G.R. No.

L-69346
G.R. No. L-69346 August 31, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRUDENCIO NULLA ALBERTO JIMENEZ, BEMBO CUNAG and
EFREN VELASCO (At large), accused-appellants.

NARVASA, J.:

On or about March 20, 1981 Agustin Mecaral, a merchant of some means,

and the owner of a pump boat named "Two Brothers," caused the loading of
56 sacks of rice on the boat at barangay Agpangi, Naval, Leyte, and
thereafter set sail to sell the rice at some nearby islands. With him on board
were four crew members, namely: Prudencio Nulla, Bembo Cunag, Efren
Velasco, and William Sanchez, They sold the rice at P160.00 per sack at the
islands of Maripipi (Leyte), Sto. Nino (Samar), and Almagro (Samar). This
done, they sailed back for home, with only 1 1/2 sacks left of their original
cargo. The evening of March 22, 1981 found them near Maripipi Island
(Leyte).

At about 7 o'clock that night, Mecaral was struck on the head twice with a
bolo wielded by Prudencio Nulla, causing him to drop to the deck, senseless.
The boat's anchor and a trailer (push cart) were then tied to Mecaral's body,
after which he was thrown overboard. Mecaral slowly sank into the dark
waters, never to be seen again. His money, the proceeds from the sale of the
rice, was taken from him before he was cast into the sea.

Mecaral's crewmen continued on their voyage back to Naval, Leyte. They

beached at barangay Aslom, Naval, at around 11 o'clock that same night.
Here they met Alberto Jimenez; and here, too, were brought, on Nulla's
instructions, his wife and their three children. Then Nulla and his family set
sail for Cebu. With Nulla were Sanchez and Cunag, but not Velasco, who
opted to part with the group at that point. Jimenez followed in another pump
boat, but only up to Bigatangan Island.

Nulla and his companions landed the following day at Bitoon, Cebu. From
there they proceeded to Cebu City on a Pantranco bus. After two days they
boarded an inter-island vessel for Tagum, Davao where they stayed for a
month, after which they returned to Cebu. They were arrested shortly upon
their arrival at Cebu by P.C. soldiers, and brought to Leyte on the same pump
boat belonging to their deceased employer, the "Two Brothers."

Velasco, after leaving his companions at Naval, went to Tacloban City, and
then to Calbayog City. From Calbayog, he sent a telegram to Mecaral's widow,
Lourdes, advising of her husband's slaying.

Upon being investigated by PC officers at Naval, Leyte on September 24,

1981, Cunag, Nulla and Sanchez gave written statements, Identified at the
trial as Exhibits C, D. and 1, respectively. The statements were signed and
sworn to before Judge Jose Patino, of the Municipal Trial Court of Naval,
after the latter had apprised the trio of their constitutional rights and
translated the contents of their statements to them in the vernacular. The
judge also conducted a preliminary investigation as regardsd Nulla and
Velasco. 1

The foregoing narrative is not subject of dispute. Indeed, it conforms

substantially to the appellants' own versions of the occurrences. 2 It is as
regards the manner in which the killing of Mecaral was done, and the
immediately attendant circumstances, that the accused mainly take issue
with the State.

In early December, 1981, the Provincial Fiscal filed with the Regional Trial
Court an information charging Nulla, Cunag Jimenez and Velasco with
robbery with homicide, for having killed Agustin Mecaral and robbed him of
P10,000.00, Philippine Currency. The indictment also alleged that the crime
was aggravated by the following circumstances, to wit:

1. That the act was committed with treachery and evident

premeditation;

2. That the act was committed by outraging or scoffing at the corpse

of the deceased Agustin Mecaral;

3. That the crime was committed during nighttime and in an

uninhabited place;

4. That the wrong done in the commission of the crime was

deliberately augmented by causing other wrong not necessary for its
commission, that is, by tying the cadaver of the deceased .. to an
iron trailer and anchor and then dumped (sic) the cadaver into the
sea to prevent discovery.

