PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERMINIO TAACA AND REGALADO TAACA, ACCUSED-APPELLANTS.

This is an appeal from the
decision*
of the then Circuit Criminal Court, First Judicial District, Tuguegarao, Cagayan in Criminal
Case No. I-100 promulgated on September 21, 1972, finding Herminio Taaca and Regalado Taaca guilty of the crime of murder and sentencing each of
them to suffer the penalty of reclusion perpetua
and to indemnify the heirs of the deceased, the dispositive
portion (Rollo, p. 40) of which reads, as follows:

“WHEREFORE, this Court
finds the accused, Herminio Taaca
y Arellano and Regalado Taaca
y Barcena, after trial on the merits, GUILTY beyond
reasonable doubt as co-principals in the crime of Murder, qualified by
treachery, and in accordance with law, sentences each of them to suffer the
penalty of RECLUSION PERPETUA, or life imprisonment, with the
accessories of the law, to jointly and severally indemnify the heirs of the
deceased Alfredo Gabuat in the sum of TWELVE THOUSAND
PESOS (P12,000.00) plus EIGHT THOUSAND PESOS (P8,000.00) as moral and exemplary
damages, without subsidiary imprisonment in case of insolvency, and to pay the
costs of this action.”

The facts of the case as
found by the trial court, are as follows:

“At about 5:30 p.m. of June 29, 1971, the accused Herminio
Taaca, and Regalado Taaca, together with Juanito Alipio and Adriano Cabael,
dropped at the house of the deceased victim, Alfredo Gabuat,
at Barrio Tabbac, Buguey, Cagayan.  Alipio and Cabael arrived first
and the two Taacas came a half-hour later.  They sat on benches in front of Gabuat’s ricemill (camarin) and conversed with Gabuat
(Exh. ‘B-5’). 
The visitors asked for wine and cigarettes from Gabuat
but when he answered that there were none in his store which had been closed a
month before, they gave money to Gabuat’s son.  Jun, to buy them at another neighboring store
owned by Narding (Exh.
‘I’).  After the purchaser arrived, the
visitors including the two accused drank the wine (Cruz de Oro
gin and coke) and smoked the cigarettes. 
The conversation was normal and ranged from lumber to asbestos roofing.

“The wife of Alfredo Gabuat, Caridad Arellano, was
then in the kitchen adjoining the main house preparing supper for the
family.  Before going there she told her
10-year-old son, Melvin, to stay and watch his father, because Gabuat had just killed one Santiago Tabisola
less than a month before on June 20, 1971.  Melvin
sat on the stairs leading from the porch or balcony to the second storey and
watched his father and the visitors.

“Around 6:00 p.m., Alipio and Cabael left and went towards the bridge along the Pattao-Bineg Road (Exh.
“2”).  The two Taacas, Herminio and Regalado, stayed behind and continued talking with Gabuat.  Herminio was then carrying a gun, about one meter long,
which he carried tucked to his right waist with the barrel protruding at the
shoulder.  Regalado
was not carrying a firearm.  Caridad Gabuat then called her
husband to eat but he told her and the other children to go ahead.  She then fed her other children excluding
Melvin, and ate supper herself, after which she told her children to carry some
plates of food to the main house for their father.  She then went back to the kitchen to close
the windows and doors thereat.

“Down in front of the camarin, the two Taacas bade
goodbye to Gabuat and Gabuat
then went up the five-rung stairs followed 1-2 meters behind by his son
Melvin.  When both had reached the
balcony and while Gabuat was opening the door to the
main house, Melvin heard a gun report and looking back, saw Herminio
at a nearby post pointing a gun in his father’s direction.  Herminio then ran
away towards the bathroom where Regalado was hiding
and they ran together towards the south with Regalado
in the lead.

