Luis Camaya as one of the accused. After a joint trial of the two cases, the
accused were found guilty as charged and were sentenced to death for the
killing of Pascua and to a straight penalty of 17 years and 4 months of
reclusion temporal for the assault of Maravilla. On Appeal, both appellants
set up the defense of alibi.
The Court ruled (1) that Camaya's complicity in the shooting was not
established beyond reasonable doubt, because the only eyewitness to the
shooting did not implicate him, and the prosecution's belated denunciation
lacked spontaneity and bore the earmarks of an afterthought or a frameup
induced by a grudge or other ulterior motivation; (2) that Esteban was
sufficiently identified by Maravilla in the latter's res gestae declarations as
one of the 3 assailants; (3) and that although Maria Pascua was not
Esteban's intended victim, he was guilty of murder under the rule of
aberratio ictus.
Camaya was acquitted. Judgment of conviction for murder against
Esteban was affirmed with modification as to indemnity but for lack of
necessary votes the death sentence was reduced to reclusion perpetua. For
the crime of frustrated murder, he was sentenced to an indeterminate
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 penalty.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; GAP IN PROSECUTION'S EVIDENCE

ENGENDERS DOUBT ON GUILT OF ACCUSED; CASE AT BAR. — The only
eyewitness to the shooting was Maravilla and he did not implicate at all
Camaya in his (Maravilla's) statement. That is the fatal weakness in the
prosecution's evidence against Camaya which engenders doubts as to his
guilt. If Maravilla recognized Camaya as one of the three assailants or as the
companion of Esteban and Mati, then why did not Maravilla name him as one
of the culprits in Maravilla's res gestae declarations made immediately after
the shooting. The prosecution was not able to explain that gap in its
evidence. It was only more than six months later or on November 15, 1963
when Maravilla implicated Camaya. That belated denunciation, which lacks
spontaneity, is not credible. It has the earmarks of an afterthought or a
frameup induced by a grudge or other ulterior motivation.
2. ID.; CRIMINAL PROCEDURE; ACQUITTAL; GUILT NOT ESTABLISHED
TO A MORAL CERTAINTY. — Due to the inconclusive evidence against
Camaya, he has to be acquitted. His guilt was not established to a moral
certainty. As enunciated by Alfonso X (El Sabio), King of Castille and Leon,
the compiler of Las Siete Partidas, "mas vale que queden sin castigar diez
reos presuntos, que se castigue uno inocente." (Cited in People v. Cunanan,
65 O.G. 9012, L-17599, April 24, 1967, 19 SCRA 769, 784.)
3. ID.; EVIDENCE; ALIBI; DEFENSE INCREDIBLE AND FLIMSY IN CASE
AT BAR. — Accused's alibi was that on the evening of the shooting he was in
his house which was six lots away from the scene of the incident. Though he
was supposed to work in the house with Camaya from eleven o'clock to six
o'clock in the morning, he did not work and he preferred to sleep because
Camaya failed to pay him the five pesos which he owed to the accused and
which the latter would use to pay his electric bill. That flimsy pretext is not
credible.
4. ID.; ID.; POSITIVE IDENTITY OF ACCUSED ESTABLISHED IN CASE
AT BAR. — That the accused was sufficiently identified by Maravilla in the
latter's res gestae declarations as one of the three assailants who fired the
shots that killed Maria Pascua and seriously wounded Maravilla has been
strengthened when the paraffin test proved that he fired a gun shortly
before his arrest. At the confrontation in the hospital, when Maravilla and the
policemen fingered him as the gunwielder, accused did not say anything.
Because of his silence the policemen confined him in jail instead of releasing
him.
5. ID.; ID.; MOTIVE TO KILL ESTABLISHED IN CASE AT BAR. —
Accused was infuriated by Maravilla's threat five hours before the shooting
that the dismissal of the homicide case against him for his complicity in the
killing of Lulu's husband was only provisional. Knowing Maravilla to be a
criminal character (he was charged with murder in 1962 in the Court of First
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 Instance of Pasay for having killed Zosimo Priego, Exh. 3-Deposition, p. 289,
Record), accused feared that Maravilla was capable of asking for the revival
of that homicide case. Hence, accused liquidated Maravilla to prevent the
resurrection of the homicide case.
6. CRIMINAL LAW; MURDER; KILLING QUALIFIED BY TREACHERY;
PENALTY IN PRESENCE OF ONE AGGRAVATING AND NO EXTENUATING
CIRCUMSTANCE, CASE AT BAR. — The killing of Maria Pascua, who was slain
while asleep, is murder qualified by treachery which absorbs nocturnity.
Dwelling should be appreciated as an aggravating circumstance. As no
extenuating circumstances were present, the penalty imposable upon the
accused is death.
7. ID.; ID.; LIABILITY FOR CRIME ALTHOUGH WRONGFUL ACT
DIFFERENT FROM THAT INTENDED; ABERRATIO ICTUS . — The fact that
accused intended to kill Maravilla and in the course of the assault
incidentally killed Maria Pascua makes him liable for murder just the same
because a person committing a felony is criminally liable although the
wrongful act done be different from that which he intended (Art. 4, Revised
Penal Code). This rule covers aberratio ictus or mistake as to victim.
8. ID.; FRUSTRATED MURDER; INDETERMINATE PENALTY IMPOSED
IN THE ABSENCE OF GENERIC MITIGATING AND AGGRAVATING
CIRCUMSTANCES. — Accused is guilty of frustrated murder as to Maravilla.
The trial court erred in imposing upon him a straight penalty of seventeen
years and four months. Accused is entitled to an indeterminate sentence the
maximum of which should be taken from reclusion temporal minimum and
the minimum from the range of prision correccional maximum to prision
mayor medium since no generic mitigating and aggravating circumstances
can be appreciated in connection with that offense.

