PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUBEN MANALO, DEFENDANT-APPELLANT.

The judgment of the former Circuit Criminal Court of Rizal in Criminal Case
No. CCC-VII-2505 finding Ruben Manalo guilty of murder and imposing the death
penalty, is before us on automatic review.

The record discloses that in
the morning of 23 May 1977, appellant Ruben Manalo, a prisoner serving sentence
in the National Bilibid Prison, was at the visiting area of the prison waiting
for transfer to the San Ramon Penal Colony.  Alfredo de la Cruz, Jolly Hilario
and Reynaldo Cariso, all convicted prisoners serving their respective sentences,
were similarly waiting in the same visiting area for transfer to the same penal
colony.  While at the visiting area, appellant engaged another convict in a
betting game called “honkiang“, after which appellant and dela Cruz
indulged in speculation concerning their prospective life in the penal colony. 
During this conversation, appellant attacked dela Cruz with a knife, inflicting
two fatal stabwounds on the latter’s back.  Immediately after the stabbing,
appellant voluntarily surrendered to the prison authorities and handed over the
fan knife (balisong) he used in killing dela Cruz.

Immediately
after the killing and the appellant’s surrender, the appellant was investigated
by the prison authorities.  During this investigation, Ruben Manalo readily
admitted verbally having stabbed the victim and nonchalantly advised that the
fan knife he used had been bought by him for P25.00 a month ago and had been
concealed inside his right rubber shoe and so was not discovered by the prison
guard who had searched him before entering the Visiting Shed.

The
investigation also revealed that the victim was a member of the BCJ (Batang
City Jail) gang from prison Dormitory 3-D while Ruben Manalo is a member of
the Sigue-sigue Sputnik gang from prison Dormitory 2-B.  These two
gangs have had a serious, ongoing feud for a long time, which had recently been
aggravated by the fatal stabbing of a member of the Sigue-sigue Sputnik gang by
members of the BCJ gang.

On 6 February 1978, Ruben Manalo was charged
with murder in an information which read as follows:

“That on or about the 23rd day of May 1977 in the municipality of Muntinlupa,
and within the jurisdiction of this Honorable Court, the above-named accused,
who is a convict confined and serving his sentence in the new Bilibid Prison by
virtue of final judgment rendered against him by courts of competent
jurisdiction, with intent to kill, evident premeditation and treachery did then
and there willfully, unlawfully and feloniously attack, assault and stab with a
bladed weapon one Alfredo dela Cruz, also a covict, thereby inflicting upon him
stab wounds on the vital parts of his body which directly caused his
death.

Contrary to law, with the aggravating circumstance of
quasi-recidivism, the accused having committed the offense while serving his
sentence in the New Bilibid Prison.”

Upon arraignment, and with the assistance of counsel,
appellant pleaded guilty.  The trial court nonetheless ordered the mandatory
presentation of evidence.  After trial, in a decision dated 7 December 1978, the
trial court concluded that the killing of Alfredo dela Cruz by Ruben Manalo had
been attended by treachery and evident premeditation and aggravated by
quasi-recidivism.  The dispositive portion of the judgment read:

    “DAHIL SA GAYON, dahil sa kusang loob na pag-amin nang
kasalanan nang nasasakdal sa paglabag sa Artikulo 248 nang Binagong Kodigo Penal
na naayon sa sakdal, napatunayan nang Hukumang ito na siya ay nagkasala at siya
ay hinahatulan nang parusang KAMATAYAN.  Pagbabayaran din niya ang mga
tagapagmana nang nasawi nang halagang P12,000.00 at P10,000.00 bayad pinsalang
moral, P10,000.00 bayad pinsalang di dapat pamarisan at ang gastos ng usaping
ito.

IPINAGUUTOS.”

In his brief, appellant does not question the finding of the
trial court that he had killed Alfredo dela Cruz.  Instead, the appellant
assigns two distinct errors:

(1)  the proceedings in the trial court were
null and void since certain constitutional rights of the appellant had been
disregarded therein; and

(2)  the trial court erred in finding that the
killing of dela Cruz had been attended by the qualifying circumstances of
evident premeditation and treachery.

