PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANDRES LIWAG Y MORALES AND MARIO L. BOLAÑOS, ACCUSED, MARIO L. BOLAÑOS, ACCUSED-APPELLANT.

This is an appeal from the decision of the Regional Trial Court,
Branch XXXVI, Iriga City, which (a) found the accused Andres Liwag and Mario
Bolaños guilty of murder; (b) sentenced them to reclusion perpetua; (c)
ordered them to indemnify the heirs of the victim, jointly and solidarily, in
the amount of FIVE HUNDRED THOUSAND PESOS as actual and compensatory damages;
(d) to pay THREE HUNDRED THOUSAND PESOS as moral damages; and (e) to pay the
costs.

In the morning of September 9, 1979, prosecution witnesses Emilio
Cerillo and Domingo Hallare were inside the Margate Building repairing the
ricemill owned by accused-appellant Bolaños (TSN, April 11, 1983, p. 12). About five (5) meters away, witness Cerillo
saw appellant Bolaños hand a gun to accused
Liwag while talking to each other (TSN, April 11, 1983, pp. 16-19, 23). Moments later, they heard gunshots. Cerillo stood up from the dug-out of the machine where he
had been and saw accused Liwag with a gun, shooting at someone, whom he later
on identified as the deceased Ely A. Lee. Accused Liwag then went to the staircase and pointed his gun at Cerillo as he went up the
stairs of the Margate Building. Informed of the incident, Purita Margate Lee, wife of the deceased,
rushed to the ricemill and there she saw the victim lying on the ground in
fetal position, in a pool of his own blood. Purita cradled her husband and asked: “Daddy, who shot you?” In his dying words, the victim
uttered: “Si Mario” (TSN,
August 5, 1985, pp. 5 & 11). The
victim was taken to the hospital, but was pronounced dead on arrival.

Responding policemen rushed to the Margate Building and cordoned
off the area after having received reports that the gunman had gone inside the
building after the shooting. Appellant
met with the police officers and denied that the gunman was still inside the
building. However, after negotiations,
appellant agreed to look for the said gunman. One hour later, appellant informed the authorities that accused Liwag
was indeed there, and at the same time asked for another hour to convince the accused Liwag to surrender. After one hour, the accused surrendered to
the policemen. Accused Liwag was
brought to the Iriga City Police Headquarters accompanied by appellant Bolaños
(TSN, September 8, 1981, pp. 17-24).

Accused Liwag refused to give any statements to the police. Sworn statements obtained from several
witnesses, however, including Emilio Cerillo, Domingo Hallare, Roger Castañeda,
and Dionisio Orbon, implicated accused Liwag. Based on said statements, accused Liwag was detained.

Thereafter, the police ventured to conduct a search of the
Margate Building where the appellant and his family lived and where the gunman
had sought refuge after the shooting but accused-appellant refused to allow the
search, this time invoking the absence of a warrant therefor. One day after the shooting incident, or on
September 9, 1979, the police searched the Bolaños residence after having
obtained the proper search warrant. In
the course thereof, the lethal weapon was found inside the wall of the
bathroom, discreetly hidden behind a tile (TSN, June 4, 1985, pp. 2-16). It was a fully loaded .22 caliber Arminius
with Serial No. 34683, licensed in the name of, and admittedly owned by, appellant
Bolaños.

A ballistic examination was then conducted by the PC Crime
Laboratory on the said firearm. Five
(5) slugs which were recovered from different parts of the victim’s body during
the autopsy served as specimen slugs. These were compared with test slugs (bullets which were actually test-fired
from the gun recovered from the Bolaños residence). It was confirmed that the specimen slugs as well as the test
slugs were fired from the gun recovered from the Bolaños residence. In other words, the specimen and test slugs
were all fired from the same .22 caliber Arminius owned by appellant Bolaños.

On September 10, 1979, an Information for murder was filed
against accused Liwag.

