THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DARWIN VELOSO Y MILITANTE, DEFENDANT-APPELLANT.

Automatic review of the decision of the Court of First Instance of
Camarines Sur finding the
accused Darwin Veloso y Militante
guilty of the crime of MURDER, the dispositive
portion of which reads as follows:

“WHEREFORE, the Court finds the accused Darwin Veloso y Militante, guilty beyond
reasonable doubt of the crime of MURDER with the attendance of five (5)
aggravating circumstances, and hereby sentences him to suffer the maximum
penalty of DEATH and to indemnify the heirs of the deceased, Jesus A. Diez, the sum of P12,000.00, Philippine Currency, as actual
damages; the sum of P15,000.00, Philippine Currency, as moral, compensatory and
exem­plary damages and to pay the costs of this suit.

IT IS SO ORDERED.”^[1]

It is of record that at about 8:00 o’clock in the evening of May
20, 1970, Andres Diez, a thirteen-year old lad from
Barrio Sto. Tomas, Camaligan,
Camarines Sur, was told by
his mother, Alberta Aguillon Diez,
to fetch his elder brother, Jesus, so that they could eat their supper.  Andres found his brother talking with some
persons in front of the store of Julian Dacian,
located at the corner of Sto. Tomas and San
Mateo Streets. 
Andres informed Jesus of his errand and both of them then left for home
with Jesus walking ahead, followed by Andres and the latter’s friend, Federico Agotilla.

On the way home, Jesus Diez encountered
three men, one of whom was carrying a ukelele and the
other, an attache case.  Jesus stopped before them and asked:  “From where are you boy?” Getting
no answer, Jesus inquired:  “Do you
understand Bicol?” The questions were obviously
resented by the three men for one of them said: 
“What if Bicol or Tagalog?”
and immediate­ly stabbed Jesus Diez with a
dagger.  Almost simultaneously, the other
two men fired at Jesus Diez several times.^[2]
Andres wanted to go to the aid of his brother, but was dissuaded by Federico Agotilla for fear that the armed men might turn against
them.  So, the boys hid behind a wall
until the men left towards the barrio chapel.^[3]

Upon hearing the gunfire, Andres Servidad,
the barrio captain went to investigate. 
While he was near the gate of the fence of their house, Servidad saw three men approaching, and as they came
abreast of him, he heard one of them say: 
“Ang hirap sa iyo, para
nakikiraan lang pinakikialaman ninyo.”
Noticing Servidad, the man pointed his gun at Servidad, demanding: 
“You are another?” Servidad raised
his two hands and said:  “Huwag kayo, pare, hindi ako nakikialam.”^[4]

On reaching the barrio chapel, the armed trio saw the jeep driven
by Herminio Rabina which
they commandeered at gun point and went to barrio Keburac.^[5]

Informed of the shooting incident, Wenceslao
Preconcillo, the chief of police of Camaligan, made an ocular inspection of the scene of the
crime and recovered therefrom four (4) empty .45 cal.
shells, one (1) empty .32 cal. shell and a .45 cal. slug.^[6]

An autopsy of the cadaver of Jesus Diez
disclosed that the victim sustained four (4) gunshot wounds of different sizes
and a stab wound in his abdomen.^[7]

The next day, May 21,
1970, the house of former Vice-Governor Felimon
Odiamar at Pacol, Naga City
was robbed by three persons on which occasion, Henry Odiamar,
the son of the said former Vice-Governor, was shot and killed.^[8]
Investigators subsequently learned that the accused Darwin Veloso
y Militante was one of those who participated in the
robbery and homicide.  Theorizing that
the robbery and the killing of Jesus Diez may have
been committed by the same group of persons, the investigators showed a picture
of Darwin Veloso^[9]
to the witnesses in the killing of Jesus Diez.  Upon seeing the picture, Andres Diez readily identified the person in the picture to be the
person who stabbed his brother Jesus Diez in the
evening of May 20, 1979.^[10]
And so did Catalina Asico.^[11]
Darwin Veloso was apprehended in Makati, Rizal
and brought to Naga
City.  Upon investigation, he confessed to the
robbery in the house of former Vice-Governor Felimon Odiamar and the killing of Henry Odiamar,
as well as to the shooting of Jesus R. Diez in the
evening of May 20, 1970, at
Barrio Sto. Tomas, Camaligan,
Camarines Sur.  He named Badong and
Toti as his companions in the killing of Jesus Diez.^[12]