In respect of the first assigned
error, it is the contention of the appellant that he was deprived of his
constitutional right to due process, to be presumed innocent until the contrary
is proved, to an impartial trial and to counsel, by reason of the lower court’s
partiality, bias and lack of objectivity during the trial.  The appellant urges
that since the trial court was not an impartial tribunal, all the proceedings
before it should be set aside as null and void.

Appellant maintains that
lack of impartiality and of objectivity on the part of the trial judge was
clearly shown when he intervened in the cross-examination of Dr. Virgilio
Hernale (the physician who had carried out the autopsy of the victim dela Cruz)
and of Jolly Hilario, both being witnesses for the prosecution.  Upon
termination of the cross-examination of Dr. Hernale by defense counsel, the
trial judge raised the following questions which Dr. Hernale answered in the
following manner:

At the subsequent hearing, during the cross-examination of Jolly Hilario
by defense counsel, the trial court intervened once more in the following
manner:

;

The appellant claims that the above interventions of the trial court show
that, at the very outset, the judge had already concluded that appellant was
guilty of murder and had resolved to convict him; that the trial court had
functioned “both as judge and prosecutor” asking questions of witnesses
“calculated to establish treachery, premeditation and motive”; that the
questions raised by the trial court were exceptionable ones, being “leading,
misleading, called for opinions or were objectionable on the ground of the
witness’ incompetence”; and that therefore, appellant “never had a fair
chance”.^[3]

We are not persuaded
by the appellant’s contention.  As long ago as 1915, this Court held
that:

    “A severe examination by a trial judge of some of the witnesses
for the defense in an effort to develop the truth and to get at the real facts
affords no justification for a charge in counsel’s brief on appeal that he has
assisted the prosecution with an evident desire to secure a conviction, or that
he had intimidated the witnesses for the defense.  We have had occasion to hold
(U.S. vs. Hudieres, 27 Phil. Rep., 45) that it is not only the right
but ofttimes the duty of a trial judge to examine witnesses when it
appears to be necessary for the elucidation of the record.  Under the system of
legal procedure in vogue in this jurisdiction, where the trial court is judge of
both the law and the facts, it is ofttimes expedient or necessary in
the due and faithful administration of justice for the presiding judge in the
exercise of a sound discretion to reexamine a witness in order that his judgment
when rendered may rest upon a full and clear understanding of the facts.”^[4]

We must accord to a trial judge
reasonable leeway in putting such questions to witnesses as may be essential to
elicit relevant facts and to make the record speak the truth.  In such an
effort, a judge may examine or cross-examine a witness.  He may seek to draw out
relevant and material testimony though that testimony may tend to support or
rebut the position taken by one or the other party.  In the first instance, the
Court has pointed out, “the extent to which such examination may be conducted
rests in the discretion of the judge, the exercise of which will not be
controlled unless his discretion has clearly been abused to the prejudice of
either party”.^[5] In the present case, we
do not believe that the trial judge transgressed the permissible limits of
judicial inquiry.  It appears to us that the judge merely sought to clarify to
himself whether or not treachery and evident premeditation had indeed attended
the killing of Alfredo dela Cruz, as alleged by the prosecution.  All that the
questions propounded by the judge indicates to us is that he was not
particularly skillful in cross-examination and that he found it difficult to
operationalize words which themselves imported conclusions.  Finally, we would
note that the questions posed by the trial judge, quoted above, did not
ultimately impose any prejudice upon the appellant, for reasons that will become
clear shortly.  The questions raised by the trial judge sought to draw forth
answers which did not relate to whether or not the appellant had in fact killed
dela Cruz.  The appellant had not only entered an intelligent and valid plea of
guilty; that he had killed his fellow convict dela Cruz was established by
independent and overwhelming evidence.

