EN BANC

[G.R. Nos. 138874-75. February 3, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO JUAN

LARRAÑAGA alias "PACO"; JOSMAN AZNAR; ROWEN
ADLAWAN alias "WESLEY"; ALBERTO CAÑO alias "ALLAN
PAHAK"; ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA
alias "TISOY TAGALOG"; JAMES ANTHONY UY alias
"WANGWANG"; and JAMES ANDREW UY alias "MM" ,
appellants.

DECISION

PER CURIAM : p

For most of the Cebuanos, the proceedings in these cases will always
be remembered as the "trial of the century." A reading of the voluminous
records readily explains why the unraveling of the facts during the hearing
before the court below proved transfixing and horrifying and why it resulted
in unusual media coverage.
These cases involve the kidnapping and illegal detention of a college
beauty queen along with her comely and courageous sister. An intriguing
tale of ribaldry and gang-rape was followed by the murder of the beauty
queen. She was thrown off a cliff into a deep forested ravine where she was
left to die. Her sister was subjected to heartless indignities before she was
also gang-raped. In the aftermath of the kidnapping and rape, the sister was
made to disappear. Where she is and what further crimes were inflicted upon
her remain unknown and unsolved up to the present.
Before us in an appeal from the Decision 1 dated May 5, 1999 of the
Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303-
45304, finding Rowen Adlawan alias "Wesley," Josman Aznar, Ariel Balansag,
Alberto Caño alias "Allan Pahak," Francisco Juan Larrañaga alias "Paco,"
James Andrew Uy alias "MM," and James Anthony Uy alias "Wang Wang,"
appellants herein, guilty beyond reasonable doubt of the crimes of
kidnapping and serious illegal detention and sentencing each of them to
suffer the penalties of "two (2) reclusiones perpetua" and to indemnify the
heirs of the victims, sisters Marijoy and Jacqueline Chiong, jointly and
severally, the amount of P200,000.00 as actual damages and P5,000,000.00
as moral and exemplary damages.
The Fourth Amended Informations 2 for kidnapping and illegal
detention dated May 12, 1998 filed against appellants and Davidson Rusia
alias "Tisoy Tagalog," the discharged state witness, read as follows:
1)Â For Criminal Case No. CBU-45303: 3

"xxx xxx xxx

 "That on the 16th day of July, 1997, at about 10:00 o'clock more
or less in the evening, in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, all private
individuals, conniving, confederating and mutually helping with one
another, with deliberate intent, did then and there willfully, unlawfully
and feloniously kidnap or deprive one Marijoy Chiong, of her liberty and
on the occasion thereof, and in connection, accused, with deliberate
intent, did then and there have carnal knowledge of said Marijoy
against her will with the use of force and intimidation and subsequent
thereto and on the occasion thereof, accused with intent to kill, did
then and there inflict physical injuries on said Marijoy Chiong throwing
her into a deep ravine and as a consequence of which, Marijoy Chiong
died.

"CONTRARY TO LAW."

2)Â For Criminal Case CBU-45304 : 4

"xxx xxx xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more
or less in the evening, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, all private
individuals, conniving, confederating and mutually helping with one
another, with deliberate intent, did then and there willfully, unlawfully
and feloniously kidnap or deprive one Jacqueline Chiong of her liberty,
thereby detaining her until the present.

"CONTRARY TO LAW."

On separate arraignments, state witness Davidson Rusia and

appellants Rowen Adlawan, Josman Aznar, Ariel Balansag, Alberto Caño,
James Andrew and James Anthony Uy pleaded not guilty. 5 Appellant
Francisco Juan Larrañaga refused to plead, hence, the trial court entered for
him the plea of "not guilty." 6 Thereafter, trial on the merits ensued.
In the main, the prosecution evidence centered on the testimony of
Rusia. 7 Twenty-one witnesses 8 corroborated his testimony on major points.
For the defense, appellants James Anthony Uy and Alberto Caño took the
witness stand. Appellant Francisco Juan Larrañaga was supposed to testify
on his defense of alibi but the prosecution and the defense, through a
stipulation approved by the trial court, dispensed with his testimony.
Nineteen witnesses testified for the appellants, corroborating their
respective defenses of alibi.
The version of the prosecution is narrated as follows:
On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong,
who lived in Cebu City, failed to come home on the expected time. It was
raining hard and Mrs. Thelma Chiong thought her daughters were simply
having difficulty getting a ride. Thus, she instructed her sons, Bruce and
Dennis, to fetch their sisters. They returned home without Marijoy and
Jacqueline. Mrs. Chiong was not able to sleep that night. Immediately, at
5:00 o'clock in the morning, her entire family started the search for her
daughters, but there was no trace of them. Thus, the family sought the
assistance of the police who continued the search. But still, they could not
find Marijoy and Jacqueline. 9
Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga
reported to the police that a young woman was found dead at the foot of a
cliff in Tan-awan, Carcar, Cebu. 10 Officer-in-Charge Arturo Unabia and three
other policemen proceeded to Tan-awan and there, they found a dead
woman lying on the ground. Attached to her left wrist was a handcuff. 11 Her
pants were torn, her orange t-shirt was raised up to her breast and her bra
was pulled down. Her face and neck were covered with masking tape. 12
On July 19, 1996, upon hearing the news about the dead woman, Mrs.
Chiong's son Dennis and other relatives proceeded to the Tupaz Funeral
Parlor at Carcar, Cebu to see the body. It was Marijoy dressed in the same
orange shirt and maong pants she wore when she left home on July 16,
1997. Upon learning of the tragic reality, Mrs. Chiong became frantic and
hysterical. She could not accept that her daughter would meet such a
gruesome fate. 13
On May 8, 1998, or after almost ten months, the mystery that engulfed
the disappearance of Marijoy and Jacqueline was resolved. Rusia, bothered
by his conscience and recurrent nightmares, 14 admitted before the police
having participated in the abduction of the sisters. 15 He agreed to re-enact
the commission of the crimes. 16
On August 12, 1998, Rusia testified before the trial court how the
crimes were committed and identified all the appellants as the perpetrators.
He declared that his conduit to Francisco Juan Larrañaga was Rowen
Adlawan whom he met together with brothers James Anthony and James
Andrew Uy five months before the commission of the crimes charged. 17 He
has known Josman Aznar since 1991. He met Alberto Caño and Ariel
Balansag only in the evening of July 16, 1997. IDCHTE

