THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOVITO AGUEL, SILVERIO AGUEL AND RAMON JALIKO, DEFENDANTS, SHEM JAKOSALEM, DEFENDANT-APPELLANT.

In Our decision which was promulgated on May 19, 1980, We
affirmed in toto the judgment of the Circuit
Criminal Court of
Cebu City
in Criminal Case No. CCC-XIV-613-Cebu which reads as follows:

“WHEREFORE, the Court finds the accused Shem Jakosalem GUILTY beyond reasonable doubt of the crime of
Robbery with Homicide and applying the provisions of Article 294, paragraph 1
of the Revised Penal Code, and there being no mitigating nor aggravating
circumstance present in connection with the crime charged, the accused is
hereby sen­tenced to suffer the penalty of RECLUSION PERPETUA, to indemnify Aurora Ira the sum of P160, 000. 00 for the lost of money
and other valuables and for the death of Cristituto [Restituto] Ira to pay the heirs the sum of P12,000.00 with one-fourth of the costs.”

In the decision, We said, among other
things, the following;

“The appellant claims that evidence not available at the trial
was later discovered to the effect that it was not Virgilio
Ababon who drove the get-away taxi but one Sergio Carampotan.  Copies
of clippings from the “Morning Times” of Cebu City
dated November 8 and 4, 1972, marked as Annexes “A” and “B”
were sub­mitted as the ‘newly discovered evidence.’  Suffice it to say, the clippings are hearsay
and have no evidentiary value.  Moreover,
the ‘newly discovered evidence’ of November 8 and 4, 1972, should have been
immediately utilized as a possible basis for a new trial since the judgment
under appeal had not yet become final instead of submitting it as a ground for
acquittal in a brief dated May 20, 1974.”

Taking a cue from Our statement the
defendant-appellant filed a motion for new trial based on newly discovered
evidence on July 11, 1980.  We required the Solicitor General to comment
and he has submitted the following:

“Appellant anchors his motion for reconsideration and/or new
trial on newly discovered evidence on the broad ground of substantial justice.

“Appellant cites peculiar circumstances obtaining in his case
as exceptional so as to allegedly warrant a new trial if only to afford him the
opportunity to establish his innocence of the crime charged.

“Thus – sometime in November 1972, or two (2) months after
appellant’s conviction by the Circuit Criminal Court on August 31, 1972, the PC-CIS apprehended a gang of
robbers (Annexes “A” and “B”, Appellant’s Brief).

“On November 5, 1972,
Edilberto Campo executed his handwritten
extra-judicial confession (Annex “A” of Annex “A”, motion)
admitting participation in the La Moderna robbery
naming the other participants.

“On January 21, 1974,
Ramon Guevarra executed a handwritten extrajudicial
confession (Annex ”D” of Annex “A”; motion) admitting
participation in the La Moderna, naming his
confederates therein.

“On February 28, 1976,
Emiliano Paez executed an
extra-judicial confession (Annex “E” of Annex “A”, motion)
admitting participation in the robbery and named his other cohorts in the
heist.

“On December 2, 1975,
the District State Prose­cutor filed an information (Annex “B”,
motion) docketed as Criminal Case No. 
CCC-XIV-1151-Cebu for the same offense and involving the same offended
parties in Criminal Case No. XXX-XIV-613, Cebu, for which appellant was convicted, but with a diffe­rent set of
accused.  The Information reads:

‘PEOPLE OF THE PHILIPPINES,
Plaintiff,

– versus
–                                            CCC-XIV-1151-CEBU

EXEQUIEL CIBRIAN alias                                 Robbery with

WILLIAM CIBRIAN,                                            Homicide

RODRIGO DELUVIO,

ANECITO DELUVIO,

HECTOR HURTELANO,

RAMON (Baby) GUEVARRA,

RENATO (Tata)
ASEGURADO,

EDILBERTO CAMPO,

SERGIO CARAMPATAN,

MAGDALENO TIBGAO,

EMILIANO
(Boy) PAEZ,

Accused.

x – – – – – – – – – – – – – – – – – – – – – – – – x

AMENDED INFORMATION

The undersigned, District State Prosecutor, accuses Exequiel Cibrian alias William Cibrian, Rodrigo Deluvio, Anecito Deluvio, Hector Hurte­lano, Ramon
(Baby) Guevarra, Renato (Tata) Asegurado, Edilberto Campo, Sergio Carampatan,
Magdaleno Tigbao and Emiliano (Boy) Paez, of the crime
of Robbery with Homicide committed as follows:

That on or about the 9th day of June 1972, in the City of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with firearms, conspiring and
confederating together and helping one another, with the use of a motor vehicle, did there and then wilfully,
unlawfully and feloniously, with deliberate intent of gain, and by means of
violence and intimidation by holding up Mrs. Aurora Ira, the proprietor of the
store and Lydia Pilares, a customer who were then
inside the store, by pointing their guns at them, and after ordering them to
squat on the floor and to bow low and tying their hands and plastering her
mouth to prevent her from making an outcry, take, steal and carry away from La Moderna Jewelry Store located at Labucay
Building, Cebu City, assor­ted pieces of jewelries
and cash all amounting to P160, 000. 00 more or less, belonging to the spouses Restituto Ira and Aurora Ira, to the damage and prejudice
of the said owners in the said total sum; that on the occasion of the said
robbery and for the purpose of enabling them to take, steal and carry away the
articles above-mentioned, the herein accused, in pursuance of their conspiracy,
did then and there wilfully, unlawfilly
and feloniously and with evident premeditation and taking advantage of their
superior number, strength and arms, with intent to kill, treacherously attack,
assault and shot to death Restituto Ira, husband of
Aurora, with the use of a gun causing his death, and after which they fled with
the use of a motor vehicle in a get away.

That in the commission of the offense, it was attended by the
following aggravating circumstances, to wit:

1.     
That the crime was committed in
disregard of the respect due the offended party, on account of her sex;

2.     
That the crime was committed by a
band;

3.     
That the accused took advantage of
their strength and number;

4.     
That the crime was committed by
means of a motor vehicle.

CONTRARY TO LAW. ‘

“In a letter dated October
17, 1981, to the Clerk of Court of this Honorable Court, the Acting
Clerk of Court of the Circuit Criminal Court of Cebu
gave the following information
regarding Criminal Case No. CCC-XIV­.1151-Cebu:

“It appears further that in a 3rd Indorsement
dated July 10, 1978 of District State Prosecutor Arzadon
to the Chief State Prosecutor, ‘from the evidence consisting of sworn
statements of the witnesses and extra-judicial confessions of some of the accused in CCC-XIV-1151, the crime was
committed by said accused and no men­tion was made of the participation of Shem
Jakosalem.’

“Said 3rd Indorsement reads:

‘From the evidence consisting of sworn statements of the witnesses
and extra-judicial confessions of some of the accused, in the latter case
(CCC-XIV-1151), the crime was committed by said accused and NO MENTION WAS
MADE OF THE PARTICIPATION OF SHEM
JAKOSALEM and his three co-accused in the commission of the robbery for which Jakosalem
was charged and found guilty by Judge Cupin in
Criminal Case No. CCC-X1V? 613.

‘If, as claimed by Shem Jakosalem, he was
wrongly charged by the City Fiscal of Cebu and he was
unjustly convicted by Judge Cupin because he did not
commit the offense imputed to him, this matter should be looked into by the
Office of the Solicitor General who handles the side of the government in the
ap­pealed case of Jakosalem considering that during
the pendency of the appeal the case is subjudice. ‘ (Underscoring, words
capi­talized, in parenthesis, ours for emphasis; Annex “F” of Annex
“A”, motion) ‘

“The foregoing circumstances, we submit, happened after
appellant’s trial and conviction and while his case was pending before this
Honorable Court.  There was, therefore, no way
by which these developments could have been known by appellant
during his trial.

“It is our submission that the above circumstances constitute
newly discovered evidence which justify a reopening of this case to erase all
doubts, if any, relative to appellant’s guilt or innocence.

“It may, not be amiss to point out that while ‘according to Sgt. Josefino Pilapil, Head of the
Control Area Zone, Theft and Robbery Section, the basis of the police for pinpointing the accused was the information given by an informer, a
police character named Jolly Amameo alias Boy
Alias, who was killed a week after the appellant was arrested on
June 18, 1972, that the persons responsible for the robbery were Shem Jakosalem, a certain Umpad, Romeo Estrada alias Carlito, and Roberto Sastrillo alias
Boy’ (underscoring ours, pp. 4-6, Decision
dated May 19, 1980, SC), other persons different from the above were charged
aside from appellant, namely: Jovito Aguel, Silverio Aguel and Ramon Jalico who were
thereafter identified as the  ‘John Doe’
, ‘Peter Doe” and ‘Richard Doe’ in the original information.  The above named individuals
were subsequently arraigned and found innocent of the crime charged.

“It is also to be stressed that the issue of identification
assumes importance after taking into consideration the foregoing circumstances
coupled with the extra-judicial confession as well as the judicial admission of
Emiliano Paez that he was the one who shot Restituto
Ira.  It is axiomatic that, as basic and
elemental as proof of the essen­tial elements of the crime charged itself,
positive proof of the identity of the alleged offender is an indispensable prop
to any judgment of conviction for said crime.