“When she heard the gun
report, Caridad Gabuat was
still in the kitchen and upon peeping out of a window saw Regalado
running southwards with Herminio following him with a
gun in his hands.  She called for her
husband and not receiving any answer, called for help.  Her brothers then arrived and told her that
her husband was dead already, after which she did not know what happened to
her.  Melvin, on the other hand, after
seeing his father shot, heard him say in the Ilocano
dialect ‘be humble, son’ or ‘be patient son’, and after recovering from his
shock jumped down from the balcony and ran to the house of his uncle.  On the way, he saw the two Taacas run southward.” (Decision, pp. 6-8)

On February
28, 1972, Herminio Taaca alias Terio and Regalado Taaca alias Dado, were charged with the crime of Murder,
defined and penalized under Article 248 of the Revised Penal Code in an
information filed with the then Court of First Instance of Cagayan
alleging:

“That on or about June
29, 1971 in the municipality of Buguey, province of Cagayan, and within the jurisdiction of this Honorable
Court, the said accused Herminio Taaca
alias Terio and Regalado Taaca alias Dado, armed with a gun, conspiring together and
helping each other, with intent to kill, with evident premeditation and with
treachery, did then and there wilfully, unlawfully
and feloniously assault, attack and shoot one Alfredo Gabuat,
inflicting upon him gun shot wound on his body, which wound caused his
death.” (Record, p. 23).

In view of the fact that
the docket of the Court of First Instance of Cagayan
was clogged at that time, the records of the case was transferred to the
Circuit Criminal Court, First Judicial District, Tuguegarao,
Cagayan together with the records of other criminal
cases (Rollo, p. 24). 
Upon arraignment, the accused pleaded not guilty of the crime charged
(Record, p. 30).

The prosecution presented
four (4) witnesses:  Dr. Fortunato Tacuboy, Municipal Health
Officer of Buguey, Cagayan:  Jovito Macabangon, Chief of Police of Buguey;
Caridad Arellano Gabuat,
widow of the victim; and Melvin Gabuat, son of the
victim.

One of the principal
witnesses of the prosecution, Caridad Arellano Gabuat, widow of the deceased, testified that at around 6:00-6:30 p.m. of June 29, 1971, Herminio Taaca and Regalado Taaca came to their house in Tabbac,
Buguey, Cagayan.  She pointed in court to the person seated at
the right who identified himself as Terio (Herminio) Taaca and to the one
seated at the left side, who gave his name as Regalado
Taaca as the persons she was referring to.  She was then at the kitchen when these
visitors asked for wine.  There being no
wine in the house, her husband sent their son, Jun, to buy one bottle.  She saw them drinking but not her
husband.  One of them also ordered for
cigarettes.  She went back to the kitchen
and called her husband to eat but the latter told her and the children to go
ahead because he was still conversing with the visitors.  While they were having their meal, she
instructed the children to bring the food of their father upstairs.  She then closed the door and window of the
house, but upon remembering that she forgot to cover the sugar, she started to
open the door again.  It was then that
she heard a gunshot and she called for her husband.  When he did not answer, she shouted for
help.  Her brothers came to her aid, and
when she was told that her husband was already dead, she did not know anymore
what happened to her.

Asked how far was she from
the two accused and her late husband when she heard the gun report, the witness
requested for a piece of paper and made a sketch of the premises (Exhibit
“B”) indicating among others, the kitchen, the house, the doors of
the house, the porch, the location of the chairs and benches.  She likewise indicated the exact place where
her husband was shot, the post behind which the accused were supposed to be
hiding and from which witness saw them running, the place where witness was
when she heard the gun report and the place where the two accused were drinking
wine prior to the shooting.

Caridad admitted that her husband killed Santiago Tabisula one month prior to his death (TSN, July 6, 1972,
pp. 8-37).

On cross examination, Caridad stated that aside from the two accused, they had
other visitors.  They were Juanita Alipio and Andring Cabael.  But these
two left earlier before the shooting occurred. 
She also stated that she saw a long gun tucked at the buttocks of Terio Taaca when the latter was talking
with her husband.  She admitted, however,
that she did not actually see the two accused shoot her husband (TSN, July 6,
1972, pp. 38-46) and on clarificatory questions from
the court, she admitted that she did not actually see her husband going upstairs
to open the door of the house.  It was
her son who told her about it just after the incident (Ibid., pp.
53-54).

On redirect examination,
witness Caridad clarified that Herminio  and Terio Taaca are one and the same person and  that 
the other accused she was referring to was Regalado.  She clarified further that she saw only one
gun which was carried by Terio but accused Regalado was not holding or carrying any firearm (TSN, July
17, 1972 pp. 52-53).

