LITO VINO, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES AND THE COURT OF APPEALS, RESPONDENTS.

The issue posed in the motion for reconsideration filed by
petitioner of the resolution of this Court dated January 18, 1989 denying the
herein petition is whether or not a finding of guilt as an accessory to murder
can stand in the light of the acquittal of the alleged principal in a separate
proceeding.

At about 7:00 o’clock in the evening of March 21, 1985, Roberto
Tejada left their house at Burgos Street, Poblacion, Balingao, Pangasinan to go
to the house of Isidro Salazar to watch television. At around 11:00 P. M., while Ernesto, the father of Roberto, was
resting, he heard two gunshots. Thereafter,
he heard Roberto cry out in a loud voice saying that he had been shot. He saw Roberto ten (10) meters away so he
switched on the lights of their house. Aside from Ernesto and his wife, his children Ermalyn and Julius were
also in the house. They went down to
meet Roberto who was crying and they called for help from the neighbors. The neighbors responded by turning on their
lights and the street lights and coming down from their houses. After meeting Roberto, Ernesto and Julius
saw Lito Vino and Jessie Salazar riding a bicycle coming from the south. Vino was the one driving the bicycle while
Salazar was carrying an armalite. Upon
reaching Ernesto’s house, they stopped to watch Roberto. Salazar pointed his armalite at Ernesto and
his companions. Thereafter, the two
left.

Roberto was brought to the Sacred Heart Hospital of
Urdaneta. PC/Col. Bernardo Cacananta
took his ante–mortem statement. In the said statement which the victim signed with his own blood, Jessie
Salazar was identified as his assailant.

The autopsy report of his body shows the following –

“Gunshot wound

POE Sub Scapular-5-6- ICA. Pal

1 & 2 cm. diameter left.

Slug found sub cutaneously,

2nd ICS Mid Clavicular line left.

CAUSE
OF DEATH

Tension Hemathorax”^[1]

Lito Vino and Sgt. Jesus Salazar were charged with murder in a
complaint filed by PC Sgt. Ernesto N. Ordoño in the Municipal Trial Court of
Balungao, Pangasinan. However, on March
22, 1985, the municipal court indorsed the case of Salazar to the Judge
Advocate General’s Office (JAGO) inasmuch as he was a member of the military,
while the case against Vino was given due course by the issuance of a warrant
for his arrest. Ultimately, the case
was indorsed to the fiscal’s office who then filed an information charging Vino
of the crime of murder in the Regional Trial Court of Rosales, Pangasinan.

Upon arraignment, the accused Vino entered a plea of not
guilty. Trial then commenced with the
presentation of evidence for the prosecution. Instead of presenting evidence in his own behalf, the accused filed a
motion to dismiss for insufficiency of evidence to which the prosecutor filed
an answer. On January 21, 1986,^[2]
a decision was rendered by the trial court finding Vino guilty as an accessory
to the crime of murder and imposing on him the indeterminate penalty of
imprisonment of 4 years and 2 months of prision correccional as
minimum to 8 years of prision mayor as maximum. He was also ordered to indemnify the heirs
of the victim in the sum of P10,000.00 being a mere accessory to the crime and
to pay the costs.

The motion for reconsideration filed by the accused having been
denied, he interposed an appeal to the Court of Appeals. In due course, a Decision was rendered
affirming the judgment of the lower court.^[3]

Hence, the herein petition for review wherein the following
grounds are invoked:

1.  “THAT AN ACCUSED CAN NOT BE CONVICTED AS
AN ACCESSORY OF THE CRIME OF MURDER FOR HAVING AIDED IN THE ESCAPE OF THE
PRINCIPAL IF SAID ACCUSED IS BEING CHARGED SOLELY IN THE INFORMATION AS
PRINCIPAL FOR THE SIMPLE REASON THAT THE CRIME PROVED IS NOT INCLUDED IN THE
CRIME CHARGED.

2.  THAT “AIDING THE ESCAPE OF THE
PRINCIPAL” TO BE CONSIDERED SUFFICIENT IN LAW TO CONVICT AN ACCUSED UNDER
ARTICLE 19, PARAGRAPH OF THE REVISED PENAL CODE MUST BE DONE IN SUCH A WAY AS
TO DECEIVE THE VIGILANCE OF THE LAW ENFORCEMENT AGENCIES OF THE STATE AND THAT
THE “ESCAPE” MUST BE ACTUAL;

3.  THE CONVICTION OF AN ACCESSORY PENDING THE
TRIAL OF THE PRINCIPAL VIOLATES PROCEDURAL ORDERLINESS.”^[4]

During the pendency of the appeal in the Court of Appeals, the
case against Salazar in the JAGO was remanded to the civil court as he was
discharged from the military service. He
was later charged with murder in the same Regional Trial Court of Rosales,
Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading dated November 14, 1988, petitioner informed
this Court that Jessie Salazar was acquitted by the trial court in a decision
that was rendered on August 29, 1988.

The respondents were  required
to comment on the petition. The comment
was submitted by the Solicitor General in behalf of respondents. On January 18, 1989, the Court resolved to
deny the petition for failure of petitioner to sufficiently show that
respondent court had committed any reversible error in its questioned
Judgment. Hence, the present motion for
reconsideration to which the respondents were again required to comment. The required comment having been submitted,
the motion is now due for resolution.

The first issue that arises is that inasmuch as the petitioner
was charged in the information as a principal for the crime of murder, can he
thereafter be convicted as an accessory? The answer is in the affirmative.

Petitioner was charged as a principal in the commission of the
crime of murder. Under Article 16 of
the Revised Penal Code, the two other categories of the persons responsible for
the commission of the same offense are the accomplice and the accessory. There is no doubt that the crime of murder
had been committed and that the evidence tended to show that Jessie Salazar was
the assailant. That the petitioner was
present during its commission or must have known its commission is the only
logical conclusion considering that immediately thereafter, he was seen driving
a bicycle with Salazar holding an armalite, and they were together when they
left shortly thereafter. At least two
witnesses, Ernesto and Julius Tejada, attested to these facts. It is thus clear that petitioner actively
assisted Salazar in his escape. Petitioner’s liability is that of an accessory.

This is not a case of a variance between the offense charged and
the offense proved or established by the evidence, and the offense as charged
is included in or necessarily includes the offense proved, in which case the
defendant shall be convicted of the offense proved included in that which is
charged, or of the offense charged included in that which is proved.^[5]

In the same light, this is not an instance where after trial has
begun, it appears that there was a mistake in charging the proper offense, and
the defendant cannot be convicted of the offense charged, or of any other
offense necessarily included therein, in which case the defendant must not be
discharged if there appears to be a good cause to detain him in custody, so
that he can be charged and made to answer for the proper offense.^[6]

In this case, the correct offense of murder was charged in the
information. The commission of the said
crime was established by the evidence. There is no variance as to the offense committed. The variance is in the participation or
complicity of the petitioner. While the
petitioner was being held responsible as a principal in the information, the
evidence adduced, however, showed that his participation is merely that of an
accessory. The greater responsibility, necessarily
includes the lesser. An accused can be
validly convicted as an accomplice or accessory under an information charging
him as a principal.

At the onset, the prosecution should have charged the petitioner
as an accessory right then and there. The degree of responsibility of petitioner was apparent from the
evidence. At any rate, this lapse did
not violate the substantial rights of petitioner.

The next issue that must be resolved is whether or not the trial
of an accessory can proceed without awaiting the result of the separate charge
against the principal. The answer is
also in the affirmative. The
corresponding responsibilities of the principal, accomplice and accessory are
distinct from each other. As long as
the commission of the offense can be duly established in evidence the
determination of the liability of the accomplice or accessory can proceed
independently of that of the principal.

The third question is this – considering that the alleged
principal in this case was acquitted can the conviction of the petitioner as an
accessory be maintained?

In United States vs. Villaluz and Palermo,^[7]
a case involving the crime of theft, this Court ruled that notwithstanding the
acquittal of the principal due to the exempting circumstance of minority or
insanity (Article 12, Revised Penal Code), the accessory may nevertheless be
convicted if the crime was in fact established.

Corollary to this is United States vs. Mendoza,^[8]
where this Court held in an arson case that the acquittal of the principal must
likewise result in the acquittal of the accessory where it was shown that no
crime was committed inasmuch as the fire was the result of an accident. Hence, there was no basis for the conviction
of the accessory.

In the present case, the commission of the crime of murder and
the responsibility of the petitioner as an accessory was established. By the same token there is no doubt that the
commission of the same offense had been proven in the separate case against Salazar
who was charged as principal. However,
he was acquitted on the ground of reasonable doubt by the same judge who
convicted Vino as an accessory. The
trial court held that the identity of the assailant was not clearly
established. It observed that only
Julius Tejada identified Salazar carrying a rifle while riding on the bicycle
driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian, who were listed in the
information, who can corroborate the testimony of Julius Tejada, were not presented
by the prosecution.

The trial court also did not give due credit to the dying
declaration of the victim pinpointing Salazar as his assailant on the ground
that it was not shown the victim revealed the identity of Salazar to his father
and brother who came to his aid immediately after the shooting. The court a quo also deplored
the failure of the prosecution and law enforcement agencies to subject to
ballistic examinations the bullet slug recovered from the body of the victim
and the two empty armalite bullet empty shells recovered at the crime scene and
to compare it with samples taken from the service rifle of Salazar. Thus, the trial court made the following
observation:

“There appears to be a miscarriage of justice in this case due
to the ineptitude of the law enforcement agencies to gather material and
important evidence and the seeming lack of concern of the public prosecutor to
direct the production of such evidence for the successful prosecution of the
case.”^[9]

Hence, in said case, the acquittal of the accused Salazar is
predicated on the failure of the prosecution to adduce the quantum of evidence
required to generate a conviction as he was not positively identified as the
person who was seen holding a rifle escaping aboard the bicycle of Vino.

A similar situation may be cited. The accessory was seen driving a bicycle with an unidentified
person as passenger holding a carbine fleeing from the scene of the crime
immediately after the commission of the crime of murder. The commission of the crime and the
participation of the principal or assailant, although not identified, was
established. In such case, the Court
holds that the accessory can be prosecuted and held liable independently of the
assailant.

We may visualize another situation as when the principal died or
escaped before he could be tried and sentenced. Should the accessory be acquitted thereby even if the commission
of the offense and the responsibility of the accused as an accessory was duly proven? The answer is no, he should be held
criminally liable as an accessory.

Although in this case involving Vino the evidence tended to show
that the assailant was Salazar, as two witnesses saw him with a rifle aboard
the bicycle driven by Vino, in the separate trial of the case of Salazar, as
above discussed, he was acquitted as the trial court was not persuaded that he
was positively identified to be the man with the gun riding on the bicycle
driven by Vino. In the trial of the
case against Vino, wherein he did not even adduce evidence in his defense, his
liability as such an accessory was established beyond reasonable doubt in that
he assisted in the escape of the assailant from the scene of the crime. The identity of the assailant is of no
material significance for the purpose of the prosecution the accessory. Even if the assailant can not be identified
the responsibility of Vino as an accessory is indubitable.

WHEREFORE, the motion for reconsideration is denied and
this denial is FINAL.

SO ORDERED.

Narvasa, (Chairman), and
Medialdea, JJ., concur.

Cruz and Griño-Aquino,
JJ., see dissenting opinion.

^[1]
Exhibits A and A-1.

^[2]
Page 13, Rollo.

^[3]
Justice Bonifacio A. Cacdac, Jr., was the ponente, concurred in by
Justices Floreliana Castro-Bartolome and Ricardo L. Pronove, Jr.

^[4]
Pages 18 to 19, Rollo.

^[5]
Section 4, Rule 120, Rules of Court.

^[6]
Section 12, Rule 119, Rules of Court.

^[7]
32 Phil. 377 (1915).

^[8]
23 Phil. 194 (1912).

^[9]
Pages 71 to 74, Rollo.

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