G.R. No. 122733 October 2, 2000 The antecedent facts and proceedings in the instant case unfold.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, On 28 February 1994, Assistant Provincial Prosecutor Adolfo
vs. Alcoseba filed a motion to drop accused Rogelio Lascuña and
PEDRO SASAN BARIQUIT, CRISTITUTO SASAN BARIQUIT, Baselino Repe to be utilized as state witnesses, prompting the
BASELINO LASCUÑA REPE, EMEGDIO LASCUÑA, relatives of the deceased spouses Simon and Corazon Hermida
JR., accused-appellant. to file a vehement opposition, to which comment thereto was filed
by the prosecution.
DECISION
On 28 June 1994, Baselino Repe and brothers Pedro and
PER CURIAM: Cristituto Bariquit, and brothers Emegdio and Rogelio Lascuña,
were charged, in a Second Amended Information,3 with Robbery
In many ways - three times to be exact-the prosecution in the with Homicide, the accusatory portion of which reads:
instant case, through the testimony of state witness Rogelio
Lascuña, shatters the long-time aphorism that blood is thicker "That on or about the 8th day of February 1994 at around 2:00 o'
than water. clock dawn, more or less, in the Municipality of Naga, Province of
Cebu, Philippines and within the jurisdiction of this Honorable
On appeal via automatic review is the decision1 of the Regional Court, the above-named accused, conspiring, confederating and
Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU- mutually helping one another, by means of violence against and
35462, dated 30 June 1995, as modified by its order 2 dated 20 intimidation upon persons, with intent to gain, did then and there
July 1995, finding accused-appellants Pedro Bariquit, Cristituto willfully, unlawfully and feloniously take, steal and carry away
Bariquit, and Emegdio Lascuña guilty of the special complex without the consent of the owner thereof one (1) gold necklace
crime of Robbery with Homicide and sentencing them to suffer and Three Thousand Pesos (₱3,000.00) cash, Philippine
the penalty of death. Currency, and one (1) blanket which were placed by the owner
Spouses Simon Hermida and Corazon Manabat Hermida on their
wooden trunk, to the damage and prejudice of the said owner
In its order dated 20 July 1995, modifying its decision dated 30
spouses Simon Hermida and Corazon Manabat Hermida of said
June 1995, the trial court, while likewise finding co-accused
items and the cash aforestated; that by reason or on occasion of
Baselino Repe guilty of the crime charged, Nonetheless
the said robbery and for the apparent purpose of enabling the
appreciated the privileged mitigating circumstance of minority on
said accused to take, steal and carry away the aforestated
Repe’s favor, sentenced him to a reduced penalty of
personal belongings of spouses Simon Hermida and Corazon
imprisonment of from six (6) years and one(1) day of prision
Manabat Hermida, the herein accused, in pursuance of their
mayor, as minimum, to twelve (12) years and one (1) day
conspiracy, armed with bladed weapons, did then and there
of reclusion temporal, as maximum, and redeemed him from the
willfully, unlawfully and feloniously attack, assault, hack and stab
clutches of the supreme penalty of death. At the time of the
the spouses Simon Hermida and Corazon Manabat Hermida and
commission of the crime, accused Repe was seventeen years
inflicting upon them several injuries which caused the said
old.
victims' death.
CONTRARY TO LAW." and circumstances which led to the death of spouses Simon and
Corazon Hermida in the hands of accused-appellants.
In an order dated 14 July 1994, the trial court resolved to drop
and discharge Rogelio Lascuña as "party-accused" in Criminal Around midnight of 07 February 1994, Rogelio was at their house
Case No. CBU-35462, for the purpose of utilizing him as state situated in Pandan, Naga, Cebu when his uncle Cristituto arrived
witness. thereat looking for Rogelio's older brother Emegdio. Rogelio told
Cristituto that Emegdio and Pedro were in the upper area
Upon arraignment, accused-appellant Pedro Bariquit entered a gathering coconuts.6 Cristituto requested Rogelio to accompany
plea of guilty while accused-appellants Cristituto Bariquit, him there.7 Upon reaching the upper hill together with Cristituto,
Emegdio Lascuña, Jr. and accused Baselino Repe, pleaded not Rogelio saw Pedro, Emegdio and Baselino standing, not anymore
guilty to the charge. engaged in gathering coconuts.8