The testimony of the widow
(Caridad) was fully corroborated on all material
points by her son, the eleven-year-old Melvin Gabuat,
who saw the shooting because he was following behind the victim, his
father.  Melvin testified that he and his
father were already in the balcony and his father was opening the door of their
house when Terio pointed the gun at the latter and
shot him.  His father was not able to do
anything except advise his son “Agsingsingpet ka
barok” which means be humble.  On the other hand, the two accused ran
southward.  Melvin positively identified
in court the two accused, Terio and Regalado (TSN, July 10, 1972, pp. 27-34).

On cross examination,
Melvin, like his mother admitted that there were two other persons who arrived
at their house besides the accused.  They
were Juanito Alipio and Andring Cabael but both of them
left earlier than the accused, and before the incident occurred (TSN, July 10,
1972, pp. 36-37).

On questions from the
court, Melvin explained that he was immediately behind his father when the
latter pushed the door of the balcony and while his father was pushing the
door, he looked back and saw accused Herminio alias Terio shoot his father.

From the testimony of the
witness, it can be gathered that the visit of the two accused was originally a
peaceful occasion, where his father and the two accused were sitting close
together while the latter were drinking wine. 
Melvin was sitting at the stairs where he was instructed by his mother
to stay and watch his father.  He was
listening to their conversation about the merits of asbestos roofing.  Their voices were normal with no sign of
quarreling.  However, while the two
accused were conversing with his father, he noticed that Terio
had a gun, less than a meter in length, tucked at his waist with the barrel
protruding (TSN, July 10, 1972, pp. 43-51).

The witness demonstrated
the relative positions of his father when he was shot and of the two accused
and stated that he was at a distance of two meters from his father when the
latter fell (Ibid., pp. 51-52).

More importantly, the testimonies
of both mother and son were fully corroborated by Dr. Tacuboy,
the Municipal Health Officer of Buguey, Cagayan since 1960, who conducted in Barrio Tabbac, a post-mortem examination on the body of the
deceased Alfredo Gabuat which he reduced in writing
and marked Exhibit “A”, (Record, p. 2).  His findings as stated in his medical certi­ficate
is that the victim suffered a “gunshot wound, through and through,
entrance wound 0.3 inch in diameter, with collar contusion, tissues invaginated, located at the mid portion of the right
scapular region, posterior portion of the body: 
exit wound 0.75 inch in diameter, tissues everted,
located at mid basal portion of the neck, anterior point:  trajectory of the bullet from the back (right
scapular region) direct obliquely upwards, forward to the left.”

He confirmed that the
gunshot wound was caused by a rifle bullet and that the point of entry is at a
lower place than the point of exit, which means that judging from the location
of the entrance wound and the exit wound, the assailant at the time of the
commission of the crime was probably below or at a lower elevation than the
victim.  His finding that the
“trajectory of the bullet from the back (right scapular region) directed
obliquely upwards, forward to the left,” in relation to the body of the
victim, means that the entrance of the wound was at the back scapular region
lower and it is directed obliquely upwards to the left because it is deflected
to the left side of the victim.  It is
possible, according to the witness, for the bullet prodding through the body of
the victim, to hit a specific bone causing the trajectory of the bullet to run
obliquely.  In answer to questions of the
Court, witness clarified that if there had been a deflection, there could have
been a high velocity of the bullet.  He
probed the wound with a stick from the entrance to the exit and can say that
there is but a slight deflection by hitting the small bones at the side of the
vertebrae.  The bullet which is a .30
caliber bullet of a rifle or carbin lodged on the
beam of the house where it was extracted by the police.

According to the witness,
the cause of the victim’s death was shock and hemorrhage due to gunshot wound and
be could not have survived despite proper medical attention because death was
sudden (TSN, July 6, 1972, p. 4).