As a result, an information charging Darwin Veloso
y Militante with the crime of murder was filed before
the Court of First Instance of Camarines Sur, committed as follows:

“That on or about the 20th day of May, 1970, at approximately 8:00 o’clock in the evening, in the barrio of Sto. Tomas, municipality of Camaligan,
province of Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, together with Badong Doe and Romy Doe who are still at large, cons­piring and
confederating together and mutually helping one another, with intent to kill,
taking advantage of nighttime, with the aid of armed men and also taking
advantage of superior strength to better accomplish their purpose, did then and
there wilfully and feloniously assault, attack, stab
and shot one Jesus Diez, thereby inflicting upon the
latter mortal wounds on the different parts of his body which directly caused
his instantaneous death.”^[13]

After trial, judgment was rendered on November 7, 1970 finding the accused guilty of
the crime of murder, attended by five (5) aggravating circumstances, and
sentencing him to suffer the maximum penalty of death.  It is for this reason that the case is before
the Court for review.

The attendant aggravating circumstances found by the trial court
are nighttime, abuse of superior strength, use of an unlicensed firearm, the
offense was committed with the aid of armed men, and that the accused is a
habitual delinquent and/or a recidivist.

Although the crime was committed at nighttime, nocturnity cannot be considered as an aggravating
circumstance in this case because it is not shown that the accused and his
companions purposely sought the cover of the darkness of the night to
consummate their evil designs.  The
record shows that the accused and his companions were on their way to rob the
owner of a ricemill (“molino“)
when they met by accident Jesus Diez who asked them
where they came from.  The meeting of the
accused and the victim was thus accidental and the attack was made on the
impulse of the moment as a sequence of the unexpected turn of events.

The use of an unlicensed firearm cannot also be considered to
aggravate the offense because it is not one of those enumerated as aggravating
circumstances under Article 14 of the Revised Penal Code.^[14]

Recidivism, as well, cannot be appreciated to aggravate the
offense since there is no allegation of recidivism in the information although
the prosecution made an attempt to prove the same.  Hereunder is what transpired in the court
below:

“FISCAL CAJOT:

Q    Are
you the same Darwin Veloso, the accused before the
Court of First Instance of Albay, Branch 3 in
Criminal Case No. 4056 for Assault upon an Agent of Person in Authority, in
which you were sentenced to suffer indeterminate penalty of four (4) months and
one (1) day arresto mayor, to 3 years, 6 months and
21 days of prision correccional,
and to pay a fine of P100.00 with subsidiary imprisonment in case of insolvency
and to pay the cost, which decision dated July 8, 1966 is marked Exhibit B and
attached in Criminal Case No. 110 of Branch 3 of this Court?

“ATTY. ALFORTE:

That is not alleged in
the information, we object to the question, and they are not supposed to prove
anything not alleged in the Information.

“COURT:

That is too late now.

“FISCAL:

To test the credibility
of the witness if he is truthful.

“COURT:

For the credibility
only.

“WITNESS:

Yes, sir.”^[15]

In U.S. vs. Tieng Pay,^[16] the
Court ruled that if there is no allegation of recicivism
in the complaint or information, it would be error for the trial court to allow
evidence on such fact over the objection of the defendant.