In the course of trial, however, accused-appellant Pedro Bariquit Emegdio then asked his brother Rogelio if the latter would
withdrew his earlier plea of guilty and, upon being re-arraigned, participate in executing a plan to rob a certain couple. Rogelio
entered anew a plea of not guilty. refused and verbally manifested to Cristituto his intention to just
go home. Cristituto and Emegdio told Rogelio not to go home,
In handing down the judgment of conviction, the trial court fearing that Rogelio might reveal their devious plan to
appreciated the presence of conspiracy and relied on facts culled consummate the robbery.
from the collective testimony of state witness Rogelio Lascuña
and other prosecution witnesses namely: SPO3 Lino Tapao, PO1 On direct examination, Rogelio, likewise, testified that Pedro and
Avelino Selloria, PO1 Kenneth Abella, PO1 Joel Faciolan, Dr. Emegdio9 threatened to kill Baselino in case the latter would not
Florencio Ubas, and Emelia Hermida Mangila. Further, the trial participate in the robbery. According to Rogelio, Cristituto who
court considered the testimony of co-accused Baselino Repe for was then armed with a bolo, even held Baselino so as to prevent
the purpose of establishing the element of robbery in this special him from running away.10
complex crime.
On foot - Pedro, Emegdio, Cristituto, Baselino, and Rogelio
Records of the case reveal that state witness Rogelio Lascuña trekked toward the house of Simon and Corazon Hermida
and all the accused-appellants are bound by close kinship; thus, situated in Batwan, Cantaw-an, Naga, Cebu. Upon arrival at the
Rogelio and Emegdio Lascuña are brothers. In the same manner, vicinity of the Hermida's house around 1:00 AM of 08 February
Pedro and Cristituto Bariquit are brothers. Moreover, Rogelio and 1994, the group of five saw three persons engaged in a drinking
Emegdio are nephews of Pedro and Cristituto. Baselino Repe, spree inside the Hermida residence. The interior of the house
too, is a relative of Rogelio.4 was illuminated by a fluorescent lamp while its exterior was
lighted by a bulb. Notwithstanding ample lumination, Rogelio
Notwithstanding kinship and in utter disregard of blood ties, state testified that the three persons inside the Hermida's house were
witness Rogelio Lascuña, who at the time of the commission of unknown to him; he did not recognize them.
the crime, was 14 years old,5 recounted on the stand the details
Accused-appellants, together with Rogelio, then waited near a On the stand, Dr. Ubas testified that almost all of the wounds
mango tree which stood about 30 meters away from the inflicted on Corazon were fatal, since they caused loss of blood.
house.11 Around 2:00 AM, the three persons drinking inside the Further, Dr. Ubas explained that Simon's cause of death was
house left. Thereafter, Pedro instructed Rogelio to stay at a pig similarly loss of blood due to hack wounds "at the region of the
pen located 15-20 meters away from the Hermida house after- neck"20 inflicted by a sharp-edged instrument. As a result of these
which, Pedro walked toward the house12 closely followed by fatal wounds, Simon's "major vessels" as well as the victim's vital
Emegdio, Cristituto and Baselino. organs were injured,21 causing his death.

Upon reaching the house, Pedro called Simon on the pretext that As to the element of robbery, co-accused Baselino Repe,
he would buy Kulafu and cigarettes.13 However, Simon told Pedro although denying participation in the commission of the crime,
that only cigarettes were available; Pedro retorted that he would narrated on the witness stand how the other accused-appellants
just buy cigarettes after which Simon handed the cigarettes to stole the spouses' wooden trunk which contained money,
Pedro. necklace and blanket. Accused Baselino also corroborated with
Rogelio Lascuña's eyewitness account of the killing of the
Pedro then requested Simon for a light prompting the latter to Hermida spouses.
open the door and accede to Pedro's request. Once inside the
house - and as soon as Simon lit Pedro's cigarette - Pedro As to the robbery, accused Baselino testified that Pedro, after
suddenly pulled out his knife and lunged it on Simon's stabbing Corazon several times, went down the house.22 Emegdio
neck.14 While Simon was already lying prostrate on the then requested Cristituto to help carry the wooden
floor,15 Emegdio followed suit and hacked Simon once on the neck trunk.23 According to Baselino, as all of these events transpired,
with a bolo. Pedro then stabbed Simon's wife, Corazon, who tried Pedro guarded him with watchful eyes and grabbed his left
to fight back. Corazon managed "to pull a knife beside the wall," hand.24
stabbing Pedro on his left palm.16 However, Pedro stabbed
Corazon again which, eventually, caused the latter's death. Subsequently, Cristituto and Emegdio brought the wooden trunk
to the bushes. With Pedro's assistance, Cristituto and Emegdio
At the time of the stabbing, Cristituto stayed outside the opened said trunk which contained money, necklace and a
house,17 holding Baselino, with his left hand and a bolo with his blanket.25 Baselino was then ordered to sit down beside the
right hand. After witnessing the killing, Rogelio scampered toward accused-appellants.26 Thereafter, Pedro, Emegdio and Cristituto
his house and arrived thereat around 3:00 PM. brought the money and necklace to the house of Emegdio with
Pedro holding Baselino by the hand. At Emegdio's house,
To bolster its case, the prosecution presented the testimony of Emegdio told the other accused-appellants that they would divide
Dr. Florencio Ubas, Medical Health Officer of Naga, Cebu, who the loot among themselves. Pedro, Emegdio and Cristituto then
conducted and prepared the autopsy report of the deceased placed the loot on the floor.
spouses Simon and Corazon Hermida. According to Dr. Ubas,
Corazon sustained thirteen (13) fatal wounds inflicted by a sharp- Around 5:00 AM, Baselino, by jumping downstairs, managed to
edged instrument18 and a sharp-pointed instrument,19 while Simon escape and fled home.27 In the same morning, Pedro and
sustained five (5) wounds. Emegdio dropped by Baselino's house and tried to offer the
necklace and part of the money to Baselino; however, Baselino
refused, prompting Pedro and Emegdio to just leave the money operation and proceeded to Umlang where barangay tanods met
and necklace on the floor of Baselino's house.28 Before leaving the Pedro, who eluded arrest.
house, Pedro and Emegdio threatened to kill Baselino in case he
squeals about the robbery and the killing. Eventually, Pedro was arrested at Sitio Nangka, Tuyan, Cebu.
From his possession, cash amounting to ₱480.5034 and Japanese
On the stand, Baselino claimed that he never touched the money wartime money were recovered by the police. According to SPO3
offered by Pedro and Emegdio. He asservated his innocence and Tapao, Pedro, upon his arrest, told police that his hand was
categorically denied any participation in the commission of the injured when Corazon resisted and stabbed him in the process.35
crime. According to Baselino, his presence at the crime scene
was against his free will, inasmuch as the other accused- SPO3 Tapao further testified that Emegdio and Baselino were
appellants were steadfast in their threats to end his life if he were jointly arrested on 08 February 1994 at Sitio, Isabela, Pangdan,
to divulge the crime and fail to participate, or join them in the Cebu. During investigation, Emegdio admitted that "they were
execution thereof. together, but they were not the one(s) who killed (the spouses)." 36