On question by the Court,
the witness further testified that the body of the victim was already inside
the room of the house when he first saw it; that when the victim was shot he
was facing east; that he was not going upstairs, otherwise the wound would be
on the left scapular; that the victim has no other injury; that the victim did
not smell of any intoxicating liquor; and that the estimated time of the death
of the victim based on his examination of the body was around 7:00 to 8:00 p.m.
of June 29.  He conducted the post mortem
examination the next day at 11:45 a.m. for about forty minutes.  (TSN, May 17, 1972, pp. 22-24).

Jovito Macbangon testified
that he was Chief of Police of Buguey, Cagayan on June 29, 1971.  On
that particular day, at 8:30 p.m. the death of Alfredo Gabuat
was reported to his office by Councilman Arellano of Buguey,
Cagayan.  He
proceeded immediately with Councilman Arellano and others to the scene of the
crime which is at Tabbac, Buguey,
Cagayan.  He
reached Tabbac on the same night and proceeded
immediately to the house of the victim where 
they found the body of Alfredo Gabuat near the
gate of the house.  The body was lying
flat.  During his investigation, he found
out that the victim had only one wound at the back protruding at the side of
the neck.  He was informed by the
Councilman that it was the accused, Herminio Taaca and Regalado Taaca who shot Alfredo Gabuat.  He invited the widow and the son to go to his
office for further investigation.  The
investigation was conducted by Policeman Emilio Tadili
(TSN, July 10, 1972, pp. 2-6).

The evidence for the
defense consisted of the testimonies of 
Emilio Tadili, Juanito
Alipio, Silvestre Belen, Adriano Cabael,
Herminio Taaca and Regalado Taaca.

Emilio Tadili,
the police Sergeant of Buguey, Cagayan
at the time, testified that on orders of his Chief of Police, he investigated
individually, Juanito Alipio,
Adriano Cabael, Herminio Taaca and Regalado Taaca who allegedly dropped at the house of the late
Alfredo Gabuat before the latter was shot to
death.  All of them denied participation
in the killing but his investigation was not reduced to writing.  He likewise investi­gated the widow Caridad Arellano Gabuat and her
son Melvin and his investigation of the two complainants were reduced to
writing.  He identified the sworn
statement of Caridad Arellano and confirmed that he
asked the question:  “Do you know of
any cause why they shot your husband?” and the answer of the widow was
“I believe that those persons who liquidated my husband were hired by the
relatives of the late Santiago Tabisola who was
stabbed to death by my late husband sir.” Afterwards he complied with the
instructions of the Chief of Police to prepare the corresponding complaints
against Herminio Taaca and Regalado Taaca and filed the
complaint in court.

He also went to Naguillian with several policemen to apprehend Berlino Caliso, whom he
investigated at the police department. 
His investigation was reduced to writing which he identified in court
and the contents of said testimony were relayed to the widow.  He and other policemen exerted efforts to
ascertain the whereabouts of Orlando Tactac and Tinoy Tabisola who were mentioned
by Berlino Caliso as the
real perpetrators of the killing.  Tinoy Tabisola was at large and
was not apprehended while Orlando Tactac whom they
encountered at Barrio Mala-weste, evaded arrest.

On the other hand, Juanito Alipio, Adriano Cabael, Herminio Taaca and Regalado Taaca, all denied participation in the crime and uniformly
stated that on that day, they were in the house of Benito Alipio
playing the game “pepito“.  They admitted, however, that later they all
went to the house of the deceased where they drank wine, smoked cigarettes and
talked but afterwards they all left and proceeded to go home.  But at a distance of more or less one hundred
meters away from the house of the deceased, they heard a gun report and then
continuous firing.  They continued
walking thinking that the shots were coming from the house of Benito Alipio, forty meters away (TSN, July 17, 1982, pp. 102-
116; TSN, August 15, 1972, pp. 202-229; TSN, August 25, 1972, pp. 182-197; TSN,
September 18, 1972, pp. 3-11).

Silvestre Belen, farmer and
resident of Nagsabaran, Buguey,
Cagayan testified that he is a native of Mabilbila, Santa, Ilocos Sur.  He came
to Nagsabaran because his brother Benito Belen, asked
him to help in the latter’s farm in Nagsabaran.  He is residing with his brother in the house
of Santiago Tabisola who is already dead and with
whom they were working under tenancy relationship.