On July 15, 1997, while Rusia was loafing around at the Cebu Plaza
Hotel, Cebu City, Rowen approached him and arranged that they meet the
following day at around 2:00 o'clock in the afternoon. 18 When they saw each
other the next day, Rowen told him to stay put at the Ayala Mall because
they would have a "big happening" in the evening. All the while, he thought
that Rowen's " big happening" meant group partying or scrounging. He thus
lingered at the Ayala Mall until the appointed time came. 19
At 10:30 in the evening, Rowen returned with Josman. They met Rusia
at the back exit of the Ayala Mall and told him to ride with them in a white
car. Rusia noticed that a red car was following them. Upon reaching
Archbishop Reyes Avenue, same city, he saw two women standing at the
waiting shed. 20 Rusia did not know yet that their names were Marijoy and
Jacqueline.
Josman stopped the white car in front of the waiting shed and he and
Rowen approached and invited Marijoy and Jacqueline to join them. 21 But
the sisters declined. Irked by the rejection, Rowen grabbed Marijoy while
Josman held Jacqueline and forced both girls to ride in the car. 22 Marijoy was
the first one to get inside, followed by Rowen. Meanwhile, Josman pushed
Jacqueline inside and immediately drove the white car. Rusia sat on the front
seat beside Josman.
Fourteen (14) meters from the waiting shed, Jacqueline managed to get
out of the car. Josman chased her and brought her back into the car. Not
taking anymore chances, Rowen elbowed Jacqueline on the chest and
punched Marijoy on the stomach, causing both girls to faint. 23 Rowen asked
Rusia for the packaging tape under the latter's seat and placed it on the
girls' mouths. Rowen also handcuffed them jointly. The white and red cars
then proceeded to Fuente Osmeña, Cebu City.
At Fuente Osmeña, Josman parked the car near a Mercury Drug Store
and urged Rusia to inquire if a van that was parked nearby was for hire. A
man who was around replied "no" so the group immediately left. The two
cars stopped again near Park Place Hotel where Rusia negotiated to hire a
van. But no van was available. Thus, the cars sped to a house in Guadalupe,
Cebu City known as the safehouse of the "Jozman Aznar Group." Thereupon,
Larrañaga, James Anthony and James Andrew got out of the red car.
Larrañaga, James Anthony and Rowen brought Marijoy to one of the
rooms, while Rusia and Josman led Jacqueline to another room. Josman then
told Rusia to step out so Rusia stayed at the living room with James Andrew.
They remained in the house for fifteen (15) to twenty (20) minutes. At that
time, Rusia could hear Larrañaga, James Anthony, and Rowen giggling inside
the room.
Thereafter, the group brought Marijoy and Jacqueline back to the white
car. Then the two cars headed to the South Bus Terminal where they were
able to hire a white van driven by Alberto. Ariel was the conductor. James
Andrew drove the white car, while the rest of the group boarded the van.
They traveled towards south of Cebu City, leaving the red car at the South
Bus Terminal.
Inside the van, Marijoy and Jacqueline were slowly gaining strength.
James Anthony taped their mouths anew and Rowen handcuffed them
together. Along the way, the van and the white car stopped by a barbeque
store. Rowen got off the van and bought barbeque and Tanduay rhum. They
proceeded to Tan-awan. 24 Then they parked their vehicles near a precipice
25 where they drank and had a pot session. Later, they pulled Jacqueline out