Similarly, the prosecution, in order to strengthen its bid for Emegdio pointed to Pedro and Cristituto as the killers of Simon
conviction, utilized the testimony of the police officers who and Corazon Hermida.37 Based on such information, Emegdio and
responded to and investigated the robbery-killing. Thus, SPO3 Baselino were brought to the police station for further
Lino Tapao testified that around 7:30 AM of 08 February 1994, investigation.38 Thereafter, at the police headquarters, Emegdio
Feliciano Reponte, the Barangay Captain of Cantau-an, Naga, admitted that Rogelio was also one of their companions.39 As a
Cebu, reported to the police the death of the spouses Simon and consequence, the police returned to Isabela, Pandan, where they
Corazon Hermida. As a result, SPO3 Tapao responded to the saw Rogelio and invited him to the police station for questioning. 40
alarm and proceeded to the Hermida house, accompanied by
P03 Boy Celoria, Dr. Florencio Ubas, Barangay Captain Feliciano According to SPO3 Tapao, the police recovered ₱480.50 from
Reponte and several Barangay Tanods.29 Pedro; gold necklace and ₱800.00 from Baselino;41 and ₱800.00
from Emegdio.42
Upon arrival at the Hermida house, the police laid eyes on the
bloodied bodies of Simon and Corazon Hermida sprawled on the On direct examination, SPO1 Avelino Selloria testified to the
floor of the upper part of the victims' residence.30 Further, the effect that he recovered a knife from Baselino and that the latter
police recovered from the crime scene an "electrical switch" and admitted that said knife was the weapon Baselino brought during
"bark of tree", both stained with blood. Moreover, inside a culvert the incident.43 Notwithstanding, Baselino claimed he had no
at Pandan, the police recovered a blanket.31 participation in the commission of the crime. Further, Baselino
allegedly told SPO1 Selloria that the money recovered from the
At the scene of the crime, the police interviewed relatives of the former was Baselino's share of the proceeds of the crime.
victims32 and, from them, elicited information that the possible
assailants were accused-appellants Pedro Bariquit, Emegdio According to SPO1 Selloria, he recovered ₱800.00 from
Lascuña, Cristituto Bariquit and accused Baselino Repe.33 Acting Emegdio;44 Emegdio allegedly got the ₱800.00 from the "upper
on such information, the police conducted a "hot pursuit"
portion of his house", turned over said amount to Selloria and Q: At the time when the accused was investigated, was there any
admitted that said cash was his share.45 lawyer who assisted him at the time of the investigation?

Upon the arrest of Baselino and Emegdio, the police immediately Atty. Flores: Immaterial and irrelevant, Your Honor because as a
commenced investigation of the two accused by propounding matter of fact, Your Honor, also, Your Honor, another ground is
questions regarding the commission of the crime even while that witness was not around, he did not see whether there was a
they were still walking along the highway, on their way to the lawyer or not.
police station.46 (emphasis ours)
COURT: No. The ground for that is not correct, because the
According to SPO1 Selloria, SPO4 Marcelino Perez, Jr. testimony witness stated (sic) he drive away some of the
conducted further questioning of the accused "in the investigation onlookers.
room" of the Police Station, to wit:47
Atty. Dela Victoria: He was not listening.
"Q: Who conducted then the custodial investigation of this case?
Court: Yes, he was not listening.
A: SPO4 Marcelino Perez, Jr.
Atty. Dela Victoria: It was your theory that there was actually an
Q: Where was the accused investigated? investigation conducted?

A: At the investigation room. COURT: There was an investigation, according to him, by an

investigator and you asked him whether he was present
Q: And where was this investigation room located? during that investigation. He said he was present, only he did
not hear and see the investigation because the door was
A: Inside the police station, in a certain room. closed, and you asked him whether at the time of the
investigation, accused was assisted by a lawyer during that
custodial investigation.
Q: When the accused were investigated, were you present?
(to witness):
A: We were there but we did not listen to the investigation.
Q: You did not see any lawyer there to assist the accused
Q: But you could see the accused being investigated?
during investigation?
A: No sir. That time, there were many people looking but the
A: I did not notice.
investigation room was closed in order that people will not disturb
the investigation.
Q: You mean to say there was a lawyer but you did not
notice?
A: I don't know whether there was lawyer at that time the the simultaneous arrest of Baselino and Emegdio by the police on
investigation was conducted." (emphasis ours) 08 February 1994.