In the afternoon of June 29,
1971, he was at Dagupan, Lallo, Cagayan which is three (3) kilometers from Nagsabaran, to visit a good friend.  He left the place the following day, that is,
on June 30, 1971.  On his way home to Nagsabaran
from Dagupan, Lallo, he met
Tinoy Tabisola, Orlando Tactac and Berlino Caliso.  Berlino Caliso had a
carbine.  On July 1, 1971, he went back to Dagupan
but returned to Nagsabaran in the evening of the same
day.  On his way home, he met Orlando Tactac who informed him that Terio
Taaca and Dada Taaca were
in jail.  He had known the accused Herminio Taaca and Regalado Taaca for less than
three (3) months.

He has not given any
statement regarding the subject of his testimony because of fear of being
liquidated (TSN, August 8, 1972, pp. 127-144).

The Circuit Criminal Court
convicted the two accused Herminio Taaca and Regalado Taaca of the crime of Murder qualified by treachery, in a
decision promulgated on September 21, 1972 (Rollo, p. 17).  On October 9, 1972, they filed a notice of appeal from the
judgment of conviction (Record, p. 110). 
On November 13, 1972, the Court resolved to appoint Atty. Pablo D. Bulan of Tuguegarao, Cagayan as counsel de oficio for
appellants Herminio Taaca
and Regalado Taaca to
represent them in their appeal (Rollo, p. 51) in
accordance with the request of said appellants made through the provincial
warden of Cagayan (Rollo,
p. 49).

The brief for the
defendants-appellants was filed with the Court on April 23, 1973 after four (4) requests for extension (Rollo, p. 68); while the brief for appellee
was filed on September 4, 1973 (Rollo, p. 82).

The Court resolved to
consider the case submitted for decision on December 20, 1973, it appearing that appellants failed to file
their reply brief within the period which expired on October 9,
1973 (Rollo, p. 88).

On March 2, 1981,
accused-appellant Herminio Taaca
filed a motion to withdraw appeal alleging among others, that he had entirely
lost interest in pursuing his appeal on account of his personal belief:  (a) that he has already undergone years of
preventive imprisonment; (b) that his appeal is not meritorious; and (c) that
he humbly believes that the withdrawal of the appeal is more favorable and
advantageous to himself (Rollo, p. 100).  Acting on the said motion, the Court in a
Resolution dated March 19, 1981 resolved to require aforesaid appellant’s
counsel and the Solicitor General to comment on said motion within ten (10)
days from notice (Rollo, p. 10).

The comment of the de
officio counsel for the accused interposing no objection to said withdrawal,
was submitted on August 10, 1981 (Rollo, pp.
106-108).

The Court then resolved to
require accused-appellant Herminio Taaca himself, to file a Reply to Comment of his, de
officio counsel within ten (10) days from notice (Rollo,
p. 110).  On November 2, 1981, accused-appellant filed his Reply to Comment
reiterating his manifestation to withdraw his appeal (Rollo,
p. 11).  On December 2, 1981, the Court
resolved:  (a) require the Clerk of Court
to furnish the Solicitor General with copies of accused-appellant’s motion to
withdraw appeal, the comment of the counsel de officio and the reply of accused-appellant
to the comment of his counsel de officio; and (b) the Solicitor General to file
his comment on the motion to withdraw within the prescribed period (Rollo, p. 114).  The
Comment of the Solicitor General, also interposing no objection to the motion
to withdraw appeal filed by appellant Herminio Taaca was filed on January 21, 1982 (Rollo, p. 117).

On February 1,
1982, this Court
allowed accused-apellant, Herminio
Taaca, to withdraw his appeal in this case (Rollo, p. 120) and the judgment became final and executory on the same date insofar as he is concerned.  Entry of judgment was made on February
26, 1982 (Rollo, p. 121).  The
remaining appellant is Regalado Taaca.

Appellant sets forth the
following assignments of errors

I

THE TRIAL COURT ERRED IN
GIVING WEIGHT AND CREDENCE TO THE UNRELIABLE, INCONSISTENT AND CONTRADICTORY
TESTIMONIES OF THE TWO PRINCIPAL WITNESSES FOR THE PROSECUTION NAMELY, CARIDAD
GABUAT AND MELVIN GABUAT TO THE SERIOUS PREJUDICE OF THE DEFENDANTS-APPELLANTS’
SUBSTANTIAL RIGHTS.