DECISION

AQUINO, J : p

This is a review of the decision of the Court of First Instance of Rizal,

Pasay City Branch VII, dated October 11, 1966, convicting Mariano Esteban
and Luis Camaya of murder, sentencing them to death and ordering them to
pay solidarily to the heirs of Maria Pascua an indemnity of six thousand
pesos (Criminal Case No. 6058-P).
In the same decision, Esteban and Camaya were convicted of
frustrated murder with respect to the assault upon Antonio Maravilla. They
were each sentenced to a straight penalty of seventeen years and four
months of reclusion temporal. No indemnity was imposed (Criminal Case No.
6059-P). LLpr

In 1963, there resided in the vicinity of Protacio Street Extension and

Gamban Street (Bukid), Pasay City Antonio Maravilla (Landicho), 34; his
querida, Loreta Alega (Lulu); Mariano Esteban (Totoy), 42; Tomas Ablola
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 (Arbiola or Mati) (Exh. 3-Esteban, p. 290, Record; 16 tsn March 19, 1964) and
the spouses Maria Pascua and Apolonio Lozano. They were neighbors.
Luis Camaya, 27, used to reside in that vicinity. Later, he transferred to
2641 Zamora Street. Camaya, Esteban and Ablola called each other
compadre.
Sometime in 1961, the husband of Lulu Alega was killed. Four persons,
among whom were Esteban, Ablola and Camaya, were implicated in the
killing. Camaya was the alleged killer. The case was compromised. It was
agreed that the four accused would pay Lulu P1,500 as settlement of the
case (Exh. 3-Esteban, pp. 290-1, Record).
About three o'clock in the afternoon of May 1, 1963, Maravilla and Lulu
went to the house of Camaya to collect the sum of P47 as the balance still
due on the compromise settlement. They had an altercation. Camaya said
that Esteban would advance ("magaabono") the payment of the sum of P47
(pp. 334 and 337, Record; Exh. E-2, p. 227, Record).
At about six-thirty in the evening of that same day, May 1, Maravilla
repaired to the house of Esteban to collect the balance of P47. Esteban
promised to pay twenty pesos the next day. Maravilla reminded Esteban that
the criminal case was only provisionally dismissed and that nonpayment of
the balance might prejudice him. Esteban said that he would pay that
balance and then seek reimbursement from Camaya (Exh. 3-Esteban, pp.
290-291, Record).
Thereafter, Maravilla returned to the yard of the house of Maria Pascua
where he and other persons had been having a drinking spree. The yard was
inclosed by a mat and woven coconut leaves (See Exh. F, p. 229, Record).
At about seven o'clock in the evening, Maravilla saw Esteban and
Ablola or Mati passing by Maria Pascua's house but they did not come in and
did not take part in the drinking bout.
Then, at eleven o'clock, when Maravilla and his six companions had
finished drinking and were singing in the yard, successive gunshots were
fired at the group. Maravilla stood up and looked over the partition in the
direction where the shots originated. prLL