At the trial, the prosecution likewise presented PO1 Kenneth For his defense, Pedro Bariquit, a former farm worker of the
Abella and PO1 Joel Faciolan, who corroborated the testimonies Hermida spouses,53 relied similarly on alibi to substantiate his
of SPO3 Lino Tapao and SPO1 Avelino Selloria. claim that at the time of the commission of the crime, he was
asleep with his wife and three children in their house from 8:00
As to the aspect of civil liability, Emelia Hermida Mangila, PM of 07 February to 08 February 1994.54 Pedro testified that it
daughter of the deceased spouses, took the witness stand to would take an hour, by foot, for a person to reach the Hermida
prove the funeral and burial expenses incurred as a result of the residence from his house. He, too, is unaware of any reason on
death of her parents,48 which totaled ₱70,000.00. The prosecution the part of Rogelio to implicate him to the robbery-killing.55
submitted in evidence a receipt issued by the Holy Spirit Funeral
Home49 covering said expenses. On direct examination, Pedro admitted that the police recovered
the amount of ₱600.00 from his possession. Nonetheless, he
On the other hand, the accused-appellants - with the exception of denied knowing the owner of said amount, claiming that when
accused Baselino Repe who maintained that he had no Emegdio brought the money to his house and gave it to his wife,
participation in the commission of the crime - raised the twin he was not present.56
defenses of alibi and denial. Thus, accused-appellant Emegdio
Lascuña testified that around 2:00 AM of 08 February 1994, he At the time of Pedro's arrest, he had a wound on his "knuckle and
was sleeping in his parents' house at Isabela, Naga, Cebu, palm" which he allegedly sustained in an accident with his "tri-
together with his siblings George and Estela, and his sikad" on 07 February 1995.
grandmother. On the stand, Emegdio admitted that he and the
deceased spouses were neighbors inasmuch as Simon and Thus, on cross-examination:57
Corazon lived "just a kilometer away from Emegdio's house." 50
"Q: What cause (sic) that wound, stone or a knife when you
Emegdio added that he only acquired knowledge of the stumbled?
commission of the crime from his neighbor's aunt, Conchita Tam-
isan, who informed him thereof around 7:00 AM of 08 February A: Certain sharp object, it so happened when I stumbled, I
1994. Further, Emegdio declared that the travel time from his accidentally placed my hand left palm on it (sic).
house to the Hermida residence is approximately twenty (20)
minutes.51
Q: And it penetrated your palm front and back?
In the same manner, Cristituto Bariquit claimed innocence of the
Atty. Dela Victoria: Already answered.
charge by interposing the defense of alibi. Cristituto alleged that
at the time of the commission of the crime, he was cooking rice in
the house of his parents-in-law in Sitio Isabela,52 in preparation for COURT: For emphasis witness may witness.
his carpentry work for the day. He also testified that he witnessed
Witness: Yes it penetrated in the other side (sic)."
Unlike the other accused-appellants, accused Baselino Repe "2. The trial court erred in convicting accused-appellants
negotiated a different road in his bid for acquittal. Thus, while despite failure of the prosecution to prove their guilt
Pedro, Emegdio and Cristituto relied on alibi and denial, Baselino beyond reasonable doubt."
admitted, on the stand, his presence at the crime scene, narrated
the harrowing details of the robbery-killing, yet, denied We find the guilty verdict of the trial court, as to accused-
participation in the execution thereof. appellants Pedro Bariquit, Cristituto Bariquit and Emegdio
Lascuña, in order.
Hence, Baselino, in the course of trial, labored to establish that he
was not part of the conspiracy and was only coerced to join As to the first assigned error, accused-appellants in effect assail
accused-appellants for fear of his life. According to Baselino, he the propriety of the discharge of Rogelio Lascuña as state
was left with no choice inasmuch as the other accused- witness on the ground that Rogelio's testimony was not
appellants-the actual authors of the crime-threatened to kill him corroborated in its material points, allegedly in violation of Section
and, in fact, employed physical force so that he would not leave 9, Rule 119 of the 1985 Rules on Criminal Procedure, which
the group and squeal about the crime. enumerates the requisites of a proper discharge, to wit:

On 30 June 1995, the RTC of Cebu City, Branch 18, in "a) There is absolute necessity for the testimony of the
appreciating the presence of conspiracy, convicted accused- accused whose discharge is requested;
appellants Pedro Bariquit, Emegdio Lascuña, Cristituto Bariquit
and accused Baselino Repe of the special complex crime of "b) There is no other direct evidence available for the
robbery with homicide and, accordingly, sentenced them to death. proper prosecution of the offense committed, except the
testimony of said accused;
On 20 July 1995, however, the trial court modified its decision as
to the penalty imposed on accused Repe, considering that he "c) The testimony of said accused can be
was a minor at the time of the commission of the crime. Repe substantially corroborated in its material points;
opted not to appeal his conviction; the conviction of the other
accused-appellants, however, was elevated to this High
"d) Said accused does not appear to be the most guilty;
Court via automatic review as a consequence of the death
penalty involved.
"e) Said accused has not at anytime been convicted of
any offense involving moral turpitude." (emphasis ours)
In the appellant's brief,58 the following errors were ascribed to the
trial court, to wit:
On this score, we are of the firm view that the testimony of state
witness Rogelio Lascuña was, in its material points, substantially
"1. The trial court erred in giving weight and credit to the
corroborated by the testimony of accused-appellant Baselino
testimony of state witness Rogelio Lascuña despite lack
Repe, and the findings of Dr. Valentin Ubas, who conducted and
of corroboration in its material points.
prepared the autopsy report of the victim spouses, and who
testified thereon in the course of trial. Verily, corroborative
evidence refers to additional evidence of a different kind and Even so, this Court has time and again declared that even if the
character tending to prove the same point.59 discharged witness should lack some of the qualifications
enumerated by Section 9, Rule 119 of the Rules of Court, his
Notably, the respective testimonies of Baselino Repe and Dr. testimony will not, for that reason alone, be discarded or
Ubas lends material corroboration to the eyewitness account of disregarded. In the discharge of a co-defendant, the court may
Rogelio Lascuña, specifically as to the killing of the spouses reasonably be expected to err; but such error in discharging an
Simon and Corazon. During trial, both Rogelio and Baselino accused has been held not to be a reversible one. This is upon
positively identified Pedro and Emegdio as the assailants who the principle that such error of the court does not affect the
stabbed and hacked the victim spouses with a knife and bolo on competency and the quality of the testimony of the discharged
that fateful early morning of 08 February 1994. The witnesses defendant.63
also depicted how the conspiracy was hatched and carried out,
with accused-appellant Cristituto directly participating therein. Stated differently, the improper discharge, of an accused will
Moreover, Dr. Ubas testified that Simon and Corazon died as a not render inadmissible his testimony nor detract from his
result of several stab and hack wounds, inflicted by sharp- competency as a witness.64 (emphasis ours)
pointed and sharp-edged instruments, on different parts of
their bodies. Once the discharge is ordered, any future development showing
that any, or all, of the five conditions have not been actually
Beyond this, long-settled is the rule that the discharge of a fulfilled, may not affect the legal consequences of the
defendant, in order that he may be called to testify against his co- discharge,65 and the admissibility and credibility of his testimony if
defendants, is within the sound discretion of the court;60 the otherwise admissible and credible.66 Any witting or unwitting error
discharge of an accused in order that he may be utilized as a of the prosecution in asking for the discharge, and of the court
state witness is expressly left to the sound discretion of the granting the petition, no question of jurisdiction being involved,
court.61 cannot deprive the discharged accused of the acquittal provided
by the Rules,67 and of the constitutional guarantee against double
Indeed, the Court has the exclusive responsibility to see that the jeopardy.68
conditions prescribed by the rule exist.62 For the law seeks to
regulate the manner of enforcement of the regulations in the As to the second assigned error, accused-appellants aver that the
sound discretion of the court. The grant of discretion in cases of prosecution failed to establish their guilt beyond reasonable
this kind under this provision was not a grant of arbitrary doubt. In support thereof, accused-appellants question the
discretion to the trial courts, but such is to be exercised with due admissibility of the testimonies of the police officers who
regard to the correct administration of justice. propounded questions and conducted the custodial investigation
without apprising them of their constitutional rights. Moreover,
Under these circumstances, the trial court, in ordering the accused-appellants argue that certain physical evidence such as
discharge of Rogelio Lascuña as state witness, merely exercised the blanket, passbook, bolo, knife, necklace, Japanese money,
its discretion in a manner consistent with the law and prevailing wallet and cash are likewise inadmissible in evidence, inasmuch
jurisprudence. as the same were recovered and obtained by the police as a
result of accused-appellants' uncounselled admission.
After an exhaustive perusal of the records, we find inadmissible inquiry into an unsolved crime but starts to focus on a particular
the uncounselled extra-judicial admission of accused-appellants, person as suspect, i.e., when the police investigator starts
as well as the testimonies of the police officers pertaining thereto, interrogating or exacting a confession from the suspect in
for having been obtained in clear violation of accused-appellants' connection with an alleged offense.71
rights enshrined in the Constitution.
Thus, in People vs. Bolanos,72 we considered inadmissible the
Section 12, Article III of the Constitution explicitly provides: verbal extra-judicial admission of accused-appellant Ramon
Bolanos on the ground that he, "being already under custodial
" 1) Any person under investigation for the commission of an investigation while on board the police patrol jeep on the way
offense shall have the right to be informed of his right to remain to the Police Station where formal investigation may have been
silent and to have competent and independent counsel preferably conducted, should have been informed of his constitutional rights
of his own choice. If the person cannot afford the services of "under Article 3, Section 12" of the 1987 Constitution."
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel. In the recent case of People vs. Bravo,73 where we applied the
exclusionary rule, this Court, speaking through Madame Justice
"X X X X X X X X X Minerva Gonzaga-Reyes, aptly observed:

"3) Any confession or admission obtained in violation of this or "The accused was under arrest for the rape and killing of Juanita
Section 17 hereof shall be inadmissible in evidence against him. Antolin and any statement allegedly made by him pertaining to his
possible complicity in the crime without prior notification of his
"X X X" constitutional rights is inadmissible in evidence. The policeman's
apparent attempt to circumvent the rule by insisting that
admission was made during an `informal talk' prior to custodial
Verily, the mantle of protection under this constitutional provision
investigation proper is not tenable."
covers the period from the time a person is taken into custody for
investigation of his possible participation in the commission of a
crime, or from the time he is singled out as a suspect in the Analogously in the present case, the police authorities, upon the
commission of the crime, although not yet in custody.69 Courts are arrest of Emegdio and Baselino, immediately asked questions
not allowed to distinguish between preliminary questioning and and conducted custodial investigation of said accused-appellants
custodial investigation proper when applying the exclusionary regarding their participation in the commission of the crime, even
rule. Any information or admission given by a person while in while they were still walking along the highway on their way to
custody - which may appear harmless or innocuous at the time the police station. Records reveal that no counsel was present to
without the competent assistance of an independent counsel - assist Emegdio and Baselino during the interrogation nor was
should be struck down as inadmissible.70 accused-appellants informed of their rights under the
Constitution.
It bears stressing that the rights under Section 12 are accorded to
"any person under investigation for the commission of an During trial, SPO1 Avelino Selloria testified:
offense." An investigation begins when it is no longer a general
"Q: Along the way, as you said, you have conducted investigation "A: They said they had planned the robbery.
on Repe. What questions did you ask Mr. Repe?
"ATTY. SARINO:
"A: We asked both Repe and Emegdio as to who were their
companions. "Q: Who said that?

"Q: That was all you asked both of them? That was the only "A: Emegdio.
question you asked them?
"Q: It was only Emegdio who said that?
"A: We asked them who were their companions and where
were they. "A :Because it was him whom I asked, because we were
walking along the road." (emphasis ours)
"Court:
Moreover, on cross-examination, SPO1 Selloria stated:74
"Q: And what was their answer?
"A: From the area where we arrested them, we asked
"A: They mentioned, as their companions, Pedro Bariquit, questions along the way.
Cristituto Bariquit and Roel Lascuña and they further informed me
they had come here already to Tuyan. Pedro and Roel were in "Q: When you asked questions, the accused were already
Tuyan. They informed me that and (sic) Roel was just in Isabela, under your custody?
Pangdan.
"A: Yes, sir. We were walking along.
xxx xxx xxx
"Q: Therefore, when under custody, that person is under
"Q: So aside from these 2 questions, no other questions were custodial investigation?
asked on Emegdio Lascuña and Baselino Repe?
"Atty. Flores: He is asking for opinion.
"A: Yes sir.
"COURT: Reform.
"Q: What (was) their answer?
"Atty. Dela Victoria:
"A: We asked them why they robbed and killed.
"Q: What were the questions you asked to the accused?
"COURT:

"Q: What was their answer?