On September 23, 1979, however, accused Liwag made a confession
before the Station Commander of Iriga City, claiming that it was appellant
Bolaños who had ordered the killing of Lee (TSN, August 13, 1981, pp.
5-8). On the same date, a sworn
statement to that effect was executed (Exhibit “R”, Original Records,
p. 15-16) by accused Liwag as follows:

“Liwag’s confession (Exhibit
“R”):

Q – Ano ang dahilan at binaril mo si Mr. Ely Lee?

A – Dahil nga po sa utos ni Kuya Mario Bolaños, at hindi po ako nakatanggi sa
dahilang ang aking familia ay nakatira sa lupa ng Nanay ni Kuya Mario sa
Batangas at ako naman ay dito sa kanya sa Iriga nagtatrabajo at kung hindi ko
iyon su­sundin ako at ang aking familia ay kanyang palalayasin at ako po ay
wala nang mapupuntahan at ako ay kanyang pina­ngakuan na siya ang bahala sa
akin.

x x x                      x
x x                 x x x

Q – Matapos kang sabihan ni Kuya Mario mo na
tirahin mo si Ely Lee ano pa ang ibang ginawa niya?

A – Iniabot sa akin ni Kuya Mario ang baril at
siya ay umalis na at umakyat na ng bahay at ng lalabas na si Mr. Ely Lee sa
loob ng bodega ito ay akin ng binaril.

x x x                      x
x x                 x x x

Q – Anong klaseng
baril ang ibinigay sayo ni Kuya Mario mo para gamitin mo sa pagbaril ki Mr. Ely
Lee?

A – Magnum 22 kulay itim walo ang lagayan ng
bala (8 shooter) de bola.

Q
–  Ano ang pagkakaiba sa baril na ginamit
mo at sa baril na ipinakita sa iyo ng pulis noong gabi ng Septiembre 9, 1979 na
nakuha ng pulis sa bahay ni Atty. Mario Bolaños?

A – Iyon po ang baril na ginamit ko sa pag­baril
ki Mr. Ely Lee.

x x x                      x
x x                 x x x”

On September 24, 1979, a re-enactment of the commission of the
crime was conducted under the supervision of Fiscal Malate. The re-enactment showed how
accused-appellant handed the murder weapon to accused Liwag (Exhibit
“S”, Original Records, p. 17) and how the latter shot the victim (Exhibit
“T”, Original Records, p. 18).

On February 19, 1980, an amended Information for murder was filed
charging accused Liwag as principal by direct participation and appellant
Bolaños as principal by inducement for the fatal shooting of Lee. It reads:

“That on or about the 9th day of September, 1979 at or about
9:45 o’clock in the morning, at San Roque, Iriga City, Philippines, and within
the jurisdiction of this Honorable Court, the said accused MARIO L. BOLANOS,
motivated by hate which he harbored against one Ely A. Lee, conspiring and confederating
with co-accused ANDRES LIWAG y MORALES, with intent to kill and without any
justifiable cause, and having induced and ordered the said co-accused Andres
Liwag y Morales to shoot Ely A. Lee, did then and there willfully, unlawfully
and feloniously shoot said ELY A. LEE with a .22 caliber Magnum revolver,
trademark Arminius, bearing Serial No. 346938, belonging to the said MARIO L.
BOLANOS, for several times, hitting said ELY A. LEE at the different parts of
his body, thus inflicting upon him injuries which directly caused his
instantaneous death.

“That the commission of the crime was attended by the
qualifying aggravating circum­stance of treachery and the generic aggravating
circumstances of evident premeditation and cruelty.

“That as a consequence of the illegal acts of the said
accused, the family of the victim suffered actual, moral and other form of
damages in such amount as may be proven in court.

“ALL ACTS CONTRARY TO LAW.” (Rollo, p. 101).

The records show that on the basis of the Amended Information,
accused-appelant Bolaños was arrested and detained, but was subsequently
released on bail. Upon arraignment,
accused Andres Liwag and appellant entered a plea of Not Guilty. In the course of the presentation of
evidence by the prosecution before the trial court, accused Liwag escaped from
jail.