Nulla pleaded guilty on arraignment, but later took the witness stand in an
attempt to establish the justifying circumstance of self-defense. Cunag and
Jimenez entered pleas of not guilty. Velasco was never arraigned and is at
large to this day. Separate trials were held at the instance of the accused.

On September 12, 1984 the Trial Court 3 promulgated judgment declaring

Nulla, Cunag and Jimenez guilty beyond reasonable doubt of the special
complex felony of robbery with homicide under Article 294 (1) of the Revised
Penal Code, and sentencing them as follows:

Prudencio Nulla as principal has to pay his debt to society. His plea
of guilty is offset by treachery, nocturnity, uninhabited place and
cruelty. May the Lord have mercy on his soul. He is given the death
penalty and ordered to indemnify the heirs of Agustin Mecaral the
sum of P20,000.00 without subsidiary imprisonment in case of
insolvency and to pay half the costs. In the event that he is not
executed he is credited with four-fifths of his preventive
 imprisonment.

Bembo Cunag as accomplice is sentenced to suffer and undergo

reclusion perpetua, to indemnify the heirs of Agustin Mecaral
P10,000.00 without subsidiary imprisonment in case of insolvency
and to pay half the costs. He is credited with the full term of
preventive detention.

Alberto Jimenez as accessory is sentenced to suffer and undergo

imprisonment of from six (6) years of prision correccional as
minimum to ten (10) years of prision mayor as maximum, to
indemnify the heirs of Agustin Mecaral the sum of P2,000.00
without subsidiary imprisonment in case of insolvency.

All three have appealed to this court. They ascribe several errors to the court
a quo. The central issue that they raise, as might be expected, is one of
credibility: they contend that their version of the material occurrences should
have been accepted by the Trial Court as reflective of the truth. They also
contend that in the resolution of this basic question-

1) their extra-judicial confessions should be disregarded because taken in

violation of their constitutional rights; and

2) the testimony of the State's "star witness," William Sanchez, one of the
crew of the pump boat, "Two Brothers," should be disbelieved and discarded.

The appellants do not disclaim the killing of Agustin Mecaral or the taking of
his money, from which they benefited. They assert however that Mecaral was
killed by Nulla in legitimate defense of his person; and the taking of his
money was merely an afterthought, having been done so that it would not be
"wasted" by being thrown into the sea together with Mecaral,

The correctness of the claim for the exclusion of the extrajudicial confessions
of Nulla and Cunag must at the outset be declared. Quite apart from the
confessant affirmation that the confessions were wrung from them by
violence and intimidation, an affirmation that the Trial Court rejected in the
light of the testimony of MTC Judge Patino, 4 it is clear from the record that
these confessions were made during their custodial interrogation by the P.C.
officers without the assistance of counsel. As much is conceded by the
Solicitor General. 5 Those two (2) confessions must therefore be rejected and
disregarded, as this Court has rejected and disregarded similar confessions in
People v. Galit 135 SCRA 465, 472, and other subsequent cases. 6

The elimination of the extra-judicial confessions leaves the testimony of

William Sanchez, one of the crew members of the victim's pump boat, "Two
Brothers," as the sole foundation for the verdict of guilt against the
appellants. But Sanchez' testimony is not to be spurned out of hand merely
because it stands alone against evidence given by three other witnesses 7
asseverating the contrary with respect to the actual killing. It is axiomatic that
witnesses are weighed, not numbered, and the testimony of a single witness
may suffice for conviction if otherwise trustworthy and reliable. 8

Sanchez' testimony negates any notion of self-defense in the killing of Agustin

Mecaral. He describes the slaying as follows: 9

At that time, he and Mecaral were lying on top (the roof) of the
boat's cabin. Prudencio Nulla came "from the rear portion of the
motor launch (and) went up to the cabin carrying . . a bolo" in his
right hand, measuring "about eighteen inches including the handle."
Nulla "went towards the back of Agustin Mecaral, .. suddenly raised
his bolo and . . hacked Agustin" who was hit in the head twice.
Mecaral fell to the hull (deck). Nulla then "ordered Boy Velasco by
saying: "Boy, you get the money." " Velasco obeyed. He "got the
money from the person of Agustin Mecaral" and "gave the money to
Prudencio Nulla."