of the van and told her to dance as they encircled her. She was pushed from
one end of the circle to the other, ripping her clothes in the process.
Meanwhile, Josman told Larrañaga to start raping Marijoy who was left inside
the van. The latter did as told and after fifteen minutes emerged from the
van saying, "who wants next?" Rowen went in, followed by James Anthony,
Alberto, the driver, and Ariel, the conductor. Each spent a few minutes inside
the van and afterwards came out smiling. 26
Then they carried Marijoy out of the van, after which Josman brought
Jacqueline inside the vehicle. Josman came out from the van after ten
minutes, saying, "whoever wants next go ahead and hurry up." Rusia went
inside the van and raped Jacqueline, followed by James Andrew. At this
instance, Marijoy was to breathe her last for upon Josman's instruction,
Rowen and Ariel led her to the cliff and mercilessly pushed her into the
ravine 27 which was almost 150 meters deep. 28
As for Jacqueline, she was pulled out of the van and thrown to the
ground. Able to gather a bit of strength, she tried to run towards the road.
The group boarded the van, followed her and made fun of her by screaming,
"run some more." There was a tricycle passing by. The group brought
Jacqueline inside the van. Rowen beat her until she passed out. The group
then headed back to Cebu City with James Andrew driving the white car.
Rusia got off from the van somewhere near the Ayala Center. 29
There were other people who saw snippets of what Rusia had
witnessed. Sheila Singson, 30 Analie Konahap 31 and Williard Redobles 32
testified that Marijoy and Jacqueline were talking to Larrañaga and Josman
before they were abducted. Roland Dacillo 33 saw Jacqueline alighting and
running away from a white car and that Josman went after her and grabbed
her back to the car. Alfredo Duarte 34 testified that he was at the barbeque
stand when Rowen bought barbeque; that Rowen asked where he could buy
Tanduay; that he saw a white van and he heard therefrom voices of a male
and female who seemed to be quarreling; that he also heard a cry of a
woman which he could not understand because "it was as if the voice was
being controlled;" and that after Rowen got his order, he boarded the white
van which he recognized to be previously driven by Alberto Caño.
Meanwhile, Mario Miñoza, 35 a tricycle driver plying the route of Carcar-
Mantalongon, saw Jacqueline running towards Mantalongon. Her blouse was
torn and her hair was disheveled. Trailing her was a white van where a very
loud rock music could be heard. Manuel Camingao 36 recounted that on July
17, 1997, at about 5:00 o'clock in the morning, he saw a white van near a
cliff at Tan-awan. Thinking that the passenger of the white van was throwing
garbage at the cliff, he wrote its plate number (GGC-491) on the side of his
tricycle. 37
Still, there were other witnesses 38 presented by the prosecution who
gave details which, when pieced together, corroborated well Rusia's
testimony on what transpired at the Ayala Center all the way to Carcar.
Against the foregoing facts and circumstances, the appellants raised
the defense of alibi, thus:
Larrañaga, through his witnesses, sought to establish that on July 16,
1997, he was in Quezon City taking his mid-term examinations at the Center
for Culinary Arts. In the evening of that day until 3:00 o'clock in the morning
of July 17, 1997, he was with his friends at the R & R Bar and Restaurant,
same city. Fifteen witnesses testified that they were either with Larrañaga or
saw him in Quezon City at the time the crimes were committed. His friends,
Lourdes Montalvan, 39 Charmaine Flores, 40 Richard Antonio, 41 Jheanessa
Fonacier, 42 Maharlika Shulze, 43 Sebastian Seno, 44 Francisco Jarque, 45
Raymond Garcia, 46 Cristina Del Gallego, 47 Mona Lisa Del Gallego, 48 Paolo
Celso 49 and Paolo Manguerra 50 testified that they were with him at the R &
R Bar on the night of July 16, 1997. The celebration was a "despedida" for
him as he was leaving the next day for Cebu and a "bienvenida" for another
friend. Larrañaga's classmate Carmina Esguerra 51 testified that he was in
school on July 16, 1997 taking his mid-term examinations. His teacher
Rowena Bautista, 52 on the other hand, testified that he attended her lecture
in Applied Mathematics. Also, some of his neighbors at the Loyola Heights
Condominium, Quezon City, including the security guard, Salvador Boton,
testified that he was in his condo unit in the evening of July 16, 1997.
Representatives of the four airline companies plying the route of Manila-
Cebu-Manila presented proofs showing that the name Francisco Juan
Larrañaga does not appear in the list of preflight and post-flight manifests
from July 15, 1997 to about noontime of July 17, 1997.
Meanwhile, James Anthony Uy testified that on July 16, 1997, he and
his brother James Andrew were at home in Cebu City because it was their
father's 50th birthday and they were celebrating the occasion with a small
party which ended at 11:30 in the evening. 53 He only left his house the next
day, July 17, 1997 at about 7:00 o'clock in the morning to go to school. 54
The boys' mother, Marlyn Uy, corroborated his testimony and declared that
when she woke up at 2:00 o'clock in the morning to check on her sons, she
found them sleeping in their bedrooms. They went to school the next day at
about 7:00 o'clock in the morning. 55
Clotilde Soterol testified for Alberto and Ariel. She narrated that on July
16, 1997, at around 7:00 o'clock in the evening, Alberto brought the white
Toyota van with Plate No. GGC-491 to her shop to have its aircon repaired.
Alberto was accompanied by his wife Gina Caño, co-appellant Ariel, and
spouses Catalina and Simplicio Paghinayan, owners of the vehicle. Since her
(Clotildes') husband was not yet around, Alberto just left the vehicle and
promised to return the next morning. Her husband arrived at 8:30 in the
evening and started to repair the aircon at 9:00 o'clock of the same evening.
He finished the work at 10:00 o'clock the following morning. At 11:00 o'clock,
Alberto and his wife Gina, Ariel and Catalina returned to the shop to retrieve
the vehicle. 56 Alberto, 57 Gina 58 and Catalina 59 corroborated Clotilde's
testimony.
To lend support to Josman's alibi, Michael Dizon recounted that on July
16, 1997, at about 8:00 o'clock in the evening, he and several friends were
at Josman's house in Cebu. They ate their dinner there and afterwards drank
"Blue Label." They stayed at Josman's house until 11:00 o'clock in the
evening. Thereafter, they proceeded to BAI Disco where they drank beer and
socialized with old friends. They stayed there until 1:30 in the morning of July
17, 1997. Thereafter, they transferred to DTM Bar. They went home together
at about 3:00 o'clock in the morning. Their friend, Jonas Dy Pico, dropped
Josman at his house. 60
Concerning state witness Rusia, on August 7, 1998, when the
prosecution moved that he be discharged as an accused for the purpose of
utilizing him as a state witness, 61 Larrañaga and brothers James Anthony
and James Andrew opposed the motion on the ground that he does not
qualify as a state witness under Section 9, Rule 119 of the Revised Rules of
Court on Criminal Procedure. 62 On August 12, 1998, the trial court allowed
the prosecution to present Rusia as its witness but deferred resolving its
motion to discharge until it has completely presented its evidence. 63 On the
same date, the prosecution finished conducting Rusia's direct examination.
64 The defense lawyers cross-examined him on August 13, 17, and 20, 1998.
65 On the last date, Judge Ocampo provisionally terminated the cross-