The prosecution theorized that appellant’s grudge against the
victim Lee was the motive behind the killing. In this regard, the wife of the victim testified that appellant borrowed
twenty thousand pesos (P20,000.00) from the deceased to be used as an
investment for a business enterprise. Bad blood between appellant and the deceased ensued for failure of the
former to pay the sum owed and to render an accounting therefor. As a consequence, the victim often berated
appellant in public.

Seeking exoneration of
the appellant in the commission of the crime charged, the defense presented a
different version. According to
its witness Simeon Margate, father-in-law of both the victim as well as
appellant, the victim was fuming mad and was threatening the workers of
appellant Bolaños who were suspected by
the deceased as responsible for the loss of his two (2) empty softdrink
bottles. Witness Margate allegedly
cautioned the deceased against any such act, and even offered to pay for twice
the value of the lost empty bottles (TSN, November 20, 1981, pp. 2-11). Accordingly, the defense contends, the
shooting incident was the result of the confrontation between the victim Lee and
accused Liwag regarding the lost empty softdrink bottles.

In addition, appellant Bolaños also presented the testimony of
accused Liwag made during the preliminary investigation conducted by the City
Fiscal of Iriga. During the said
preliminary investigation, accused Liwag made a statement to the effect that he
(accused Liwag) was recanting his testimony dated September 23, 1979,
implicating appellant in the crime charged. A sworn statement of accused Liwag dated July 27, 1983, was also
presented, reiterating what had been alleged during the preliminary
investigation.

On March 29, 1989, the trial court rendered a decision convicting
the accused Andres Liwag and appellant Mario Bolaños of the crime of murder
attended by the qualifying aggravating circumstance of treachery and the
generic aggravating circumstance of evident premeditation and cruelty. Hence, this appeal.

In his brief, appellant assigns the following errors:

I.

“THE TRIAL COURT ERRED IN ADMITTING AND GIVING PROBATIVE VALUE
TO THE EXTRAJUDICIAL CON­FESSION OF ACCUSED ANDRES LIWAG IMPLICATING
DEFENDANT-APPELLANT MARIO BOLAÑOS, OVER THE VEHEMENT OBJECTION OF THE LATTER, IN THE COMMISSION OF THE CRIME
NOTWITHSTANDING THE FACT THAT SAID EXTRAJUDICIAL CONFESSION. EXHIBIT ‘R’, HAD BEEN REPEATEDLY REPUDIATED
BY THE DECLARANT AND THE LATTER HAD NEVER BEEN PLACED ON THE WITNESS STAND
DURING THE TRIAL OF THE INSTANT CASE.

II.

“THE TRIAL COURT ERRED IN NOT FINDING THE TESTIMONY OF EMILIO
CERILLO, ONE OF THE WITNESSES FOR THE PROSECUTION, THAT THE LATTER ALLEGEDLY
SAW DEFENDANT-APPELLANT MARIO BOLAÑOS HANDED TO ACCUSED ANDRES LIWAG THE FATAL WEAPON, A .22 CALIBER, ARMINIUS, WITH SERIAL NO. 346838, AS
AN AFTERTHOUGHT AND FABRICATED.

III.

“THE TRIAL COURT ERRED IN CONSIDERING AS CIRCUMSTANTIAL
EVIDENCE AGAINST THE DEFENDANT-APPELLANT MARIO BOLAÑOS THE LATTER’S ALLEGED
REFUSAL TO ALLOW THE POLICE AUTHORITIES OF IRIGA CITY TO SEARCH HIS HOUSE
WITHOUT SEARCH WARRANT AND TO ALLOW THE POLICE AUTHORITIES TO IMMEDIATELY GET
INSIDE HIS HOUSE AND IN REMAINING SILENT DURING THE PERIOD THE POLICE
AUTHORITIES WERE CONDUCTING THE SEARCH FOR THE FATAL WEAPON INSIDE THE HOUSE OF
DEFENDANT-APPELLANT MARIO BOLAÑOS.