The appellant also claims that he
was denied his constitutional right to counsel.  The appellant admits that he
was assisted by counsel de oficio from the time of arraignment and
throughout the trial of the case.  Appellant, however, deplores the fact that
several different counsel de oficio assisted him during the different
hearings held in his case.  Atty. Galvan appeared for Manalo at the arraignment
and at the second and sixth hearings; Atty. Sardillo assisted him during the
first and the third hearings; at the fourth and fifth hearings, Manalo was
represented by Atty. Agoot.  At the fifth hearing, the appellant claims, the
prosecution was already “mid-stream” in its direct examination of the
prosecution witness of whom 27 questions had already been asked, when the
prosecution suddenly commented that “I think there is no lawyer for the accused
[present]”.  The trial court forthwith appointed Atty. Agoot there physically
present as counsel de oficio (apparently forgetting that he had already
been appointed counsel de oficio and had acted as such, at the previous
[fourth] hearing) and thereupon proceeded with the trial of the
case.

Appellant raises the entertaining, if rhetorical, question of how
ably his counsel de oficio could defend him since they were “playing
musical chairs — hearing after hearing”.^[6] Thus, the appellant asserts that his right
to counsel was “but a sham”, that by appointing multiple counsel de
oficio the trial court did not effectively provide him with the assistance
and protection required by the Constitution.^[7]

The appellant’s argument is novel
and interesting but, once more, we are not persuaded that there has here been a
deprivation of a constitutional right which requires annulment of all the
proceedings before the trial court.  We do not believe that the fact that a
particular counsel de oficio did not or could not consistently appear
in all the hearings of the case, is effectively a denial of the right to
counsel, especially so where, as in the instant case, there is no showing that
the several appointed counsel de oficio in any way neglected to perform
their duties to the appellant and to the trial court and that the defense had
suffered in any substantial sense therefrom.  Fairness to the several counsel
de oficio requires us to note the record which reveals that each of
them had conscientiously performed their duties in assisting the appellant and
protecting his interest by, for instance, making the necessary objections in a
timely manner during the examination of the prosecution witnesses to test their
credibility and freedom from bias or evil motive.^[8] Contrary to the suggestion of the
appellant, Atty. Agoot was not entitled to a recess of two days to prepare to
defend the appellant after Atty. Agoot was re-appointed counsel de
oficio at the fifth hearing.  That lawyer had previously been designated
counsel de oficio during the preceding (fourth) hearing.^[9] Both the appellant and the court had
therefore the right to expect that that counsel de oficio was familiar
with the facts of the appellant’s case and that he had prepared himself for the
fifth hearing since his prior appointment as counsel de oficio had not
been revoked by the trial court.  In point of fact, his designation once more as
counsel de oficio during the fifth hearing was totally unnecessary.  In
any case, Rule 116, Section 5 of the Rules of Court gives the trial judge
discretion to shorten or extend the time given to an attorney de oficio
to prepare his defense.

We turn to the appellant’s second assignment of
error:  that relating to the finding of the lower court that the killing of
convict dela Cruz was attended by the qualifying circumstances of evident
premeditation and treachery.  We note at once that the Solicitor General has
concurred with the view taken by the appellant on this point.

The lower
court had found that dela Cruz was sleeping when attacked by Ruben Manalo
(citing, in this connection, the Necropsy Report)^[10] and thus, concluded that treachery was
present.  The Solicitor General, however, concedes that there was absolutely no
evidence in the record to show that dela Cruz was stabbed while asleep.^[11] The Necropsy Report only described the
injuries and the cause of death of the victim.  No statement is found there that
the victim was asleep at the time of the stabbing.  Neither the physician who
carried out the autopsy and prepared the Necropsy Report nor the two
eyewitnesses to the stabbing had testified that the fatal wounds had been
administered while the victim was asleep.  On the contrary, both eyewitnesses to
the killing explicitly stated that the appellant had stabbed dela Cruz while the
two were conversing with each other.^[12]