examination due to the report that there was an attempt to bribe him and
because of his deteriorating health. 66
Resenting the trial court's termination of Rusia's cross-examination, the
defense lawyers moved for the inhibition of Judge Ocampo. 67 When he
informed the defense lawyers that he would not inhibit himself since he
found no "just and valid reasons" therefor, the defense lawyers withdrew en
masse as counsel for the appellants declaring that they would no longer
attend the trial. Judge Ocampo held them guilty of direct contempt of court.
Thus, defense lawyers Raymundo Armovit, Edgar Gica, Fidel Gonzales,
Ramon Teleron, Alfonso de la Cerna and Lorenzo Paylado were ordered
jailed.
In the Order dated August 25, 1998, the trial court denied the motion
for inhibition of the defense lawyers and ordered them to continue
representing their respective clients so that the cases may undergo the
mandatory continuous trial. The trial court likewise denied their motion to
withdraw as appellants' counsel because of their failure to secure a prior
written consent from their clients. On August 26, 1998, appellants filed their
written consent to the withdrawal of their counsel. ASHICc

Thereafter, Larrañaga, Josman and brothers James Anthony and James

Andrew moved for the postponement of the hearing for several weeks to
enable them to hire the services of new counsel. 68 On August 31, 1998, the
trial court denied appellants' motions on the ground that it could no longer
delay the hearing of the cases. On September 2, 1998, the trial court
directed the Public Attorney's Office (PAO) to act as counsel de oficio for all
the appellants. 69
Trial resumed on September 3, 1998 with a team of PAO lawyers
assisting appellants. Larrañaga objected to the continuation of the direct
examination of the prosecution witnesses as he was not represented by his
counsel de parte. The trial court overruled his objection. The prosecution
witnesses testified continuously from September 3, 1998 to September 24,
1998. Meanwhile, the cross-examination of said witnesses was deferred until
the appellants were able to secure counsel of their choice. On the same
date, September 24, 1998, Atty. Eric C. Villarmia entered his appearance as
counsel for Larrañaga, while Atty. Eric S. Carin appeared as counsel for
brothers James Anthony and James Andrew.
Thereafter, or on October 1, 1998, the defense lawyers started cross-
examining Rusia. The cross-examination continued on October 5, 6, 12 and
13, 1998.
Eventually, acting on the prosecution's motion to discharge Rusia to be
a state witness, the trial court required the opposing parties to submit their
respective memoranda. On November 12, 1998, the trial court issued an
omnibus order granting the prosecution's motion discharging Rusia as an
accused and according him the status of a state witness.
On May 5, 1999, the trial court rendered the assailed Decision, the
dispositive portion of which reads:

"WHEREFORE, all the accused Francisco Juan Larrañaga, Josman

Aznar, James Andrew Uy, James Anthony Uy, Rowen Adlawan, Alberto
Caño, and Ariel Balansag are hereby found Guilty beyond reasonable
doubt of two crimes of Kidnapping and Serious Illegal Detention and
are hereby sentenced to imprisonment of Two (2) Reclusiones Perpetua
each — which penalties, however, may be served by them
simultaneously (Article 70, Revised Penal Code). Further, said accused
are hereby ordered to indemnify the heirs of the two (2) victims in
these cases, jointly and severally, in the amount of P200,000.00 in
actual damages and P5,000,000.00 by way of moral and exemplary
damages.

"SO ORDERED."

Hence, the instant separate appeals. Appellants Rowen, Alberto and

Ariel ascribe to the trial court the following errors:

"I

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE

UNTRUSTWORTHY, INCONSISTENT, CONTRADICTORY AND
INCREDULOUS TESTIMONY OF (DAVIDSON) VALIENTE RUSIA.

''II

THE COURT A QUO ERRED IN ADMITTING THE TESTIMONY OF THE

PROSECUTION WITNESSES, NOTWITHSTANDING THE FACT THAT THE
DEFENDANTS WERE NOT DULY REPRESENTED BY COUNSELS OF THEIR
OWN CHOICE DURING THE TIME THESE WITNESSES WERE PRESENTED.

"III

THE COURT A QUO ERRED IN FINDING THAT THERE WAS CONSPIRACY

IN THE CASE AT BAR.

"IV

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES

OF THE PROSECUTION WITNESSES.

"V

THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY

TOWARDS THE DEFENSE'S WITNESSES WHICH CLEARLY SHOWED ITS
PREJUDICE AND BIAS IN DECIDING THE CASE.