IV.

“THE TRIAL COURT ERRED IN NOT DECLARING THE ISSUANCE OF SEARCH
WARRANT AS ILLEGAL; AND, THEREFORE, THE ALLEGED FATAL WEAPON, EXHIBIT ‘C’, WAS
ILLEGALLY OBTAINED AND INADMISSIBLE EVIDENCE AGAINST DEFENDANT-APPELLANT MARIO
BOLAÑOS.

V.

“THE TRIAL COURT ERRED IN FINDING THAT THE ALLEGED MOTIVE FOR
THE FATAL KILLING OF ELY LEE, THE VICTIM, WAS THE SUPPOSED STANDING GRUDGE
BETWEEN DEFENDANT-APPELLANT MARIO BOLAÑOS, TESTIFIED BY THE WIDOW OF ELY LEE,
PURITA MARGATE-LEE, WHEN IN TRUTH AND IN FACT, THE HARD EVIDENCE ON RECORD, WAS
THAT THE SHOOTING INCIDENT WAS PRECIPITATED BY ELY LEE’S BEING INCENSED AND
ANGERED ON SEPTEMBER 9, 1979 OVER THE LOST (sic) OF TWO (2) EMPTY BOTTLES OF
SOFT DRINKS FROM THE BODEGA LOCATED ADJACENT TO THE RICEMILL OF
DEFENDANT-APPELLANT MARIO BOLAÑOS WHICH LEAD (sic) TO THE CONFRONTATION BETWEEN ELY LEE AND ACCUSED ANDRES
LIWAG.

VI.

“THE TRIAL COURT ERRED IN CONVICTING DEFENDANT-APPELLANT OF
THE CRIME OF MURDER THERE BEING NO PROOF OF CONSPIRACY IN THE COMMISSION OF THE
OFFENSE BETWEEN THE LATTER AND ACCUSED ANDRES LIWAG.

VII.

“THE TRIAL COURT ERRED
IN CONVICTING THE DEFENDANT-APPELLANT MARIO BOLAÑOS ON THE BASIS OF FLIMSY,
SURMISES, UNWARRANTED PRESUMPTIONS AND CONJECTURES.” (Appellee’s Brief,
pp. 82-83, Rollo).

Well-settled is the rule that the extrajudicial confession of an
accused is binding only upon himself and is not admissible against his
co-accused. It is merely hearsay evidence as far as other
accused are concerned (People vs. Alegre (94 SCRA 109 [1979]). However, this rule is not without
exceptions, one of which provides that the extrajudicial confession of an
accused is admissible against his co-accused where the confession is used as
circumstantial evidence to show the probability of participation of the
co-accused in the killing of the victim (People
vs. Alvarez, 201 SCRA 364
[1991]; People vs. Vasquez, 113 SCRA 772 [1982]).

Appellant vehemently argues, however, that in a succeeding
affidavit executed by accused Liwag, the latter denied the involvement of
appellant in the commission of the crime.

The Court sees no merit in the argument. In the first place, accused Liwag managed to
escape from jail during the trial of the case and therefore cannot be
cross-examined as to the veracity of his affidavit of retraction. Just because one has executed an affidavit
of retraction does by no means imply that what has been previously said is
false or that the latter is
true. On the contrary, affidavits of
retraction can be easily secured from poor and ignorant witnesses, usually for
financial considerations and such being the case, said retractions are
exceedingly unreliable for there
is always the probability of their being
repudiated subsequently (People v. Mindac, et al., G.R. No. 83030, December 14,
1992; citing People v. Mangulabnan, 200 SCRA 611 [1991]; De Guzman v.
Intermediate Appellate Court, 184 SCRA 128 [1990]; People v. Clamor, 198 SCRA
642 [1991]).