Treachery cannot be presumed.  It
must be proven as conclusively as the act of killing itself.  The fact that the
fatal wounds were found at the back of the deceased does not, by itself, compel
a finding of treachery.  Such a finding must be based on some positive proof and
not be merely an inference drawn more or less logically from hypothetical
facts.  This Court has ruled that the suddenness of an attack is not, of itself,
enough to constitute treachery when the method of killing does not positively
show that the assailant thereby knowingly intended to ensure the accomplishment
of his purpose without risk to himself from any defense which the victim might
put up.^[13] In other words, to sustain a
finding of treachery, the means, method or form of attack must be shown to have
been deliberately adopted by the appellant.^[14] There was no such showing here.  On the
contrary, the evidence indicated that the killing of dela Cruz was not
pre-planned by the appellant and that the decision to kill was an impulse of the
moment.  Appellant was in the visiting area with dela Cruz not because the
appellant had deliberately planned to be there at the same time as dela Cruz. 
Rather, appellant was there because he, along with others, had been chosen by
the prison authorities for transfer to the penal colony.  Thus, appellant found
himself with dela Cruz that morning by accident and not by design.  Further,
dela Cruz was stabbed while lying on a table, engaged in a conversation with the
appellant.  Appellant could not have forseen that dela Cruz would lie down on a
table and present such an attractive victim; thus, the resolve to stab him while
dela Cruz was in a prone position, must have been taken impulsively.  Finally,
if the appellant had planned the killing, the probability was that he would not
have planned to carry it out in broad daylight while dela Cruz’s gangmates and
dormitory mates (Hilario and Cariso) were close by.

The Solicitor General
has also agreed with the appellant that the trial court’s finding of evident
premeditation was erroneous because of lack of support in the record.  The
Solicitor General said:

“[To show evident premeditation] it is necessary to establish (a) the time
when the offender determined to commit the crime, (b) a notorious act manifestly
indicating that he has clung to his determination, and (c) a sufficient lapse of
time between the determination and the execution, to allow him to reflect upon
the consequences of his act.  (Padilla, Criminal Law, 1979 ed., p.
449).

None of these requisites was proven in the case at bar.  The
evidence presented at the trial was limited to events that transpired
immediately prior, during and after the attack.  No one testified on any
incident that occurred an hour or more before the attack.  Hence, there is no
proof on (a) when appellant resolved to kill the victim, (b) what external acts
demonstrated that he stuck to his resolution and (c) whether he had sufficient
time to reflect upon the consequences of his act.

In fact, there is no
evidence to show that appellant and de la Cruz knew each other prior to the
killing.  They belonged to different gangs, were assigned to different brigades
and lived in different dormitories.  Prosecution witnesses Hilario and Cariso,
who were gangmates, dorm-mates and close friends of de la Cruz, did not know
appellant’s name.  Thus, it is highly probable that appellant was not even
acquainted with de la Cruz and so there was no reason for appellant to resolve
before hand to kill de la Cruz.  The qualifying circumstance of premeditation
may be properly taken into account only when the intention to kill has been
planned in the mind of the offender and carefully meditated.  It is not enough
that it arose at the moment of the aggression, as in the present case.

In
the absence of clear proof of any circumstance that would qualify as murder the
killing of the deceased, we submit that appellant committed no more than
homicide.”^[15]

We agree with the Solicitor General.

WHEREFORE, the
decision of the lower court is modified and Ruben Manalo is found guilty beyond
reasonable doubt of the crime of homicide for which, in view of the presence of
the special aggravating circumstance of quasi-recidivism under Article 160 of
the Revised Penal Code, the correct imposable penalty is reclusion temporal
in its maximum period.  Applying the Indeterminate Sentence Law, Ruben
Manalo is hereby sentenced to an indeterminate penalty of ten (10) years and one
(1) day of prision mayor as a minimum and seventeen (17) years, four
(4) months and one (1) day of reclusion temporal as a maximum.  The
civil indemnity due to the heirs of Alfredo dela Cruz is increased to Thirty
Thousand Pesos (P30,000.00).  The balance of the judgment of the lower court is
AFFIRMED.

SO ORDERED.