"VI

THE COURT A QUO ERRED IN NOT ALLOWING SOME DEFENSE

WITNESSES TO TESTIFY.
 "VII

THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWAN TO

HAVE WAIVED PRESENTATION OF EVIDENCE IN HIS BEHALF."

For his part, Josman raises the following assignments of error:

"I

THE TRIAL COURT GRAVELY ERRED IN DISCHARGING DAVID VALIENTE

RUSIA AS STATE WITNESS IN GROSS AND BLATANT DISREGARD OF THE
RULES ON DISCHARGE OF STATE WITNESS.

"II

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO RUSIA'S

TESTIMONY DESPITE CLEAR SHOWING THAT HIS CRIMINAL RECORD —
AS AN EX-CONVICT, DRUG ADDICT AND GANGSTER — AND HIS
SUICIDAL TENDENCIES — SERIOUSLY IMPAIR HIS CREDIBILITY AND
INNATE CAPACITY FOR TRUTH, HONESTY AND INTEGRITY.

"III

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO RUSIA'S

TESTIMONY REPLETE AS IT WAS WITH INCONSISTENCIES, FALSEHOODS
AND LIES.

"IV

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO THE

CORROBORATIVE TESTIMONIES OF THE PROSECUTION WITNESSES.

"V

THE TRIAL COURT GRAVELY ERRED IN DENYING APPELLANT AZNAR HIS

RIGHT TO DUE PROCESS AND IN DEPRIVING HIM OF THE
CONSTITUTIONAL RIGHTS OF AN ACCUSED.

"VI

THE TRIAL JUDGE VIOLATED AZNAR'S RIGHT TO DUE PROCESS WHEN

THE TRIAL JUDGE REFUSED TO INHIBIT HIMSELF AND PROCEEDED WITH
THE TRIAL DESPITE GLARING BADGES OF HIS PARTIALITY AND BIAS
FOR THE PROSECUTION.

"VII

THE TRIAL COURT GRAVELY ERRED IN DISCREDITING AND

DISREGARDING THE DEFENSE OF APPELLANT AZNAR.

"VIII

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT AZNAR

ON THE BASIS OF PROSECUTING EVIDENCE MAINLY ANCHORED ON
RUSIA'S TESTIMONY WHICH FAILED TO EVINCE PROOF BEYOND
REASONABLE DOUBT OF APPELLANT AZNAR'S CRIMINAL LIABILITY."
 In his 145-page appellant's brief, Larrañaga alleges that the trial court
committed the following errors:

"6.1Â THE TRIAL COURT ERRED IN IGNORING AND VIOLATING

DUE PROCESS RIGHTS OF THE ACCUSED.

6.2Â THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF

ACCUSED DAVIDSON RUSIA.

6.3Â THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY

TO THE TESTIMONY OF DAVIDSON RUSIA.

6.4Â THE TRIAL COURT ERRED IN CONSIDERING THE

TESTIMONIES OF THE OTHER WITNESSES.

6.5Â THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE

TESTIMONIES OF OTHER WITNESSES.

6.6Â THE TRIAL COURT ERRED IN FINDING THAT THE

PROSECUTION HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION
OF INNOCENCE.

6.7Â THE TRIAL COURT ERRED IN DISREGARDING AND

REJECTING, EVEN AT DIRECT TESTIMONY STAGE, THE ACCUSED-
APPELLANT'S DEFENSE OF ALIBI." EHCaDS

For their part, brothers James Anthony and James Andrew, in their 147-
page appellants' brief, bid for an acquittal on the following grounds:

"A)Â THE TRIAL COURT BELOW GRIEVOUSLY FAILED TO

OBSERVE, AND THUS DENIED ACCUSED JAMES ANTHONY S. UY AND
JAMES ANDREW S. UY THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS
OF LAW, TO BE PRESUMED INNOCENT, TO HAVE COUNSEL OF THEIR
OWN CHOICE, TO HAVE AN IMPARTIAL JUDGE, TO MEET WITNESSES
FACE TO FACE, AND TO PRODUCE EVIDENCE ON THEIR BEHALF;

B)Â THE PROSECUTION EVIDENCE HAS ABSOLUTELY NOTHING TO

SUPPORT THE CONVICTION OF ACCUSED JAMES ANTHONY S. UY AND
JAMES ANDREW S. UY IN THESE CASES THUS THE TRIAL COURT BELOW
SERIOUSLY AND GRIEVOUSLY ERRED WHEN IT RENDERED THE 5 MAY
1999 JUDGMENT OF CONVICTION AGAINST THEM." 70

Appellants' assignments of error converge on four points, thus: (1)

violation of their right to due process; (2) the improper discharge of Rusia as
an accused to be a state witness; (3) the insufficiency of the evidence of the
prosecution; and (4) the trial court's disregard and rejection of the evidence
for the defense.
The appeal is bereft of merit.
I. Violation of Appellants' Right to Due Process
Due process of law is the primary and indispensable foundation of
individual freedoms; it is the basic and essential term in the social compact
which defines the rights of the individual and delimits the powers which the
State may exercise. 71 In evaluating a due process claim, the court must
determine whether life, liberty or property interest exists, and if so, what
procedures are constitutionally required to protect that right. 72 Otherwise
stated, the due process clause calls for two separate inquiries in evaluating
an alleged violation: did the plaintiff lose something that fits into one of the
three protected categories of life, liberty, or property?; and, if so, did the
plaintiff receive the minimum measure of procedural protection warranted
under the circumstances? 73
For our determination, therefore, is whether the minimum
requirements of due process were accorded to appellants during the trial of
these cases.
Section 14, Article III of our Constitution catalogues the essentials of
due process in a criminal prosecution, thus:

"SEC. 14. (1) No person shall be held to answer for a criminal

offense without due process of law.