"A: We asked whether they were the ones who robbed the In the instant case, the police officers were remiss in performing
couple, Simon Hermida and Corazon Hermida." (emphasis such duty and the prosecution equally failed to discharge such
ours) burden. The records, indeed, are bereft of any finding that the
police labored to properly apprise accused-appellants of their
To our mind, the interrogation conducted by the police on rights. Further, no counsel was present when Emegdio and
accused-appellants Emegdio and Baselino falls under the term Baselino answered the questions propounded to them by the
"custodial investigation" pursuant to prevailing jurisprudence and police, both along the highway and at the police station.
the provisions of Republic Act 7438. It may not be amiss to
observe that under R.A. 7438, the requisites of a "custodial In view of these constitutional infirmities attendant to the
investigation" are applicable even to a person not formally interrogation, we consider the extrajudicial admissions of
arrested but merely "invited for questioning.75 accused-appellants and the testimonies of the police officers in
relation thereto inadmissible.
In the case before us, it is of no moment that the questioning was
done along the highway while Baselino and Emegdio were For, even if the confession contains a grain of truth, but it was
being led by the police to the station. To put it differently, the made without the assistance of counsel, it becomes inadmissible
place of interrogation is not at all a reliable barometer to in evidence, regardless of the absence of coercion or even if it
determine the existence or absence of Custodial investigation. Of had been voluntarily given.77
striking material significance is and the fact that the tone and
manner of questioning by the police, as gleaned from the records, Applying the exclusionary rule, we also declare inadmissible the
reveal that they already presumed accused-appellants as the money and necklace recovered from accused-appellants for
perpetrators of the crime and singled them out as the despicable being tainted as "fruits of the poisonous tree." Clearly, the records
authors thereof. show that such evidence were derived or recovered from a
polluted source, to wit, the accused-appellants' uncounselled
Under these circumstances, the police authorities should have admissions.
properly apprised them of their constitutionally-protected rights,
without which such uncounselled admissions or any other In People vs. Alicando,78 this Court explicated the principle, to
evidence obtained as a result thereof, or proceeding therefrom - wit:
the putrid source - are deemed likewise inadmissible in evidence
against the accused-appellants. " We have not only constitutional ized the Miranda warnings in
our jurisdiction. We also have adopted the libertarian exclusionary
In this jurisdiction, the burden to prove that an accused waived rule known as the "fruit of the poisonous tree", a phrase minted
his rights to remain silent and the right to counsel before making by Mr. Justice Felix Frankfurter in the celebrated case of Nardone
a confession under custodial investigation rests with the vs. United States.79 According to this rule, once the primary source
prosecution. It is also the burden-of the prosecution to show that (the 'tree') is shown to have been unlawfully obtained, any
the evidence derived from confession is not tainted as "fruit of the secondary or derivative evidence (the 'fruit') derived from it is also
poisonous tree." The burden has to be discharged by clear and inadmissible. Stated otherwise, illegally seized evidence is
convincing evidence.76 obtained as a direct result of the illegal act, whereas the fruit of
the poisonous tree' is the indirect result of the same illegal act. and the act of one is the act of all. The degree of actual
The fruit of the poisonous tree' is at least once removed from the participation in the commission of the crime is immaterial.80
illegally seized evidence but it is equally inadmissible. The rule is
based on the principle that evidence illegally obtained by the Consequently, accused-appellants' defense of alibi must fail in
State should not be used to gain other evidence because the view of the positive identification of Pedro, Emegdio and Cristituto
originally illegally obtained evidence taints all evidence as the perpetrators of the crime. Alibi is one of the weakest
subsequently obtained." defenses an accused can invoke, and the courts have always
looked upon it with caution, if not suspicion, not only because it is
Notwithstanding the inadmissibility of the uncounselled inherently unreliable, but likewise because it is easy to
confessions and certain pieces of object evidence such as the fabricate.81 To prosper, alibi must strictly meet the requirements of
necklace and money, we still hold that the prosecution clearly time and place.82 Thus, the accused must establish by clear and
proved the guilt of accused-appellants Pedro Bariquit, Cristituto convincing evidence that he was so far away that it was not
Bariquit and Emegdio Lascuña, beyond reasonable doubt. It is possible for him to have been physically present at the locus
well to note that the eyewitness account of Rogelio Lascuña, criminis or its immediate vicinity at the time the crime was
coupled with the testimony of accused Baselino Repe and further committed.
corroborated by the testimony and findings of Dr. Valentin Ubas,
suffice to convict accused-appellants of the crime charged. Again, the accused-appellants miserably failed to discharge this
burden. On the stand, Emegdio testified that his house is merely
In the instant case, the prosecution, through the testimony of twenty minutes away from the Hermida residence.83 In the same
state witness Rogelio Lascuña, as corroborated by the vein, Pedro testified that a person coming from his house could
recollection of Baselino Repe on the witness stand, indubitably reach, by foot, the Hermida residence in about an hour.
established the presence of conspiracy among the accused-
appellants Pedro, Cristituto and Emegdio in the commission of To our mind, the short distances and negligible time between
the crime. Clearly, the acts of Pedro, Emegdio and Cristituto accused-appellants' residences and the place of the commission
before, during and after the commission of the crime confirm that of the crime negate their defense of alibi. Beyond this, alibi is
the accused-appellants-- animated by a joint purpose and corrupt unavailing in light of the positive identification by credible
design, that is to rob the Hermida spouses-acted in unison and witnesses who narrated the details of the killing and the robbery.
concerted effort in the execution of the planned robbery.
This Court affords ample weight and credence to the testimonies
Evidently, the meeting at the upper hill area, the hatching of the of state witnesses Rogelio Lascuña and Baselino Repe. In doing
planned robbery, the stabbing, hacking and killing of the Hermida so, we are not unmindful of the principle that the testimony of a
spouses, the threats directed against Baselino Repe, the co-accused turned state witness should be received with great
asportation of the wooden trunk containing the valuables and the caution and should be carefully scrutinized.84 Hence, we treated
division of the loot -- taken collectively -- substantiate and lend a with circumspection the gleaming fact that Rogelio Lascuña is a
formidable factual basis to the trial court's finding of conspiracy blood relative of accused-appellants. The records show that state
among Pedro, Emegdio and Cristituto. Crystalline is the rule that witness Rogelio Lascuña and accused-appellant Emegdio are
where conspiracy is established, the precise modality or extent of brothers.
participation of each individual conspirator becomes secondary
To be sure, this circumstance has not escaped our focus and Hence, the conviction of accused-appellants Pedro Bariquit,
attention, thus the rationale for the greater weight and credibility Cristituto Bariquit and Emegdio Lascuña stands. As to the
accorded to Rogelio's narration. Human experience and common aggravating circumstances, we hold that the trial court erred in
knowledge taught us that no brother would ever thrust his own appreciating the presence of treachery and band in the
flesh and blood down the pit of death, fully cognizant of the commission of the felony. 1âw phi1