More importantly, the extra-judicial confession of accused Liwag
was made with the assistance of counsel, Atty. Rudito Espiritu, whom the police
asked to assist the said accused. Under
the circumstances, Liwag’s earlier affidavit with the assistance of counsel implicating appellant Bolaños cannot
easily be set aside. More, Liwag’s
confession contained details which were corroborated on material points by the
witnesses for the prosecution in establishing the link of circumstantial
evidence which, among others, warrant the conviction of herein appellant.

Circumstantial evidence is the evidence of collateral facts or
circumstances from which an inference may be drawn as to the probability or
improbability of the facts in dispute (5 Moran, p. 17, 1980 ed.). Not only the prior and coetaneous actuations
of the accused in relation to the crime but also his acts or conduct subsequent thereto can be considered as
circumstantial evidence of guilt (U.S. vs. De Los Santos, 24 Phil. 329
[1913]). To warrant conviction in
criminal cases upon circumstantial evidence, such evidence must be more than
one, derived from facts duly proven, and the combination of all of them must be
such as to produce conviction beyond reasonable doubt (People vs. Tiozon, 198
SCRA 368 [1991].

Regarding the matter of the validity of the issuance of the
search warrant, we note that accused-appellant has not presented evidence to show that the same was improperly issued. In the absence thereof, the presumption is
that official acts were regularly performed. Accused-appellant has not presented evidence to overcome this
presumption, hence the presumption stands. Consequently, the murder weapon recovered from accused-appellant’s
bathroom during the search conducted at the residence of said accused?appellant,
is admissible in evidence. Furthermore,
even assuming arguendo that accused-appellant was able to prove that the search
warrant was invalid, and in view thereof, the murder weapon is inadmissible in
evidence, the fact of the recovery of the said weapon in accused-appellant’s
bathroom at his residence would still be admissible as part of the
circumstantial evidence against herein accused-appellant.

As correctly stated by the trial court, the confession of accused
Liwag with respect to the fact that accused-appellant was the one who handed to
him the murder weapon was corroborated by the testimony of witness Cerillo that
he saw accused-appellant give accused Liwag a gun immediately before the
shooting. Aside from this testimony of
witness Cerillo, there is no direct evidence that would link accused-appellant
to the crime. However, as earlier
stated, circumstantial evidence that would point to accused-appellant as having
taken part in the crime abound.

Thus, We see no reversible error committed by the trial court
when it considered the following as circumstantial evidence to prove the guilt
of accused-appellant Bolaños as principal by inducement:

“1.  The giving of the gun to Andres Liwag. Why should he give his gun to his co-accused
if he were not in conspiracy with him? x x x In his own words, the gun was inside the clutch bag inside a
travelling bag inside a locker. The
place where the gun was kept was quite secret and the locker was locked. So, if he did not give his gun to his
co-accused Andres Liwag, how then, x x x did the gun come into the possession
of Andres Liwag?

“2.  Why Bolaños refusal to allow the police
officers to capture Andres Liwag inside his residence and his asking for one
hour for him to find out if the culprit was inside his house and another hour
to talk to him to surrender? x x
x. Did he not also use the two hours to
conceal the instrument of the crime and give his instruction to Liwag?

“3.  Why his refusal to allow the police to search
his house for the gun without a search warrant?

“4.  Why his nonchalance while the police were
searching for the gun inside his residence? Is it not more natural to help in search if he had no feeling of guilt?

“5.  x x x why was the gun fully loaded when it was
found inside the walling of the bathroom despite its having been discharged of
its bullets after Liwag had fired them against the victim? x x x. Was Liwag also in possession of the bullets so that he was able to
reload the gun before he hid it in the hole between the wall, or was it not
Bolaños himself who reloaded the gun in order to conceal the fact that it had
been used?