(2)Â In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of
evidence in his behalf. However , after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been
notified and his failure to appear is unjustifiable."

Rule 115 of the Revised Rules of Criminal Procedure casts the

foregoing provision in a more detailed manner, thus:

"SECTION 1. Rights of accused at the trial. — In all criminal

prosecutions, the accused shall be entitled to the following rights:

(a)Â To be presumed innocent until the contrary is proved

beyond reasonable doubt.

(b)Â To be informed of the nature and cause of the accusation

against him.

(c)Â To be present and defend in person and by counsel at every

stage of the proceedings, from arraignment to promulgation of the
judgment. The accused may, however, waive his presence at the trial
pursuant to the stipulations set forth in his bail, unless his presence is
specifically ordered by the court for purposes of identification. The
absence of the accused without justifiable cause at the trial of which he
had notice shall be considered a waiver of his right to be present
thereat. When an accused under custody escapes, he shall be deemed
to have waived his right to be present on all subsequent trial dates
until custody over him is regained. Upon motion, the accused may be
allowed to defend himself in person when it sufficiently appears to the
court that he can properly protect his rights without the assistance of
counsel.
 (d)Â To testify as a witness in his own behalf but subject to cross-
examination on matters covered by direct examination. His silence
shall not in any manner prejudice him.

(e)Â To be exempt from being compelled to be a witness against

himself.

(f)Â To confront and cross-examine the witnesses against him at

the trial. Either party may utilize as part of its evidence the testimony
of a witness who is deceased, out of or cannot with due diligence be
found in the Philippines, unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party
having the opportunity to cross-examine him.

(g)Â To have compulsory process issued to secure the

attendance of witnesses and production of other evidence in his behalf.

(h)Â To have speedy, impartial and public trial .

(i)Â To appeal in all cases allowed and in the manner prescribed

by law."

Of the foregoing rights, what appellants obviously claim as having

been trampled upon by the trial court are their: (a) right to be assisted by
counsel at every stage of the proceedings; (b) right to confront and cross-
examine the prosecution witnesses; (c) right to produce evidence on their
behalf; and (d) right to an impartial trial.
A. Right to Counsel
Anent the right to counsel, appellants fault the trial court: first, for
appointing counsel de oficio despite their insistence to be assisted by
counsel of their own choice; and second, for refusing to suspend trial until
they shall have secured the services of new counsel.
Appellants cannot feign denial of their right to counsel. We have held
that there is no denial of the right to counsel where a counsel de oficio was
appointed during the absence of the accused's counsel de parte, pursuant to
the court's desire to finish the case as early as practicable under the
continuous trial system. 74
Indisputably, it was the strategic machinations of appellants and their
counsel de parte which prompted the trial court to appoint counsel de oficio.
The unceremonious withdrawal of appellants' counsel de parte during the
proceedings of August 24, 1998, as well as their stubborn refusal to return to
the court for trial undermines the continuity of the proceedings. Considering
that the case had already been dragging on a lethargic course, it behooved
the trial court to prevent any further dilatory maneuvers on the part of the
defense counsel. Accordingly, it was proper for the trial court to appoint
counsel de oficio to represent appellants during the remaining phases of the
proceedings.
At any rate, the appointment of counsel de oficio under such
circumstances is not proscribed by the Constitution. An examination of its
provisions concerning the right to counsel shows that the "preference in the
choice of counsel" pertains more aptly and specifically to a person under
investigation 75 rather than an accused in a criminal prosecution.76 And
even if we are to extend the application of the concept of "preference in the
choice of counsel" to an accused in a criminal prosecution, such preferential
discretion is not absolute as would enable him to choose a particular counsel
to the exclusion of others equally capable. We stated the reason for this
ruling in an earlier case:

"Withal, the word 'preferably' under Section 12 (1), Article 3 of

the 1987 Constitution does not convey the message that the choice of
a lawyer by a person under investigation is exclusive as to preclude
other equally competent and independent attorneys from handling his
defense. If the rule were otherwise, then, the tempo of a custodial
investigation, will be solely in the hands of the accused who can
impede, nay, obstruct the progress of the interrogation by simply
selecting a lawyer, who for one reason or another, is not available to
protect his interest. This absurd scenario could not have been
contemplated by the framers of the charter." 77