Yap, (Chairman), Narvasa, Gancayco, and Sarmiento, JJ.,
concur.

Melencio-Herrera, J., see dissenting
opinion.

Cruz, J., see separate opinion.

^[2] TSN, 22 November 1978,
pp. 19-20.

^[3] Brief for the
Appellant, p. 8.

^[4] US v. Lim
Tiu, 31 Phil. 504 at 506 (1915); Also:  People v. Moreno, 83 Phil.
286 (1949); and People v. Largo, G.R. No. L-4913 (28 August 1956)
(unpublished).

^[5] People v.
Serna, G.R. No. L-7845 (27 February 1957) (unpublished).

^[6] Brief for the Appellant, p.
11.

^[7] Id., p. 11-12.

^[8] TSN, 22 November 1978, pp. 7-22; 9
February 1978, pp. 4-5; 10 February 1978, pp. 7-12; 15 February 1978, pp. 2-5;
17 February 1978, pp. 3-4; 7 December 1978, pp. 3-4.

^[9] TSN, 17 February 1978, pp.
1-5.

^[10] Exhibit “A”, Original
Record, p. 65.

^[11] Brief for the
Appellee, p. 9.

^[12] Salaysay
of Jolly Hilario and Reynaldo Cariso, Exhibits “E” and “F”, Original
Record, pp. 71-72.

^[13] People
v. Carsano, 95 SCRA 146 (1980); People v. Cabiling, 74 SCRA 185
(1976); People v. Satone, 74 SCRA 106 (1976).

^[14] People v. Bongo, 55 SCRA 547
(1974).

^[15] Brief for the
Appellee, pp. 16-18.

SEPARATE OPINION

CRUZ, J.:

While concurring in the conviction
based upon the plea of guilty made by the accused-appellant, I must express
misgivings over the manner he was accorded his right to counsel, which is one of
the most important rights of the accused under the Constitution.

So
important is this right that the first duty of the court before even arraigning
the accused is to ascertain whether or not he is assisted by counsel and, if
not, to give him a chance to retain counsel de parte or, if he cannot,
to appoint counsel de oficio for him.  No less importantly, the court
must see to it that the counsel de oficio shall not merely make the
motions in defense of the accused but must exert all efforts for the protection
of his client’s rights with the same sincerity and spirit as when he is acting
as counsel de parte.

The records of this case show that no
counsel de oficio was appointed for the defendant on a permanent basis,
that is, for the entire duration of the case.  On the contrary, new counsel
de oficio was appointed for each hearing, when and as it was held, the
choice presumably falling on whoever was available in the courtroom at the
time.  Thus, one lawyer was appointed for the arraignment and the second and
sixth hearings; a second for the first and third hearings; and a third for the
fourth and fifth hearings, belatedly at that during the fifth hearing, when it
was noticed after some time that the defendant had no counsel.

Such
tentative, ad hoc and impromptu appointments of counsel de
oficio could not have provided the defendant-appellant with the adequate
representation he was entitled to for the protection of his rights.  The several
counsel de oficio tapped for the nonce apparently acted extempore only,
without the motivation of a considered strategy or a long-range theory of the
case.  As a result, lacking continuity, cohesiveness and direction, the defense
became pro forma and predictably ineffective, to the prejudice of the
accused-appellant.  I do not think this is the kind of protection envisioned in
the Bill of Rights when it unequivocally assures the accused that he shall have
the right to be heard by himself and counsel.

DISSENTING

MELENCIO-HERRERA, J.,

It is my view that teachery attended the commission of the crime. The victim
was stabbed while lying on his back on a table conversing with appellant,
unarmed. He was unware of appellant’s criminal intention; he was stabbed all of
a sudden, without warning; he was full unprepared at the time of the attack and
was in no position to defend himself. The fact that the killing was not
pre-planned did not make the offense any less treacherous. Admittedly, appellant
was “attracted” by the prone position of the victim. Thereupon, he consciously
employed a mode of attack which tended directly and specifically to insure his
criminal objective without risk to hinself arising from any defense which the
offended party might have made.