irreversible repercussions of his in-court testimony, were he not

impelled by the strongest urge to speak the language of truth. In the present case, the accused-appellants were charged with,
Only a man cursed with a depraved mind and a perverted heart tried, and convicted for the crime of robbery with homicide. In our
could perpetrate such falsehood. jurisdiction, this special complex crime is primarily classified as a
crime against property and not against persons, homicide being a
The trial court, in believing the version of facts as recollected by mere incident of the robbery with the latter being the main
Rogelio Lascuña, found the state witness to have spoken only purpose and object of the criminal.86
one language-that of truth. Absent any clear showing that Rogelio
was actuated by ill-motive and selfish ends, and fortified by the Under Article 14 of the Revised Penal Code, treachery is
fact that Rogelio is a close relative of accused-appellants, this applicable only to crimes against persons.87 Accordingly,
Court a fortiori finds his narration truthful and unblemished by inasmuch as robbery with homicide is a crime against property
falsehood. and not against persons, treachery cannot be validly considered
in the present case.
Many times beyond numbering, we have enunciated the rule that
to sustain a conviction for the crime of robbery with homicide, it is Further, the aggravating circumstance of band may not be
imperative that the robbery itself be proven conclusively as any appreciated in the commission of the crime. Jurisprudence is
other essential element of a crime.85 consistent that band is deemed aggravating whenever more than
three armed malefactors shall have acted together in the
To this end, the prosecution clearly established that the purpose commission of the offense.88 (emphasis ours)
of the accused-appellants in killing the victim spouses was to
ensure the success of their previous devious plan-to rob Simon In view of the fact that only three accused-appellants- Pedro
and Corazon Hermida. Thus, while it may be true that the Bariquit, Cristituto Bariquit and Emegdio Lascuña-conspired and
"homicide" preceded the taking of the victims' valuables, the participated in the robbery-killing, band was not attendant in the
killing of the spouses was nonetheless perpetrated for the aim of commission of the felony.
eliminating an obstacle, removing an opposition to the robbery
and doing away with witnesses. Accordingly, the death of the Nevertheless, this Court considers the attendance of fraud,
victims arose by reason, or on occasion, of the robbery; the dwelling and evident premeditation in the commission of the
pieces of evidence adduced and presented by the prosecution offense.
divulge a direct relation and intimate connection between the
asportation of the Hermida's valuables and their brutal death in
Fraud consists of insidious words or machinations used to induce
the hands of the accused-appellants.
the victim to act in a manner which would enable the offender to
carry out his design.89 Hence, in a decided case where the
defendants, upon the pretext of wanting to buy a bottle of wine, approximately an hour before finally proceeding to the house to
induced the victim to go down to the lower story of his dwelling consummate the robbery-killing.
where the wine was stored, entered it when the door was opened
to him, and there commenced the assault which ended in his Clearly, the lapse of two hours-from 12:00 AM to 2:00 AM-suffice
death,90 this Court appreciated the aggravating circumstance of to satisfy the third requisite and allow accused-appellants to
fraud.91 meditate and reflect upon the consequences of their criminal acts.

In the case before us, accused-appellants managed to enter the Thus, in one case,95 we held that there was evident premeditation
house of the victims-spouses by employing insidious words and where two hours passed from the time the accused clung to his
machinations, specifically by feigning to buy Kulafu and cigarettes determination to kill the victim, up to the actual perpetration of the
from Simon. Pedro even requested Simon to light his cigarette so crime. Moreover, evident premeditation can be presumed where
that the latter would open the door and pave the way for the conspiracy is directly established96 , as in the instant case.
accused-appellants' entry into the house.
By way of civil indemnity, we affirm the trial court's award of
Likewise, dwelling is deemed aggravating in the instant case ₱100,000.00 for the deaths of Simon and Corazon Hermida.
where the crime was perpetrated in the house where the Hermida Further, we hold accused-appellants liable to pay the amount of
Spouses lived, and without any provocation from the victims ₱50,000.00 as moral damages pursuant to Articles 2219(1) and
Simon and Corazon.92 2206(3) of the Civil Code.