In the same breath, the choice of counsel by the accused in a criminal

prosecution is not a plenary one. If the chosen counsel deliberately makes
himself scarce, the court is not precluded from appointing a de oficio counsel
whom it considers competent and independent to enable the trial to proceed
until the counsel of choice enters his appearance. Otherwise, the pace of a
criminal prosecution will be entirely dictated by the accused to the detriment
of the eventual resolution of the case. 78
Neither is there a violation of appellants' right to counsel just because
the trial court did not grant their request for suspension of the hearing
pending their search for new counsel. An application for a continuance in
order to secure the services of counsel is ordinarily addressed to the
discretion of the court, and the denial thereof is not ordinarily an
infringement of the accused's right to counsel. 79 The right of the accused to
select his own counsel must be exercised in a reasonable time and in a
reasonable manner . 80
In the present case, appellants requested either one (1) month or three
(3) weeks to look for new counsel. Such periods are unreasonable.
Appellants could have hired new lawyers at a shorter time had they wanted
to. They should have been diligent in procuring new counsel. 81
Constitutional guaranty of right to representation by counsel does not mean
that accused may avoid trial by neglecting or refusing to secure assistance
of counsel and by refusing to participate in his trial. 82 It has been held that
where the accused declined the court's offer to appoint counsel and elected
to defend himself, the denial of his motion made toward the end of the trial
for a continuance so that he could obtain counsel of his own choice was not
an infringement of his constitutional rights. 83 While the accused has the
right to discharge or change his counsel at any time, this right is to some
extent subject to supervision by the trial court, particularly after the trial has
commenced. The court may deny accused's application to discharge his
counsel where it appears that such application is not made in good faith but
is made for purposes of delay. 84
Significantly, parallel to the hearing at the trial court were also
petitions and motions involving several incidents in these cases filed with the
Court of Appeals and this Court. The appellants, particularly Larrañaga, were
represented there by the same counsel de parte. 85 Certainly, it is wrong for
these lawyers to abandon appellants in the proceeding before the trial court
and unceasingly represent them in the appellate courts. Indeed, in doing so,
they made a mockery of judicial process and certainly delayed the hearing
before the court below. In Lacambra vs. Ramos, 86 we ruled:

"The Court cannot help but note the series of legal maneuvers
resorted to and repeated importunings of the accused or his counsel,
which resulted in the protracted trial of the case, thus making a
mockery of the judicial process, not to mention the injustice caused by
the delay to the victim's family."
aSADIC

Furthermore, appellants' counsel de parte ought to know that until

their withdrawal shall have been approved by the appellants, they still
remain the counsel of record and as such, they must do what is expected of
them, that is, to protect their interests. 87 They cannot walk out from a case
simply because they do not agree with the ruling of the judge. Being officers
of the court whose duty is to assist in administering justice, they may not
withdraw or be permitted to withdraw as counsel in a case if such withdrawal
will work injustice to a client or frustrate the ends of justice. 88
B. Right to Confront and Cross-Examine
the Prosecution Witnesses.
Appellants also fault the trial court for depriving them of the right to
cross-examine Rusia and the other prosecution witnesses. Appellants'
assertion has no factual and legal anchorage. For one, it is not true that they
were not given sufficient opportunity to cross-examine Rusia. All of
appellants' counsel de parte had a fair share of time in grilling Rusia
concerning his background to the kidnapping of Marijoy and Jacqueline. The
records reveal the following dates of his cross-examination:
Dates of Cross-
 Lawyers
examination
  Â
1. Armovit (for Larrañaga) August 13 and 17, 1998
2. Gonzales (for Larrañaga) August 20, 1998
3. Gica (for Josman) August 20, 1998
4. Paylado (for James Anthony August 20, 1998
 and James Andrew) Â
5. De la Cerna (for Rowen, Alberto August 20, 1998
 and Ariel) Â
6. Villarmia (for Larrañaga) October 1, 1998
7. Andales (for Josman) October 5 and 6, 1998
8. Carin (for James Andrew and October 5, 1998
 Â James Anthony) Â
9. Debalucos (for Rowen, Caño October 12, 1998
 and Balansag) Â
10. De Jesus (for Rowen, Alberto October 12, 1998
 and Ariel) Â
11. Ypil (for Rowen, Alberto and October 12, 1998 89Â
 Ariel) Â
That the trial court imposed limitation on the length of time counsel for
appellants may cross-examine Rusia cannot be labeled as a violation of the
latter's constitutional right. Considering that appellants had several lawyers,
it was just imperative for the trial court to impose a time limit on their cross-
examination so as not to waste its time on repetitive and prolix questioning.
Indeed, it is the right and duty of the trial court to control the cross-
examination of witnesses, both for the purpose of conserving its time and
protecting the witnesses from prolonged and needless examination. 90
Where several accused are being tried jointly for the same offense, the order
in which counsel for the several defendants shall cross-examine the state's
witnesses may be regulated by the court 91 and one of them may even be
denied the right to cross-examine separately where he had arranged with
the others that counsel of one of them should cross-examine for all. 92 In
People vs. Gorospe, 93 we ruled:

"While cross-examination is a right available to the adverse

party, it is not absolute in the sense that a cross-examiner could
determine for himself the length and scope of his cross-examination of
a witness. The court has always the discretion to limit the cross-
examination and to consider it terminated if it would serve the ends of
justice."