Nulla next "ordered Bimbo Cunag by saying; Bo, you get the trailer
and the anchor. " " Cunag did so, bringing over the anchor and the
 trailer, both "made of iron" with a combined weight of 65 kilos. The
trailer and anchor were tied to Mecaral's body by Nulla and Cunag
with the "rope ... attached to the anchor. " When this was finished,
Nulla "ordered Efren Velasco to slow down the engine because they
will drop the dead body. " Nulla and Cunag then "threw the dead
body to the sea," which "slowly sank. "

Nulla, on the other hand, gives a quite different story. According to him. 10

... At past 6:00 o'clock in the afternoon the four of them, namely,
Agustin Mecaral, Cunag, Sanchez and he (Nulla) were gathered on
top of the cabin eating supper. They were seated in a circle. Cunag
and Sanchez reached/grabbed for the boiled (tinula) fresh fish but
Mecaral boxed them. Mecaral stood up and he also stood up and
went around but Mecaral boxed him twice in his abdomen. He
writhed in pain. His eyes went blurred and when they cleared he
saw that Mecaral was about to pick up his bolo so he beat Mecaral to
it and immediately hacked the latter once on the forehead. Mecaral
fell near the mask pole while he remained standing motionless and
speechless for quite some time. Velasco came out of the cabin,
called for Sanchez to take over the steering wheel and asked Cunag
whether Mecaral was still breathing. Velasco then ordered Cunag to
get the rope and bring over the anchor and trailer (push card) where
they tied the body of Mecaral. It was then that Velasco thought of
getting the money from the pocket of Mecaral saying that "I get this
money because if the body of Agustin Mecaral will fall to the sea the
money will be wasted" (TSN, hearing of October 25, 1983, pp. 23).
Then they dumped the body of Mecaral in the sea where it "slowly
sank".

From Nulla's account, which the other appellants do not at all question, there
is some indication that Agustin Mecaral might not have died from the single
bolo wound inflicted on him. Velasco, for one, felt impelled to ask if he was
"still breathing," as was not at all improbable. What is certain is that not one
of the three appellants, Nulla, Cunag and Velasco, even attempted to minister
to the wounded Mecaral. On the contrary, they were obviously all one in the
intention that Mecaral should die one way or the other, that he should not
survive the bolo wound, and that they should try to prevent discovery of
Mecaral's body by weighing it down and dumping it into the sea. So, too, it is
certain from an examination of their testimony that they never entertained
any thought of turning over Mecaral's money to his widow. On the contrary,
they immediately proceeded to spend it by sojourning in different places for
more than a month, and showed no compunction whatever in using their
employer's pump boat to take them part way on their journey, although
vacation or junket might be the more appropriate term.

Conduct such as this is utterly inconsistent with innocence, or the justifiable

infliction of injury upon another in legitimate self-defense. On the contrary, it
disclose on appellants' part a willingness to kill to appropriate and obtain
illicit benefit and gratification from property belonging to another, and to
employ stratagems to avoid or delay detection of their nefarious acts.

It does not furthermore appear to the Court to be credible that Mecaral would
fly into a fit of uncontrollable rage and start boxing three (3) of his crew men,
simply because two of them had "grabbed" some fish which they were all
having for supper anyway.

This Court cannot therefore accept appellant Nulla's plea of justifiable self-
defense, and sustains the findings of the Court a quo on the matter as correct,
not only because of the time honored doctrine that great respect shall be
accorded to a trial court's conclusions on the credibility of witnesses because
it is in a better position to observe directly and at first hand the mien and
demeanor of witnesses while giving testimony, 11 but also because the
veracity of those findings is confirmed by this Court's own review and
assessment of the proofs.