Similarly, evident premeditation attended the commission of the Considering that the crime was committed with the presence of
felony. For evident premeditation to aggravate a crime, there three aggravating circumstances,97 the amount of ₱20,000.00 is
must be proof, as clear as the evidence of the crime itself, of the also awarded as exemplary damages. Likewise, we grant an
following elements: (1) the time when the offender determined to award of ₱70,000.00 as actual damages representing the funeral
commit the crime; (2) an act manifestly indicating that he clung to and burial expenses incurred as a result of the death of Simon
his determination; and (3) sufficient lapse of time, between and Corazon Hermida, inasmuch as the evidence on record
determination and execution, to allow himself to reflect upon the supports such award.98
consequences of his act93 and to allow his conscience to
overcome the resolution of his will had he desired to harken to its Four Justices of the Court have continued to maintain the
warnings.94 unconstitutionality of Republic Act No. 7659 insofar as it
prescribes the death penalty; nevertheless, they submit to the
The prosecution in the present case established by clear and ruling of the majority to the effect that the law is constitutional and
convincing evidence, as to how and when the planned robbery that the death penalty can be lawfully imposed in the case at bar.
was hatched. As borne by the records, accused-appellants met at
the upper hill area around 12:00 AM of 08 February 1994, where Nonetheless, as to accused Baselino Repe, we hold that the
the planned robbery was agreed upon and visualized. Thereafter, prosecution failed to prove his guilt beyond reasonable doubt and
accused-appellants, armed with bladed weapons, trekked from that the trial, court gravely erred in convicting Repe of the crime
the place of assemblage toward the victims' residence and, upon charged considering that the lower court overlooked
arrival at the vicinity thereof, waited under a mango tree for
circumstances and misappreciated certain material facts, which, if Likewise, the records are clear that the threats directed against
weighed and treated with deeper circumspection, would lead to Repe by the three accused-appellants-his relatives at that were
Repe’s acquittal. real and present. Accused-appellants Pedro, Emegdio and
Cristituto were all armed with bladed weapons and persistently
At this point, it bears emphasis that the basis of Repels conviction and aggressively showed their resolve to harm and kill Repe if the
is riveted on the trial court's conclusion, albeit erroneous, that latter would not participate or join them at the scene of the crime;
accused Repe conspired and cooperated with the other accused- the chance for escape was hence-nil. Pitted against Pedro,
appellants in the commission of the crime. Emegdio and Cristituto-Repe was clearly no match.

Certainly, a painstaking review and appraisal of the evidence Stated differently, the compulsion exerted was of such nature and
disclose that, contrary to the trial court's findings, Repe was not character as to leave him no genuine opportunity for self-defense
part of the conspiracy; the prosecution was remiss in establishing in equal combat or for escape.102
Repe’s overt acts clearly showing his intention and participation in
the criminal design. Needless to say, evidence of intentional Even state witness Rogelio Lascuña testified that the accused-
participation is indispensable.99 appellants hurled serious threats and employed physical force
against Repe.103 Similarly, the records are bereft of any showing
To this end, overt acts of the accused may consist of active that Repe agreed with Pedro, Emegdio and Cristituto to join the
participation in the actual commission of the crime itself, or it robbery, nor that Repe acted in a manner manifesting
may consist of moral assistance to his co-conspirators by being commonality of design and purpose.104 The fact that Repe and
present at the time of the commission of the crime, or by Emegdio were arrested together around 3:00 PM of 08 February
exerting moral ascendancy over the other co-conspirators by 1994 does not militate against Repe’s bid for acquittal inasmuch
moving them to execute or implement the conspiracy.100 as the records reveal that it was Emegdio who approached and
visited Repe in his house to ask the latter for a "young
On the contrary, Repe did not actively participate in the coconut."105 All told, without evidence-clear and convincing at that-
commission of the crime; Repe did not extend any moral as to how accused Repe participated in the perpetration of the
assistance to the other accused-appellants, as in fact, from the crime, conspiracy cannot be appreciated against him.106
time of inception of the plan up to its execution, he strongly
refused to assent and join the malefactors or profit from the fruits Undoubtedly, a verdict of conviction must hinge itself on the
of the crime. Moreover, Repe did not exercise moral ascendancy strength of the prosecution's evidence, definitely not on the
over the accused-appellants, as he was even the one coerced weakness or impotency of the evidence for the defense. As the
and threatened to be present at the crime scene, for fear of his evidence for the prosecution fell short of the quantum of proof
own life. required to prove Repe’s guilt beyond the peradventure of doubt,
this Court is then duty-bound to pronounce Repels acquittal and
By itself, mere presence at the scene of the crime at the time of strike down the judgment of conviction upon him.
its commission is not sufficient to establish conspiracy.101
WHEREFORE, in view of the foregoing, accused Baselino Repe
is hereby ACQUITTED on grounds of reasonable doubt and
ordered released immediately, unless he is being detained for
some other legal cause.

As to the accused-appellants Pedro Bariquit, Cristituto

Bariquit and Emegdio Lascuña, this Court finds them guilty of
the special complex crime of Robbery with Homicide and hereby
sentences each of them to suffer the supreme penalty of death.

In addition, accused-appellants Pedro Bariquit, Cristituto Bariquit

and Emegdio Lascuña are ordered to pay jointly and severally the
heirs of Simon and Corazon Hermida the amount of ₱100,000.00
as civil indemnity; ₱50,000.00 as moral damages; ₱20,000.00 as
exemplary damages; and ₱70,000.00 as actual damages.

Pursuant to Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this
decision, let the records of this case be forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED