PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANTONIO TORREFRANCA, ALIAS “TONY”, SOFRONIO GILBOLINGO, ALIAS “PONYONG”, ISAIAS DARO, ALIAS “ELY”, TIRSO MELECIO, ALIAS “TIRSO…

Accused Antonio Torrefranca alias “Tony”, Sofronio
Gilbolingo alias “Ponyong”, Isaias Daro alias “Ely”, Tirso
Melecio alias “Tirso”, Olipio Arellano alias “Apyot” and
Benedicto Botohoy were charged with the crime
of Robbery in Band with Double Homicide before the Regional Trial Court of the
City of Tagbilaran, Bohol, Seventh Judicial Region, Branch I.

On the same day that the
information was filed, the fiscal filed a motion requesting the discharge of
accused Botohoy. After the prosecution
had presented its evidence and rested its evidence (accused Botohoy was among
the prosecution witnesses who testified) the trial court granted the said
motion for discharge and ordered Botohoy’s release from detention.

Trial proceeded against
the other accused, and in a decision* dated January 25, 1984, the trial court ren­dered
judgment, the dispositive portion of which, reads:

“WHEREFORE, finding the herein accused Antonio Torrefranca
alias Tony, Sofronio Gilbolingo alias Ponyong, Isaias Daro alias Ely, Tirso
Melecio alias Tirso and Olipio Arellano alias Apyot guilty beyond reasonable
doubt of the special crime of Robbery with Homicide, all said accused are
hereby sentenced to suffer the penalty of death and to pay severally and
jointly the following damages, to wit:

1)     
Twelve Thousand Pesos (P12,000.00) by reason of the death of
Vivencio Diaganon to be paid to his legal heirs;

2)     
Twelve Thousand Pesos (P12,000.00) by reason of the death of
Flaviana Diaganon to be paid to her legal heirs;

3)     
Five Thousand Pesos (P5,000) as moral damages to be paid to
the legal heirs of Vivencio Diaganon;

4)     
Five Thousand Pesos (P5,000) as moral damages to be
paid to the legal heirs of Flaviana Diaganon;

5)     
To pay their proportionate share of the costs.

SO ORDERED.” (p. 37,
Rollo)

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

In the early evening of March 25, 1981, Botohoy went to the store
of Gilbolingo at the junction of Barangay
Libertad Norte, Sagbayan, Bohol to take
a ride for Batuan, Bohol, to see
his wife who was harvesting palay thereat. Inside the store, he saw the appellants Torrefranca, Daro, Melecio,
Arellano and Gilbolingo. Gilbolingo
approached Botohoy and took his sickle and bolo (p. 26, TSN), then placed them
on the shelves of the store. Botohoy
observed that the appellants were drinking
“tuba” and were discussing something which he could not hear, as he
was far from the group. Thereafter,
Gilbolingo and Torrefranca forced
him to go with the group to the house of the Diaganon couple.

On their way to the Diaganons’ house, Botohoy noticed that
Gilbolingo brought a bolo and his (Botohoy’s) sickle, Daro carried a small
bolo, Melecio had a piece of wood, Arellano carried a
small bolo, while Torrefranca had
a revolver. At about 7:00 o’clock in the evening, the group reached the house of the Diaganon couple, which is a kilometer away. Gilbolingo called for Flaviana Diaganon,
who, upon seeing Gilbolingo, readily invited him in. Whereupon,
the group rushed up the stairs. While doing so, Torrefranca covered his head
and face with a black cloth. (pp.
39-42, TSN)

Once inside, Gilbolingo held Flaviana by the hair and hacked her neck with the sickle (Exh. A). Flaviana fell down on the floor, spattering blood all over Gilbolingo’s
blue t-shirt. Then, Gilbolingo hacked
her forearms and took the bundles of money on her waist, which were rolled
inside a stocking (pp. 42-51, 53, TSN).

Meanwhile, Torrefranca,
who was holding a gun, positioned himself at the sala while Daro and Melecio
entered the bedroom of Vivencio Diaganon. Botohoy
heard Vivencio’s voice, pleading to Daro to stop assaulting him. Then, Daro came out of the room, carrying
under his armpit a blanket and trousers, and holding a bolo covered with blood
(pp. 57-58, TSN). Melecio also came out
from the room of Vivencio, carrying a piece of wood covered with blood. Torrefranca
then ordered Daro and Melecio to hurry up
and look for money. Whereupon, Daro
opened the drawer of a sewing machine and brought out a bundle of money, two
centimeters thick. Torrefranca went to
a big bamboo basket and dug into the palay inside. He got a bundle of money and placed it in his pocket (pp. 63-69,
TSN). Arellano searched another room in
the house but was not able to get anything (pp. 69-70, TSN).