For this same reason, the special penalty for habitual delinquency
cannot be applied.  Like recidivism,
habitual delinquency must be alleged in the information and should be specific
and detailed.  A general statement of
habitual delinquency is not sufficient. 
The dates of the commission of the previous crimes, of the last
conviction or release, and of the other previous convictions or release must be
alleged.^[17]

The circumstance of abuse of superior strength qualified the
crime to murder.  There is abuse of
superior strength because the accused and his two companions, all of them armed
with deadly weapons, attacked the deceased together and took advantage of their
greater number and greater power to overwhelm their unarmed victim.^[18]
Under the circumstances, We can no longer consider as present the aggravating
circumstance that the crime was committed with the aid of armed men.  From the evidence of record, the attack on
the victim was committed with treachery. 
While it is true that treachery is not alleged in the information, it
can still be considered as a generic aggravating circumstance.18a

The crime committed is murder, qualified by abuse of superior
strength, and with the aggravating circumstance of treachery not offset by any
mitigating circumstance.

Counsel de oficio assails
the trial court for relying upon the testimony of Andres Diez
and Roque Custodio to
establish the identity of the accused as the perpetrator of the crime.  Counsel de oficio
impugns the testimony of Andres Diez be­cause of his
relationship with the deceased Jesus Diez; his age,
and that his assertion is contrary to the natural course of human events.  Counsel cites a portion of the testimony of
this witness which allegedly makes the entire testimony unworthy of belief.

Mere relationship, however, is not sufficient to destroy the
testimony of a credible witness, especially where there is no showing that this
witness has testified merely by reason of relationship or alleged interest in
the case other than a desire to see that justice is done.  In other words, when there is no showing of
improper motive on the part of witnesses for testifying against the accused,
the fact that they are related to the victim does not render their clear and
positive testimony less worthy of full faith and credit.19
Here, no such improper motive has been established.

With respect to his age, We find that although Andres Diez was only thirteen (13) years old when he testified,
his simple and straightforward testimony appears to be sincere and honest and
indicative of his intelligence and capacity to perceive and make known his
perceptions.  His testimony is not
punctured with serious inconsistencies as to lead one to believe that he was
coached.  His assertion claimed to be
contrary to the natural course of human events by counsel de oficio is a trivial matter and cannot be considered
an attempt to distort the truth.

In the case of Roque Custodio, this witness testified that three (3) armed men
boarded their jeep near the barrio chapel of Sto.
Tomas, Camaligan, at about 8:00 o’clock in the evening of May 20, 1970, and directed the driver of the jeep
to proceed to barrio Keburac, at gunpoint.  This witness further stated that he did not
recognize any of the three (3) men as it was dark.20

Indeed, it cannot be gainsaid that Roque
Custodio did not identify the accused to be one of
those three (3) persons who killed Jesus Diez in the
evening of May 20, 1970 in
barrio Sto. Tomas, Camaligan,
Camarines Sur.  But, the judgment of conviction is not based
solely upon the identification of the accused made by Andres Diez and/or Roque Custodio.  The
identity of the accused has also been established by the uncontested testimony
of Catalina Asico, as well as the defendant’s
extrajudicial confession.  Catalina Asico declared that she was cooling herself in their yard
on that fateful night when he saw Jesus Diez in the
street, in front of their house, talking with three (3) persons, one of whom
she later named to be the accused Darwin Veloso y Militante.  She heard
Jesus Diez ask: 
“From where are you boy?  Do
you understand Bicol?” When one of the trio
exclaimed angrily:  “What if Bicol or Tagalog?” she
interjected, saying:  “Noy, just talk it over,” after which she turned to go
to their house.  No sooner had she turned
her back than she heard gunfire from the street.21

Counsel also contends that the trial court erred in finding that
a conspiracy existed in the killing of Jesus Diez.  Counsel did not elucidate on this statement,
but We suppose that counsel has probably in mind the prosecution evidence that
the accused stabbed the deceased in the abdomen and the testimony of the
medical examiner that said stab wound is not fatal,22
so that in the absence of a conspiracy, the accused should be held responsible
only for the consequences of his own act.

If this is what counsel has in mind, the contention is without
merit because the evidence clearly shows a unity of purpose and concert of
design since the companions of the accused almost simultaneously fired at the
deceased after the accused, who apparently resented the questions of the deceased,
stabbed the deceased in the abdomen and, thereafter, the accused and his
companions left the scene of the crime together to commit another crime the
following night.