Maravilla saw three men about to leave the place, two of whom were
Esteban and Mati. The latter was holding an automatic rifle which looked like
a Thompson submachinegun and which he was handing to his companion
("nagaabutan sila").
At that juncture, Maravilla realized that he had been wounded in the
shoulder and below the nape at the top of his spinal column. Blood was
oozing from his wounds. He felt weak and dizzy. He told Ben Junior to call a
policeman.
The gunshots penetrated the house. Maria Pascua, who was sleeping
inside the house, was mortally wounded in the head by means of a metal
jacketed bullet (Exh. 1).
The policemen found three empty shells on the spot near the partition,
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 where Maravilla saw three intruders, and a slug inside the house near the
corpse of Maria Pascua.
Maravilla managed to get out of the house and emerged on the street
where he collapsed. He was found by the policemen sprawled at the corner
of M. de la Cruz and Protacio Streets. When he was asked as to who had shot
him, he identified his assailants as "sina Totoy Kangkong, sina Mate"
(referring to Esteban and Ablola) (117 tsn December 3, 1965).
Maravilla had an entrance gunshot wound on the left shoulder. The
bullet caused paralysis from the waist down, blocked his cervical canal and
injured his spinal cord and lungs and fractured his ribs. There was no exit
wound. The bullet remained inside his chest. (He was hospitalized for more
than fifteen months.) Without medical intervention, Maravilla would have
died because of those injuries.
Maravilla was brought to the Manila Sanitarium on that same evening
of May 1, 1963. He had difficulty in breathing. Patrolman Cayetano Cedilla,
who interviewed Maravilla at twelve-quarter in the morning, or about an hour
after the shooting, observed that the latter was on the threshold of death.
Cedilla took down Maravilla's dying declaration in the presence of two
patrolmen. It was thumbmarked by Maravilla (Exh. C, p. 223, Record).
In that statement (a res gestae declaration), Maravilla pointed to
Esteban and Mati as the gunwielders near the coconut palm who shot him at
around eleven-thirty in the evening. Maravilla said that earlier in the day he
had an altercation with Esteban (Exh. C).
After taking down Maravilla's statement, Patrolman Cedilla picked up
Esteban and brought him to the hospital where Maravilla, in the presence of
his mother, a patrolman and some nurses, fingered Esteban as his assailant
nicknamed Totoy. "Iyan nga, ho, si Totoy", Maravilla assured Cedilla. "Sila ho
ang magkasama nina Mate kanina" (12 tsn February 26, 1964; 115-117, 125
tsn December 3, 1965). prcd