Thereafter, Torrefranca
announced to his companions: “Let
us go down now.” Before leaving the house, Torrefranca increased the
volume of the radio, which was then set on a small table. Torrefranca removed his mask, as he went
down the house, and took custody of all the money taken from the
victims. When the group returned to
Gilbolingo’s house, Torrefranca explained that they could not yet divide the
loot because they may tend to spend it and may direct suspicion on them (pp.
70-78, TSN). Then, he warned Botohoy
not to report the matter to the
police, otherwise, he would kill Botohoy and his family.

The following morning, Alfonso Diaganon, a son of Vivencio
Diaganon by a previous marriage, went to the house of the victims, upon being
informed by one of the victims’ farm hands that something tragic had happened
to the two old persons. He saw Flaviana
Diaganon lying on the floor leading to the kitchen with a large wound on her neck, and Vivencio Diaganon lying
prostrate on his bed in the bedroom, with wounds on the forehead, left cheek
and on the sides of his body. He also
discovered an amount of Twenty One Thousand Pesos (P21,000.00) con­cealed among
the palay. Then, he reported the matter
to the police.

On the same day, Dr. Estanislao Camacho, Municipal Health Officer
of Sagbayan, Bohol autopsied the bodies of the victims and reduced his findings
into writing, to wit: that the cause of
death of Vivencio Diaganon was massive hemorrhage of the head and the right
chest, probably caused by a sharp pointed instrument (pp. 73-74, TSN); and that
the cause of death of Flaviana Diaganon was massive hemorrhage, coming from the
neck caused by a sharp instrument, possibly a sharp bladed scythe (pp. 80-81, TSN).

On April 15, 1981, when
Botohoy was apprehended by the police, Botohoy executed an extrajudicial
confession revealing the details of the commission of the outrageous offense
and identifying the appellants as the perpetrators thereof. Thus, on April 16, 1981, Sgt. Amedio G.
Cagata applied for and obtained a search warrant from the Hon. Andrew S.
Namocatcat, Judge of the then Court of First Instance of Bohol, to authorize
the search of the residences of the appellants. From the house of Daro, they recovered one small bolo, stained
with blood (Exh. “B”), two bales of cloth (Exhs. “D” and
“D-1”) and one t-shirt (Exh. “L”); from Gilbolingo’s house,
they recovered a blue t-shirt, stained with blood (Exh. “C”); and
from Melecio’s house, they found a white t-shirt (Exh. “M”).

On April 20, 1981, Gilbolingo
executed a document entitled Waiver of Rights, in which he expressed his desire
to waive his rights to remain silent and to the presence of counsel during
interrogation. Thereafter, he executed
an extrajudicial confession admitting his participation in the commission of
the crime and naming all the other accused, except Arellano (his
brother-in-law) as his co-conspirators. Subsequently, Gilbolingo subscribed and swore to his Waiver of Rights
and Extrajudicial confession before the then Assistant Provincial Fiscal Daniel
B. Bernaldez of Bohol.

During the trial, the
appellants testified on their whereabouts at the time of the incident, their
defenses amounting to a general denial and alibi. Gilbolingo subsequently repudiated the voluntariness of his extra­judicial
confession, claiming that he was merely forced to sign prepared documents (p.
117, Rollo). The defense also presented
witness Epifanio Abaño, who assumed full responsibility for the crime,
allegedly with a certain Marlito Paca (whose family name he does not know), a
certain Cris (whose family name he does not also know), Cito Petalcorin, Junior
Tutor, Junior Petalcorin and Narding Abari (p. 24, Rollo).

After trial, the trial
court convicted the appellants of the complex crime of Robbery with Homicide,
and sen­tenced them as aforesaid.

In this appeal, the
appellants assail the credibility of the testimony of their co-accused
Botohoy. They also contend that the
discharge of Botohoy to become a state witness was in violation of Rule 119, Section 9, for he appears to be the most guilty
(Botohoy had been working in the plantation of the deceased spouses and had
known the extent of their earnings) and has been a fugitive from justice for
attempted rape, a crime invol­ving moral turpitude.

We have carefully
examined the records of the case and We find no plausible reason to alter the
trial court’s appreciation of the credibility of Botohoy’s testimony.

In the discharge of a
co-accused, the trial court may reasonably be expected to err. Where such error is committed, however, the
error of the court in discharging such accused cannot affect the legal
consequences of his discharge (US vs. Mendiola, 82 Phil. 740). Neither can such error affect the testimony
and the quality of his testimony. Even
if the discharged witness should lack some of the qualifications enumerated by
Section 9, Rule 119 of the Rules of Court, his testimony will not, for that
reason alone, be discarded or disregarded (US vs. Abanzado, 37 Phil.
658; People vs. Jamero, 24 SCRA 206).

Thus, the trial court
correctly gave credence to Botohoy’s testimony in court, which confirmed the
material allegations of his extrajudicial confession, pointing to the
appellants as the perpetrators of the crime.