In the first place, by Nulla's own testimony, he had foiled Mecaral's attempt
to get hold of a bolo by getting ahead of Mecaral and taking it. There was thus
no need at all for him to use the bolo on Mecaral, as the Trial Court has
pointed out, citing People vs. Ciria, 106 SCRA 381; and as further observed
by that Court, there was at the time no unlawful aggression on the part of the
victim and hence, in view of the absence of this primordial element, there can
be no "self-defense, complete or incomplete. 12

Moreover, a person having no intention to kill anyone, with no thought in

mind except to protect himself from being boxed by another, and who
succeeds in preventing the latter from getting hold of a bolo by himself taking
it — this being the factual situation described by the appellants — would
surely, not immediately and unhesitatingly use the bolo to strike a blow at so
vital a part of person's body as the head, absent, as here, any showing that the
victim, on being frustrated in the attempt to get the bolo, sought to obtain
another weapon or otherwise to continue with his assault against three full-
grown, able-bodied men — an extremely unlikely assumption, to be sure —
and specially where, as here, those three (3) able-bodied men could
reasonably be expected to subdue their assailant should he persist in trying to
harm them. Surely, after having wounded and completely disabled an alleged
assailant in lawful self-defense, the first impulse of innocent men would have
been to attend to the injured assailant and give him such medical attention as
was available at the time, not forthwith to weigh down the hapless victim with
heavy objects and without waste of time drop him into the sea, thus
effectively eliminating all possible chance of survival the latter might
otherwise have had. Surely, the immediate decision of the appellants to make
free with the victim's money and motor launch in order to go on a trip, either
for enjoyment or to escape the consequences of their acts of "the illegality of
which they could not but be fully aware, is entirely and irreconcilably
inconsistent with a profession of innocence, and lack of community of
purpose or design.

This Court is thus convinced not only that Nulla had failed to discharge the
burden reposed on him by the law to prove self-defense in justification of the
killing admitted by him, 13 but also that the evidence does establish beyond
doubt that Nulla attacked Mecaral without warning, without the latter having
any intimation that such an attack was forthcoming, and without his having
any opportunity whatever to defend himself against the assault; that the
killing was not a senseless, or suddenly provoked act, but was deliberately
planned, the motive being to take the victim's money amounting to what no
doubt seemed to the accused to be quite a tidy sum, the proceeds of sales of
rice which Nulla and his companions knew beforehand the victim would vend
in different places and in the sale of which they had in fact assisted. In other
words, Nulla killed Mecaral by reason, and as part of his plan to rob the latter.
He has thus committed the special complex crime of robbery with homicide,
defined and penalized by paragraph 1, Article 294 of the Revised Penal Code.
14

This Court is also in agreement with the Trial Court that the crime was
attended by the aggravating circumstances of treachery, in that the attack
was sudden and unexpected, done in a manner tending directly and specially
to insure execution of the crime without risk to the offender arising from the
defense which the offended person might make; 15 of nocturnity, in that the
darkness of evening was taken advantage of in the commission of the offense
and in truth facilitated it; 16 and of uninhabited place, in that the felony was
perpetrated in the open sea, where if no help could be expected by the victim
from other persons and the offenders could easily escape punishment. 17
There being no adequate proof of whether or not Mecaral was still alive when
he was thrown into the sea, indeed, the constant reference is to his "dead
body" in the testimony of prosecution witness Sanchez, the aggravating
circumstance of cruelty will not be appreciated against Nulla.

Cunags participation in the crime is also proven beyond reasonable doubt.

Without hesitation or protestation of any sort, he immediately lent assistance
and cooperation to Nulla after the latter had rendered the victim hors de
combat. He fetched the anchor and the steel cart or trailer and helped Nulla
attach this to Mecaral's unconscious and unresisting person and afterwards
throw the unfortunate man into the deep sea. He willingly took part in the
taking and use of the victim's pump boat, and in the use and enjoyment of his
money; and he accompanied Nulla on a month-long sojourn in various
places, no doubt spending the victim's money in the process. These acts may
not suffice to adjudge him liable as a co-conspirator, or a co-principal, lacking
proof of a prior act or statement evincing his prior knowledge and approval of
Nulla's evil intent. They definitely suffice to make him responsible as an
accomplice within the contemplation of Article 18 of the Revised Penal Code,
as a person who, not being a principal as defined in Article 17 of said Code,
nonetheless cooperated in the commission of the offense by simultaneous or
contemporaneous acts.

Upon the foregoing considerations, the Court pronounces as without merit

the argument that the offenders should be found liable not for the special
complex crime of robbery with homicide but for the separate felonies of
homicide and robbery. There is no question in the Court's mind that the
prosecution has satisfactorily proved that the killing of Mecaral was done by
reason or on occasion of the taking of his money. Similarly, the Court declares
as unmeritorious the contention that William Sanchez, the State's "star
witness" is biased, who succumbed by reason of his youth and illiteracy to
promises of immunity or other benefit in consideration of becoming a
prosecution witness. 18 Nothing in the testimony of either Nulla or Cunag
even remotely reveals any act on his part in the commission of the offense.
There was hence on crime for which he could be charged, and in relation to
which he could be promised immunity. And nothing in the record shows him
to be motivated by other than the desire to tell the truth in testifying against
his companions.

Respecting the third appellant, Alberto Jimenez, the Solicitor General

recommends acquittal The evidence as to him is that when the motor launch
of the murdered Mecaral ran aground at the shore of Sto. Nino, Naval, Leyte,
Jimenez was there with a flashlight and a bolo; that Jimenez asked Nulla, "Is
it through?" and Nulla had answered, "Don't worry, it is already finished;"
that this was followed by another question from Jimenez, "Where is my
share?" in response to which Nulla had said, "Don't you worry about your
share, I have it here;" that Jimenez had given Nulla and his companions a
gallon of gasoline; and that when Nulla and his companions sailed away,
Jimenez followed in his own motor launch "up to near Higatangan." Nothing
however can be read into the fact that Jimenez met his co-accused at the
beach, considering that Jimenez' house was only "five or 6 arms length"
(about 15 meters) from the spot where the boat stopped. And his questions
are, as the Solicitor General argues, susceptible of two interpretations: as an
inquiry of whether the robbery and killing had been accomplished, or as
inquiring whether the sale of the rice had been completed and whether his
share in the proceeds was forthcoming. Under the circumstances, this Court
will absolve Jimenez on reasonable doubt, in application of its earlier rulings,
invoked by the Solicitor General, viz:

If the inculpatory facts and circumstances are capable of two or

more explanations, one of which is consistent with the innocence of
the accused of the crime charged and the other consistent with their
guilt, then the evidence does not fulfill the test of moral certainty
and is not sufficient to support a conviction. 19

It is better to acquit a man upon the ground of reasonable doubt,

even though he may, in reality, be guilty than to confine in the
penitentiary a person who may be innocent. 20

The Trial Court sentenced appellant Nulla to death, appreciating against him
the aggravating circumstances of nocturnity, uninhabited place, and
treachery, 21 offset only by the single mitigating circumstance of voluntary
plea of guilt. It however ultimately reduced that penalty to reclusion perpetua
in view of the abolition of the death penalty by the 1987 Constitution. 22 This
is correct. The Solicitor General opines that even without appreciating any
aggravating circumstance against Nulla, the result would be the same since
the imposable penalty, on account of the mitigating circumstance of plea of
guilty, would be the minimum of that prescribed, reclusion perpetua to
death; in other words, reclusion perpetua just the same.

With respect to the penalty to be imposed on Bembo Cunag, the Solicitor

General makes the following observations and recommendation:

The penalty prescribed . . is reclusion perpetua to death . .. Under

Article 52 of the Revised Penal Code, the penalty next lower in
degree than that prescribed by law for the consummated felony
shall be imposed upon the accomplices in the commission of a
consummated felony. Since the penalty next lower in degree to that
of reclusion perpetua to death is reclusion temporal (12 years and 1
day to 20 years), then this penalty should be meted to appellant
Bembo Cunag. Applying the Indeterminate Sentence Law, the
minimum penalty shall be that within the range of the penalty next
lower to that prescribed by the Revised Penal Code for the offense,
that is, prision mayor (6 years and 1 day to 12 years), and the
maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules
of the Revised Penal Code (Sec. 1, Act No. 4103 as amended by Act
No. 4225, ...).

Considering the presence of aggravating circumstances, we

therefore recommend that appellant Bembo Cunag be sentenced to
an indeterminate penalty of 10 years and 1 day of prision mayor as
minimum to 17 years, 4 months and 1 day of reclusion temporal as
maximum.

This Court accepts and approves the recommendation as a correct application

of the law.

WHEREFORE, the appealed judgment of the Regional Trial Court is affirmed

in so far as appellant Prudencio Nulla is concerned; as regards Bembo Cunag,
it is modified so as to reduce the sentence of imprisonment to an
indeterminate term of from 10 years and 1 day of prision mayor as minimum,
to 17 years, 4 months and 1 day of reclusion temporal as maximum, and
affirmed in all other respects; and with respect to appellant Alberto Jimenez,
said judgment is reversed and Jimenez is acquitted on reasonable doubt.
Costs are charged: 2/3 against appellants Nulla and Cunag and 1/3 de oficio.

Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez , Jr., Cruz,

Paras, Feliciano, Gancayco, Padilla , Bidin, Sarmiento, and Cortes, JJ.,
concur.

Footnotes

1 Exh. E; pp- 8-9, original record.

2 See Jimenez' brief: rollo pp. 30-31; Nulla's brief: rollo, pp. 88-89.

3 Branch XVI, RTC at Naval, Sub-province of Biliran, Leyte: Judge

Adriano R. Villamor, presiding.

4 See footnote I and related text at page 2, supra.

5 Appellee's Brief, p. 19.

6 People v. Sison, 142 SCRA 219; People v. Navoa, 143 SCRA 513;
People v. Poyos, 143 SCRA 542; SEE Sec. 12, ART III, 1987
Constitution.

7 The appellants, of course.

8 People v. Nabaunag, 79 SCRA 33.

9 TSN, June 2, 1983, pp. 28-37.

10 At pp. 6 and 7, his brief: pp. 88-89 of the rollo; see also, Jimenez'
 brief (pp. 30-31, rollo)

11 People v. Payao, 68 SCRA 70, 73-74; People v. de Leon, 128 SCRA

121.

12 Par. 1, Art. II, Revised Penal Code.

13 People v. Payan, 84 SCRA 353; People v. Lebunfacil, et al., 96

SCRA 573.

14 See U.S. v. Villorante, 30 Phil. 59; People v. Pacala, 58 SCRA

370; People vs. Libre, et al., 93 Phil 5, cited in Reyes, L.B., The
Revised Penal Code (Criminal Law), 1981 ed., Book II, pp. 606-607.

15 Par. 16, ART. 14, Revised Penal Code.

16 U.S. v. Perez, 32 Phil., 163; People v. Pineda, 565 Phil. 641.

17 People v. Rubia, 52 Phil. 172.

18 Nulla's brief, p. 95, rollo; pp. 7-8, Cunags brief.

19 People v. Pacana, et al., 47 Phil. 48, citing U.S. v. Maano, 2 Phil.

718.

20 People v. Manoji, 68 Phil. 47, citing People v. Asinas, 53 Phil. 59,

71.

21 Apart from cruelty.

22 Sec- 19 [1], ART. III.

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