II

THE TRIAL COURT ERRED IN
CONVICTING THE DEFENDANTS-APPELLANTS IN SPITE OF THE FACT THAT THEIR
IDENTIFICATION WAS NOT SUFFICIENTLY ESTABLISHED BY THE PROSECUTION AND THE
TOTAL ABSENCE OF MOTIVE ON THEIR PART TO COMMIT THE CRIME IN QUESTION.

III

THE TRIAL COURT ERRED IN NOT
ACQUITTING THE DEFENDANTS-APPELLANTS ON THE GROUND THAT THEIR GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT.

The withdrawal of appeal by
the co-accused shows acquiescence to the judgment of conviction and an
affirmation of the fact of the crime charged (People v. Bundol,
143 SCRA 241 [1986]) or a realization that the evidence of the prosecution is
overwhelming, and that of the defense, weak in the extreme (People v. Carreon y Viray, 99 SCRA 473
[1980]).  As manifested by Herminio Taaca in his motion to
withdraw appeal, one of the reasons for his withdrawal of the appeal is that it
is not meritorious.  In effect he has
shown acquiescence to the correctness of his conviction and the fact of his
having committed the offense of murder against the person of the deceased
Alfredo Gabuat.

The evidence of the
prosecution point to Herminio Taaca
as the one who treacherously shot the deceased while the latter was opening the
main door of his house unaware of any intention on the part of his assailant to
kill him.  On the other hand, the
complicity of appellant Regalado Taaca
to the crime is premised on the alleged presence of conspiracy in the
commission of the crime.

The sole issue therefore,
in this case, is whether or not the presence of conspiracy has been adequately
proven by the prosecution.

This Court has ruled that:

“A conspiracy in the
statutory language exists when two or more persons come to an agree­ment
concerning the commission of a felony and decide to commit it.  The objective then on the part of the
conspirators is to perform an act or omission punishable by law.  What is required is assent to the
perpetration of such a misdeed.  That must
be their intent.  There is need in the
language of Justice Mapa in the early leading case of
United
States v. Magcomot, a 1909 decision, for
‘concurrence of wills’ or ‘unity of action and purpose.’ The usual phraseology
employed in many of the later cases is ‘common and joint purpose and design.’
At times, reference is made to ‘previous concert of criminal design.’ Its
manifestation could be shown by ‘united and concerted action.’ Thus a
conspiracy need not be proved by direct evidence; it may be deducted from the
mode and manner in which the offense was perpetrated.  The conditions attending its commission and
the acts executed may be indicative of a common design to accomplish a criminal
purpose and objective.  If, to use the
apt words of Chief Justice Bengzon, there is a ‘chain
of circumstances’ to that effect, then conspiracy has been established.  If such be the case then, the act of one is
the act of all the others involved and each is to be held to the same degree of
liability as the others.  So it has been
our constant ruling from the 1905 decision of United States v. Mazu” (People
v. Pudpud, 39 SCRA 618, [1971].  Quoted in People v. Tiongson,
47 SCRA 279 [1972]; People v. Malilay, 63 SCRA 420
[1975]; People v. Ogapay, 66 SCRA 209 [1975]).”

The only eye-witness to the
crime, Melvin, son of the deceased, testified on cross examination that four
persons went to their house – Juanito Alipio, Anding Cabael, Herminio Taaca and Regalado Taaca.  When Juanito Alipio and Anding Cabael left, Herminio Taaca and appellant
stayed behind and when Herminio Taaca
fired at the deceased Alfredo Gabuat, appellant hid
near their bathroom (TSN, July 10, 1972, pp. 36-40).

Melvin further testified
that while Herminio Taaca
was shooting his father, appellant was not doing anything.  When Herminio Taaca ran, he also ran:

“COURT: When you looked back and you saw Terio shooting your father, 
what was Regalado doing?

A           
– None, sir.

COURT
– How far was he (this Regalado)
from Terio shooting his father?

A           
– (Witness pointed to a distance of
more or less two meters.