Counsel further contends that the prosecution failed to establish
the motive or motives of the accused in committing the crime, which failure is
fatal to the case for the prosecution.

Motive, as distinguished from criminal intent, is not an
essential element of a crime, and, hence, need not be proven for purposes of
conviction.23
Motive is essential to conviction in murder cases only when there is doubt as
to the identity of the culprit,24 something which does not obtain in
this case as the accused Darwin Veloso y Militante was positively identified by the prosecution
witnesses, Andres Diez and Ca­talina Asico.

There is a statement that the accused is “a poor man, who
because he has no means to vindicate his rights became not only a victim of
circumstances but was also denied a fair trial resulting in his conviction of
the crime of murder and the imposition of the maximum penalty of death.”25

As stated by the Solicitor General, this assertion is
preposterous and with absolutely no basis in fact since the record very well
shows that the accused was attended by counsel and was substantially given a
fair trial in the court below.

The information filed in this case was ill-prepared.  There are a number of important and necessary
allegations which the fiscal did not make which restricted the prosecution in
the presentation of its evidence during the trial of the case.

WHEREFORE, the accused is found guilty of murder qualified
by abuse of superior strength, with the aggravating circumstance of treachery,
and is hereby sentenced to DEATH, to indemnify the heirs of Jesus Diez in the amount of P12,000.00 and to pay the costs.

Let a copy of this decision be furnished the Minister of Justice
so he may take note of the actuations of the prosecutor concerned.

SO ORDERED.

Teehankee, Barredo,
Makasiar, Concepcion, Jr.,
Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.

Fernando, C.J., based on the principle that every element of an
aggravating circumstance should be as clearly proven as the offense itself, he
is unable to concur in the view that the existence of alevosia
should be considered in meting out the penalty. 
The appropriate sentence for him then is one of reclusion perpetua.

Antonio, J., took no part being the Solicitor General at the time.

Aquino, J., concurs. The confession, Exh. E, corroborated
by evidence of the corpus delicti leaves no
room for doubt as to the guilt of the accused.

Santos, J., on leave.

Abad Santos, J., took no part.

^[1]
Record, p. 106.

^[2]
p. 10, t.s.n., Cipriano.

^[3] Exh. 1-A, p. 13, Orig. Record; also p. 38, t.s.n., Bulao.

^[4]
p. 13, t.s.n., Brazal.

^[5]
pp. 68-69, t.s.n., Bulao.

^[6]
p. 17, t.s.n., Brazal.

^[7] Exh. A, p. 2, Orig. Record.

^[8] Exh. E, p. 38, Orig. Record.

^[9] Exh. C, p. 36, Orig. Record.

^[10]
pp. 31-32, t.s.n., Bulao.

^[11]
p. 15, t.s.n., Cipriano.

^[12] Exh. E, p. 38, Orig. Record.

^[13]
p. 28, Orig. Record.

^[14]
People vs. Zapartero, L-31960, Aug. 15, 1974, 58 SCRA
451.

^[15]
p. 29, t.s.n., Brazal.

^[16]
42 Phil. 212.

^[17] Aquino, The Revised Penal Code, 1976 ed., Vol. 1, p. 615.

^[18]
People vs. Boyles, L-15308, May
29, 1964; 11 SCRA 88.

18a People vs. Collado,
60 Phil. 610.

19 People vs. Ricaplaza,
L-25856, April 29, 1968, 22
SCRA 374; People vs. Malilos,
L-16568, July 29, 1968, 24 SCRA 133; People vs. Alcantara,
L-26867, June 30, 1970, 33 SCRA 812.

20 p. 68, t.s.n., Bulao.

21 pp. 10-11, t.s.n., Cipriano.

22 p. 8, t.s.n., Bulao.

23 People vs. Ramponit,
62 Phil. 248; People vs. Caggauan, 94 Phil.
118.

24 People vs. Verzo,
L-22517, Dec. 26, 1967, 21 SCRA 1403.

25 p. 3, Appellant’s Brief.