A paraffin test was made on Esteban's hands on the following day at

the forensic chemistry division of the National Bureau of Investigation. They
were found to be "positive with nitrate specks" (Exh. H; p. 230, Record).
On May 3, 1963, or less than forty-eight hours after the shooting,
Special Counsel Carlos Rustia of the Pasay City fiscal's office filed in the
Court of First Instance two informations against Esteban and two unidentified
persons, charging them with murder for the killing of Maria Pascua and
frustrated murder for the assault on Maravilla.
About six and a half months after the incident, while Maravilla was
confined at the Saint Luke's Hospital, Patrolman Cedilla showed him the
photographs of Camaya and Ablola. Maravilla identified them as the
companions of Esteban on the night when he (Maravilla) was shot. The
assailants fired the shots when they were four to five meters away from
Maravilla (Exh. E, pp. 225-28, Record).
In December, 1963, or after Maravilla had executed his statement of
November 15, 1963, implicating Camaya as one of the three assailants (Exh.
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 F), the informations were amended so as to include him as one of the
accused (p. 8, Record of Criminal Case No. 6059-P for frustrated murder. No
copy of the amended information for murder is found in the record of
Criminal Case No. 6058-P for murder.)
Camaya was arrested on December 22 or 23, 1963 (Exh. 2, p. 19,
Record of Criminal Case No. 6059-P). At his arraignment on January 10,
1964, he pleaded not guilty.
The two cases were tried jointly by Judge Angel H. Mojica. As already
stated, the judgment of conviction was rendered by Judge Francisco de la
Rosa in 1966.
Case of Camaya. — His alibi was that at the time the shooting occurred
he was working in the city slaughterhouse located at Pinagbarilan Street,
Pasay City. The distance between that place and the house of Maria Pascua
could be traversed by walking in seven or eight minutes (64-65 tsn
September 22, 1965).
The next day Camaya learned from a pork vendor that his compadre,
Esteban, was implicated in the killing of Maria Pascua. That information
allegedly did not make Camaya apprehensive that the police would be
looking for him.
Certain circumstances may indicate that Camaya would most likely be
involved in the assault on Maravilla. Camaya was a friend or comrade of
Esteban and Mati (Mate) and he had some connection with the motive for
the liquidation of Maravilla. Camaya was accused of having taken part in the
killing of Lulu's husband in 1961.
A few hours before the shooting, he had a sort of altercation with
Maravilla and his common-law wife, Lulu, who made threatening remarks
against Camaya because of the latter's failure to complete the payment of
the indemnity or compromise settlement for the killing of Lulu's husband.
Camaya's alibi does not exclude the possibility of his having taken part in
the shooting of Maravilla.
Notwithstanding these circumstances, it cannot be said that Camaya's
complicity in the shooting was established beyond reasonable doubt.
It should be borne in mind that the only eyewitness to the shooting
was Maravilla and he did not implicate at all Camaya in his (Maravilla's)
statement (Exh. C). That is the fatal weakness in the prosecution's evidence
against Camaya which engenders doubts as to his guilt. LexLib

If Maravilla recognized Camaya as one of the three assailants or as the

companion of Esteban and Mati, then, why did not Maravilla name him as
one of the culprits in Maravilla's res gestae declarations made immediately
after the shooting?
The prosecution was not able to explain that gap in its evidence. It was
only more than six months later or on November 15, 1963 when Maravilla
implicated Camaya. That belated denunciation, which lacks spontaneity, is
not credible. It has the earmarks of an afterthought or a frameup induced by
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 a grudge or other ulterior motivation.
Consequently, due to the inconclusive evidence against Camaya, he
has to be acquitted. His guilt was not established to a moral certainty. As
enunciated by Alfonso X (El Sabio), king of Castille and Leon, the compiler of
Las Siete Partidas, "mas vale que queden sin castigar diez reos presuntos,
que se castigue uno inocente" (Cited in People vs. Cunanan, 65 O.G. 9012, L-
17599, April 24, 1967, 19 SCRA 769, 784).
Case of Esteban. — The factual complexion of his case is different from
that of his compadre, Camaya. Esteban's alibi was that he was in his house
at the time of the shooting. On that evening, he was supposed to work in the
slaughterhouse with Camaya from eleven o'clock to six o'clock in the
morning (Exh. 3-Esteban). Esteban's house was six lots away from the scene
of the shooting (3 tsn October 5, 1965).
But, according to his version, he did not work and he preferred to sleep
because Camaya did not pay him the five pesos which he owed to Esteban
and which the latter would use to pay his electric bill. That flimsy pretext is
not credible.
Esteban was sufficiently identified by Maravilla in the latter's res gestae
declarations as one of the three assailants who fired the shots that killed
Maria Pascua and seriously wounded Maravilla. The paraffin test proved that
he fired a gun shortly before his arrest.
At the confrontation in the hospital, when Maravilla and the policemen
fingered him as the gunwielder, Esteban did not say anything. Because of his
silence the policemen confined him in jail instead of releasing him.
Esteban was infuriated by Maravilla's threat five hours before the
shooting that the dismissal of the homicide case against Esteban for his
complicity in the killing of Lulu's husband was only provisional.
Knowing Maravilla to be a criminal character (he was charged with
murder in 1962 in the Court of First Instance at Pasay city for having killed
Zosimo Priego, Exh. 3-Deposition, p. 289, Record), Esteban feared that
Maravilla was capable of asking for the revival of that homicide case. So,
Esteban liquidated Maravilla to prevent the resurrection of the homicide
case.
Manuel S. Tonogbanua, counsel de oficio, who made an able
presentation of the case for the appellants, meticulously and conscientiously
scrutinized Maravilla's testimony and vehemently assailed his credibility.
Counsel contended that Maravilla could not have identified Esteban as
one of the assailants because the partition, which enclosed the yard where
Maravilla and his companions were drinking, had a height exceeding
Maravilla's height.
That contention is not correct. Maravilla testified that his height was
more than the height of the partition. He is six feet and one inch tall while
the height of the partition was only five feet and ten inches (7-8 tsn April 8,
1964; 87 tsn April 3, 1965; 6 tsn March 19, 1964).
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 Counsel stressed that Maravilla was already very inebriated when he
was shot and, therefore, he did not have sufficient consciousness to
recognize his nocturnal assailants who were about five meters away from
him. LexLib

It is true that Maravilla had imbibed much beer and gin but the fact is
that he was able to come out of the yard and he collapsed on the street
where a policeman extracted from him the statement that he was shot by
Totoy and Mati (referring to Esteban and Ablola). There is no reason to doubt
the veracity of the policeman's testimony on this point.
And that testimony signifies that Maravilla, in spite of his wounds and
his intoxication, still retained sufficient consciousness or awareness of what
had happened to him and had the capacity to articulate intelligently what
was in his mind.
We have painstakingly reviewed the evidence. We agree with the trial
court that Esteban was sufficiently identified by Maravilla as one of the three
assailants and that his guilt was established beyond reasonable doubt.
As to Maria Pascua, who was killed while asleep, the killing is murder
qualified by treachery which absorbs nocturnity. Dwelling should be
appreciated as an aggravating circumstance. As no extenuating
circumstances were present, the penalty imposable upon Esteban is death
(Arts. 64 and 248, Revised Penal Code).
The fact that Esteban intended to kill Maravilla and in the course of the
assault incidentally killed Maria Pascua makes him liable for murder just the
same because a person committing a felony is criminally liable although the
wrongful act done be different from that which he intended (Art. 4, Revised
Penal Code). This rule covers aberratio ictus or mistake as to victim.
As to Maravilla, Esteban is guilty of frustrated murder. The trial court
erred in imposing upon him a straight penalty of seventeen years and four
months. Esteban is entitled to an indeterminate sentence the maximum of
which should be taken from reclusion temporal minimum and the minimum
from the range of prision correccional maximum to prision mayor medium
since no generic mitigating and aggravating circumstances can be
appreciated in connection with that offense.
WHEREFORE, (1) the judgment of conviction as to Luis Camaya is set
aside. He is acquitted on the ground of reasonable doubt.
(2) The trial court's judgment convicting Mariano Esteban of murder
is affirmed with the modification that the indemnity which he should pay to
the heirs of the victim, Maria Pascua, is increased to twelve thousand pesos.
For lack of necessary votes, the death penalty imposable upon him is
commuted to reclusion perpetua. cdll

For the frustrated murder, Esteban is sentenced to an indeterminate

penalty of ten (10) years of prision mayor as minimum to fourteen (14) years
o f reclusion temporal as maximum, in lieu of the straight penalty of
seventeen years and four months of reclusion temporal, imposed by the trial
court. Esteban is further ordered to pay Antonio Maravilla an indemnity of
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 ten thousand pesos. Costs de oficio in the two cases.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion Jr.,
Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.

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