“6.  The motive. x x x The testimony of Mrs. Purita Margate-Lee positively shows that
there was bad blood between the victim Ely Lee and the accused Mario Bolaños which
was the result of the jueteng venture, in which the victim always lambasted the
said accused even in public. The
humiliation and embarrassment caused the said accused by the victim must have
been enough reason for him to desire to kill the victim. Andres Liwag having stayed for a very short
time (about two weeks) in Iriga and known (sic) Ely Lee for such short duration
could not have easily nurtured such a desire. Bolaños assertion that Andres Liwag killed Ely Lee on his own x x x is
unbelievable. It implies that Andres
Liwag already had the gun in his possession when he was subjected to karate by
Ely Lee. Which again poses the
question: Did Liwag arm himself for the
confrontation with Ely Lee just because of the lost soft drinks of which he was
suspected to have stolen? And to
repeat, Fiscal Bolaños himself testified that his gun was placed inside a
clutch bag x x x and that it was not an easy matter for anybody to get the gun. Besides, there is no evidence to show that
Andres Liwag was hurt x x x in the hands of Ely Lee. If there was a con­frontation x x x how come the persons in the
ricemill were not able to hear or witness the same, considering that Cerillo
and Hallare were just a few meters away, repairing the screen?

“7.  The accused Andres Liwag being a ‘boy’ of
Mario Bolaños, a provincemate, and more especially because his family was living in a place owned by Bolaños
mother, shows that Bolaños had a great ascendancy over Andres Liwag that he
could exert sufficient influence upon the said accused to impel the latter to
commit the crime according to his instruction.”

The Court therefore agrees with the conclusion of the trial court
that accused Andres Liwag and accused-appellant Bolaños are guilty beyond
reasonable doubt of the crime of
Murder, for the fatal shooting of the victim Ely A. Lee. Accused Liwag is guilty as principal by
direct participa­tion, while accused-appellant Bolaños is guilty as principal
by inducement.

That the crime was attended by treachery is borne out by the
records. 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 especially to insure
its execution, without risk to himself arising from the defense which the
offended party might make (Art. 14, No. 16, Revised Penal Code). Treachery may exist even if the attack is
frontal if the same is sudden and unexpected (People v. Liston, 179 SCRA 415
[1989]). Accused Liwag, after being
instructed by accused-appellant, killed the victim with treachery, the details
of which he narrated in the affidavit he executed (Exhibit “R”),
thus:

“Pagharap ko po ki Mr. Ely Lee kinalabit ko lang ng kinalabit ang baril at hindi
ko po matandaan kung ilang beses ko pong kinalabit ang baril at kung saan ko
tinamaan si Mr. Lee. x x x.”
(Sinumpaaang Salaysay of Andres Liwag, 23 Sept. 1979, first par., p. 2).

Likewise, evident premeditation was present in the commission of
the crime. To appreciate the
circumstance of evident premeditation, it is necessary to establish the
following: (1) the time when the
offender determined to commit the crime; (2) the act manifestly indicating that
the culprit has clung to his determination; and (3) a sufficient lapse of time
between the determination and execution to allow him to reflect upon the
consequences of his act and to allow his conscience to overcome the resolu­tion
of his will had he desired to harken to its warnings (People vs. Gravino, 122
SCRA 123 [1983]). In the case at bar,
all requisites were present. Appellant
had sent for accused Liwag from Batangas ostensibly to gain an honest
living. But far from it. Moments before the tragic incident,
appellant was seen talking to accused Liwag and in the course thereof, handed a
gun to the latter. After the victim was
killed, accused Liwag was likewise seen running upstairs leading to the
residence of appellant Bolaños. This
notwithstanding, responding policemen were refused entry by appellant on the
lame excuse that the assailant did not seek refuge there. As it turned out, however, accused Liwag did
indeed hide inside the residence of appellant.

All told, and guided by the corroborative testimonies of the prosecution witnesses vis-a-vis
Liwag’s counselled confession, as well as the other circumstanstial evidence
convincingly linking appellant as principal by inducement to the commission of
the crime, the Court finds appellant guilty of the offense charged.

WHEREFORE, the
judgment of conviction is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.

Feliciano, (Chairman), Romero, Melo, and Vitug, JJ., concur.