COURT
– He was not armed.

A           – None,
sir.

COURT
– Was he carrying anything?

A           
– None, sir.

COURT
– When you saw Terio
ran, what did Regalado do?

A           
– He also ran.

COURT – Did you hear Regalado
say something while Terio was pointing  his gun

towards your father?

A            – None,
Sir.”

(TSN, July 10, 1972, p. 47).

No evidence of conspiracy
can be deduced from the above testimony of the sole eye-witness to the
perpetration of the crime.  There is no
evidence of appellant’s direct participation in the shooting of the deceased.

Although no formal
agreement is necessary to establish conspiracy and said conspiracy may be
inferred from the circum­stances attending the commission of the crime, yet
conspiracy like any other ingredient of the offense, must he established by
clear and convincing evidence.  There
must be evidence of intentional participation in the transaction with a view to
the furtherance of the common design and purpose (People v. Agda,
111 SCRA 330 [1982]).  The same degree of
proof necessary to establish the crime is required to establish a finding of
criminal conspiracy, which is, proof beyond reasonable doubt (People v. Drilon, Jr., 123 SCRA 72 [1983]).  It cannot be esta­blished by conjectures but
by positive and conclusive evidence (People v. Martinez, 127 SCRA 260 [1984]).

The fact that Herminio Taaca and appellant were
together when the crime was committed is not proof of the existence of
conspiracy to commit the crime (Francisco v. Court of Appeals, 122 SCRA 538
[1983]).  Mere companionship does not
establish conspiracy (People v. Sosing, 111 SCRA 368
[1982]).

No conspiracy can be
deduced where the alleged co-conspirators did not perform any overt act of
shooting the victim although they were with the person who fired the gun
(People v. Benavidez, 127 SCRA 188 [1984]). 
In the instant case, it is undisputed that appellant did not perform any
overt act.

The only incriminating
evidence against appellant is that he was at the scene of the crime.  The mere presence of appellant at the scene
of the crime at the time of its commission is not by itself, however,
sufficient to establish his criminal liability. 
Existence of conspiracy must be clearly and convincingly proven (People
v. Sabilano, 132 SCRA 83 [1984]).  The accused must be shown to have had guilty
participation in the criminal design entertained by the slayer, and this
presupposes knowledge on his part of such criminal design.  It is not enough that there be a relation
between the acts done by the principal or accomplice.  It is furthermore necessary that the latter,
with knowledge of the former’s criminal intent should
cooperate with moral or material aid in the consummation of the crime (People
v. Drilon, Jr., supra; People v. Pimentel, 147
SCRA 25 [1987]).

Conspiracy between two
accused cannot be inferred by the mere fact that they have been drinking
together prior to the shooting and run away in the same direction thereafter;
more so where the other accused had no known motive to kill (People v. Realon, 99 SCRA 422 [1980]).  The fact that the two accused left together
after the shooting incident does not show conspiracy (People v. De Jesus, 118
SCRA 616 [1982]).

Two circumstances which are
indicative of the innocence of the appellant and his earnest desire to prove
his innocence are:  (a) his insistence
during the trial of the case in the lower court to testify and be placed on the
witness stand (TSN, August 25, 1972, pp. 149-150); and (b) when his co-accused Herminio Taaca withdrew his
appeal, appellant pursued this appeal to the end.

The incriminating evidence
against appellant Regalado Taaca
is not sufficient to establish conspiracy. 
Without conspiracy, he cannot be considered liable as he had no direct
participation in the commission of the crime. 
The presumption of innocence has not been successfully overwhelmed by
evidence beyond reasonable doubt (People v. Agda, supra).

WHEREFORE, the decision of the then Circuit Criminal
Court, First Judicial District, Tuguegarao, Cagayan in Criminal Case No. I-100 promulgated on September
21, 1972 is hereby
modified as follows:  the judgment of
conviction against Regalado Taaca
is Reversed and another one is entered Acquitting him on the ground of
reasonable doubt, with costs de oficio.

SO ORDERED.

Fernan, (C.J.), Gutierrez, Jr., Feliciano, and Cortes, JJ., concur.

*
Penned by Judge Romeo M. Escareal.