Indeed, appellants’ mere
denial and stories of alibi cannot prevail over the positive testimony of Botohoy,
that the appellants killed the Diaganon spouses and ransacked the latter’s
house. Post mortem
findings of Dr. Estanislao Camacho corroborate Botohoy’s testimony on the injuries
sustained by the victims. The results
of the searches conducted in the respective residences of the appellants, likewise, substantiate Botohoy’s des­cription of the
t-shirts worn by the appellants at the time of the incident, the weapons used
by them, and the articles which formed part of the loot (TSN, pp. 478-490).

Appellants argue that
Botohoy’s testimony is biased and unreliable, because he harbored ill-feelings
against them, to wit: Sofronio
Gilbolingo mauled Botohoy in 1979 and
they have become enemies since then; Isaias Daro testified against
Botohoy in a case for Malicious Mis­chief filed against the latter; Olipio
Arellano’s wife also testified against Botohoy in said Malicious Mis­chief
case; Tirso Melecio reprimanded Botohoy’s son for stealing his (Melecio’s)
corn; and Antonio Torrefranca was responsible for the arrest of Botohoy, as
suspect in the instant case. (p. 114,
Rollo).

We find these supposed
insidious motivations, however, too frivolous and shallow, as to induce
Botohoy to testify falsely against the appellants, at the risk of confessing
participation in the commission of such grave offenses, as in the instant
case. As held in People vs.
Tatlonghari, 27 SCRA 726:

“The reasons for the alleged individual grudges of the
witnesses against appellant being so flimsy and uncertain, it is incre­dible
that they could constitute as suffi­cient motive for an average individual to
conjure up so serious a charge as murder and thereby send an otherwise innocent
man to a long stretch of prison terms. x x x”

We find the testimony of witness Epifanio Abaño,
assuming full responsibility for the commission of the crime, unworthy of
credit and belief. A careful analysis
of the evidence adduced in this case shows that his state­ments are substantially
inconsistent on material points, rendering him a totally unreliable witness.

Thus, on cross
examination, he testified that on the date of the incident, he and his
companions waited for nighttime at the public market in Barangay San Vicente
Sagbayan, Bohol; and that the bodies of the victims were lying side by side on
the floor of the room of their house (TSN, p. 1292).

At the trial, however, it
was established that on March 25, 1981, there was no public market in Barangay San Vicente, Sagbayan, Bohol. It was also clearly pro­ven that the victims’
bodies were lying in different places (where the victims were respectively
killed). Witness Mauricio Petalcorin
(one of his alleged co-cons­pirators), denied any participation in the robbery
and advanced the reason why Abaño testified in favor of the appellants, to wit:

“Q
–    Can you give any reason why Epifanio
Abaño will testify here and point you as the person who killed the old woman in
that robbery case committed in San Vicente, Sagbayan, Bohol, on March 25, 1981?

A –   I
know the reason.

Q –    Please
tell the Honorable Court?

A –   That
fellow…

INTERPRETER:

Witness
pointing to a person who answered to the name Epifanio Abaño

Con’t of the Answer:

is
always asking money and that Gilbolingo is
used to give money. x x x

Q – How long have you known Sofronio Gilbolingo?

A –   May
19, 1983 since the time that I was placed in jail because we were together in
one cell. x x x” (pp. 1364-1365,
TSN)

The foregoing infirmities in witness Abaños testimony lead us to
no other conclusion than that his narrations were last minute concoctions to
exculpate the appellants from their criminal responsibilities.

Finally, appellant
Gilbolingo’s claim that his extra­judicial confession was secured thru force or intimidation, deserves scant
consideration. While he claimed that
Sgt. Cagata maltreated and coerced him into signing prepared documents, he did
not complain of the alleged maltreatment when he was brought before Provincial
Fiscal Bernaldez before whom he swore to the truth of the same. Neither did he file a complaint thereafter
against Sgt. Cagata. The trial court
also found that his confession is replete with details, that could have been
furnished only by the appellant himself (People vs. Nillos, 127 SCRA 207). Additionally, it is alleged that since he
made the extra-judicial confession in the absence of his attorney, the
confession has no evidentiary value, even if his right to have his
counsel present at the time of the interrogation or confession had been WAIVED
by him, the waiver being VOID. Assuming
this to be so, still the evidence presented in this case excluding said
confession, will suffice to con­vict all the appellants.

Well settled is the rule that conclusions of the trial judge,
regarding the credibility of witnesses, com­mand great respect and
consideration, specially when, as in this case, they are supported by the
evidence of record.

WHEREFORE, the appealed decision is hereby AFFIRMED,
subject to the following modifications: (1) the death penalty is reduced to reclusion perpetua* in view of the provisions of the 1987 Constitution
and (2) the indemnity to the victims’ heirs is increased from P12,000.00 to
P30,000.00 for each victim.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Sarmiento, and Cortes, JJ., concur.

Cruz, J., see separate opinion.

* Penned by Judge Mercedes
Gozo-Dadole.

* “Art. III, Sec. 19(1) of
the 1987 Constitution provides: Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced
to reclusion perpetua.”

300

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