“Delineating the criterion on this point, the Supreme Court
has very cogently declared –

‘x
x x The identity of
the offender, like the crime itself, must be proven beyond reasonable
doubt.  The question of identifica­tion
of an accused as the perpetrator of an offense might seem to be the simplest
that could possibly come before a court. 
But the fact is precisely the reverse. 
The question of identification
has proved itself over and over again,
by far, instead the most perplexing.  As one court has observed: 
There are few more difficult subjects with which the administration of
justice has to deal.  The
carelessness or superficiality of observers, the rarity of powers of graphic
description, and the different force with which peculiarities of form or color
or expression strike diffe­rent persons, make recognition or identifi­cation
one of the least reliable of facts testified to even by actual witnesses who have seen the parties in question x x x’ (People vs. Beltran, 61 SCRA 246, 250 citing Estate of
Bryant, 176 Pa. 309, 318, 35 Atl. 571, 577 cited in
Wall, Eye­witness Identification in Criminal Cases 1965 ed. ). ‘

For this reason, this Honorable Court has warned that –

‘The courts should exercise caution in weighing evidence of iden­tity.  As Wharton observed, under conditions that
generally surround the commission of a crime, there is sometimes a
predisposition to connect an accused with a crime on the basis at times of
fancied resemblances, depend­ing upon the prejudgment or bias of the declarant‘ (People vs. Jimenez, et al. 71 SCRA 186, 192).’

“It is noteworthy that when appellant was brought by the
police authorities to the residence of Mrs. Ira on July 15, 1972, the latter, after taking a look at him, told the
police that the former was not one of the robbers (p. 9, SC decision) although
later on she identified ap­pellants as one of the robbers with the explanation
that when appellant was brought to her, she was afraid to identify him because
she had no confidence in the per­son of Lt. Ponciano Gacho (p. 12, SC decision).

“If only to satisfy the requirement that the guilt of the
accused must be proved beyond reasonable doubt, appellant should be given the
leeway to prove his in­nocence.

“It has been held that the authority of the appellate court
over an appealed case is broad and ample enough to embrace situations as the
instant case where the court may grant
a new trial or retrial based on grounds other than those provided in Section 13
of Rule 124 or Section 2 of Rule 121. 
While Section 13, Rule 124 and Section 2, Rule 121 provides for specific
grounds for a new trial, i. e. newly discovered
evidence, and errors of law or irregularities committed during the trial,
Section 11 of Rule 124 which provides:

‘Power of appellate court on appeal. –
Upon appeal from a judgment of the Court of First Instance, the appellate court
may reverse, affirm, or modify the judgment and increase or reduce the penalty
imposed by the trial court, remand the case to the Court of First Instance for
new trial or retrial, or dis­miss the case.’

does not so specify, thereby leaving to the
sound dis­cretion of the court the determination, on a case to case basis, of
what would constitute meritorious cir­cumstances warranting a new trial or
retrial (Jose vs. CA, 70 SCRA 264).

“This Honorable Court, in the afore-cited case of Jose vs. CA,
Ibid, ruled that:

‘Surely, the Rules of Court were conceived and promulgated to aid and
not to obstruct the proper administration of justice, to set forth guidelines
in the dis­pensation of justice but not to bind and chain the hand that
dispense justice, for otherwise, courts will be mere slaves to or robots of
technical rules, shorn or judicial discretion.

‘Thus, admittedly, courts
may suspend its own rules or exempt a case from them for the purposes of
justice or, in a proper case, disregard them. 
In this jurisdiction, in not a few instances, this court ordered a new
trial in criminal cases on grounds not mentioned in the statute, viz: retraction of witness, negligence or incompetency of counsel, improvident plea of guilty,
disqualification of an attorney de oficio to
represent the accused in the trial court, and where a judgment was rendered on
a stipulation of facts entered into by both the prosecution and the defense.

‘Characteristically, a new
trial has been described as a new invention to temper the severity of a
judgment or prevent the failure of justice.’

“It is therefore, our position that ‘the rigid application of
the rules of procedure must bow to the overriding goal of courts of justice –
to render justice where justice is due – to secure to every individual all
possible legal means to prove his innocence of a crime of which he is charged’
(Jose vs. CA, supra).

CONCLUSION AND RECOMMENDATION

“WHEREFORE it
is respectfully recommended that the decision of this Honorable Court dated May
19, 1980 be set aside and the case be remanded to the court a quo for new trial and for the purpose of allowing appellant to present his alleged newly discovered
evidence. “

WHEREFORE, as prayed for, Our
decision of May 19, 1980, is hereby set aside and this case is hereby remanded
to the court a quo for new trial so that the accused can present
his alleged newly discovered evidence. 
No costs.

SO ORDERED.

Barredo, (Chairman), Aquino, Concepcion, Jr., De
Castro, Ericta, and
Escolin, JJ., concur.