The transcript of stenographic notes covering Rusia's cross-

examination shows that appellants' counsel had ample chance to test his
credibility.
Records show that the failure of the PAO lawyers to cross-examine
some of the prosecution witnesses was due to appellants' obstinate refusal.
In its Order 94 dated September 8, 1998, the trial court deferred the cross-
examination in view of appellants' insistence that their new counsel de parte
will conduct the cross-examination. So as not to unduly delay the hearing,
the trial court warned the appellants that if by September 24, 1998, they are
not yet represented by their new counsel de parte, then it will order their
c o u n s e l de oficio to conduct the cross-examination. Lamentably, on
September 24, 1998, appellants' counsel de parte entered their appearances
merely to seek another postponement of the trial. Thus, in exasperation,
Judge Ocampo remarked:

"Every time a defense counsel decides to withdraw, must an

accused be granted one (1) month suspension of trial to look for such
new counsel to study the records and transcripts? Shall the pace of the
trial of these cases be thus left to the will or dictation of the accused —
whose defense counsels would just suddenly withdraw and cause such
 long suspensions of the trial while accused allegedly shop around for
new counsels and upon hiring new counsels ask for another one month
trial suspension for their new lawyers to study the records? While all
the time such defense counsels (who allegedly have already
withdrawn) openly continue to 'advise' their accused-clients and even
file 'Manifestations' before this Court and Petitions for Certiorari,
Injunction and Inhibition on behalf of accused before the Court of
Appeals and the Supreme Court?

"What inanity is this that the accused and their lawyers are
foisting upon this Court? In open defiance of the provisions of SC A.O.
No. 104-96 that these heinous crimes cases shall undergo 'mandatory
continuous trial and shall be terminated within sixty (60) days'?"

Still, in its Order dated October 8, 1998, the trial court gave appellants'
new counsel de parte a period until October 12, 1998 to manifest whether
they are refusing to cross-examine the prosecution witnesses concerned; if
so, then the court shall consider them to have waived their right to cross-
examine those witnesses. During the hearing on October 12, 1998,
Larrañaga's new counsel de parte, Atty. Villarmia, manifested that he would
not cross-examine the prosecution witnesses who testified on direct
examination when Larrañaga was assisted by counsel de oficio only. The
next day, the counsel de parte of Josman, and brothers James Anthony and
James Andrew adopted Atty. Villarmia's manifestation. Counsel for Rowen,
Alberto and Ariel likewise refused to cross-examine the same witnesses.
Thus, in its Order dated October 14, 1998, the trial court deemed appellants
to have waived their right to cross-examine the prosecution witnesses.
It appears, therefore, that if some of the prosecution witnesses were
not subjected to cross-examination, it was not because appellants were not
given the opportunity to do so. The fact remains that their new counsel de
parte refused to cross-examine them. Thus, appellants waived their right "to
confront and cross examine the witnesses" against them.
C. Right to Impartial Trial
Appellants imputes bias and partiality to Judge Ocampo when he asked
questions and made comments when the defense witnesses were testifying.
Canon 14 of the Canons of Judicial Ethics states that a judge may
properly intervene during trial to promote expeditious proceeding, prevent
unnecessary waste of time and dilly-dallying of counsel or clear up
obscurities. The test is whether the intervention of the judge tends to
prevent the proper presentation of a cause or the ascertainment of the truth
in the matter where he interposes his questions or comments.
Records show that the intervention by way of comment of Judge
Ocampo during the hearing was not only appropriate but was necessary.
One good illustration is his explanation on alibi. Seeing that the appellants'
counsel were about to present additional witnesses whose testimonies would
not establish the impossibility of appellants' presence in the scene of the
crime, Judge Ocampo intervened and reminded appellants' counsel of the
requisites of alibi, thus:
 "Well, I'm not saying that there is positive identification. I'm only
saying that in proving your alibi you must stick by what the Supreme
Court said that it was impossible if they are telling the truth, di ba?
Now with these other witnesses na hindi naman ganoon to that effect
it does not prove that it was impossible, e, what is the relevance on
that? What is the materiality? Iyon ang point ko. We are wasting our
time with that testimony. Ilang witnesses and epe-present to that
effect. Wala rin namang epekto. It will not prove that it was not
impossible for him to go to Cebu at 10:30 P.M., of July 16, e, papano
yan? We are being criticized by the public already for taking so long a
time of the trial of these cases which is supposed to be finished within
60 days. Now from August, September, October, November, December
and January, magse-six months na, wala pa and you want to present so
many immaterial witnesses."

Surely, we cannot fault Judge Ocampo for exhaustively reminding

appellants' counsel of the parameters of alibi to ensure that there will be an
orderly and expeditious presentation of defense witnesses and that there will
be no time wasted by dispensing with the testimonies of witnesses which are
not relevant. Remarks which merely manifest a desire to confine the
proceedings to the real point in issue and to expedite the trial do not
constitute a rebuke of counsel. 95
Appellants also decry the supposed harshness of Judge Ocampo
towards the witnesses for the defense, namely: Lourdes Montalvan, Michael
Dizon, Rebecca Seno, Clotilde Soterol, Salvador Boton, Catalina Paghinayan
and Paolo Celso.
With respect to Lourdes Montalvan, Judge Ocampo expressed surprise
on "how a 17-year-old girl could go to a man's apartment all alone." He said
that such conduct "does not seem to be a reasonable or a proper behavior
for a 17-year-old girl to do." These statements do not really indicate bias or
prejudice against the defense witnesses. The transcript of stenographic
notes reveals that Judge Ocampo uttered them, not to cast doubt on the
moral character of Lourdes Montalvan, but merely to determine the
credibility of her story, thus:

". . . But what I wanted to point out is the question of credibility.

That is what we are here for. We want to determine if it is credible for a
17-year-old college student of the Ateneo who belongs to a good
family, whose father is a lawyer and who could afford to live by herself
in a Condominium Unit in Quezon City and that she would go to the
Condominium Unit of a man whom he just met the previous month, all
alone by herself at night and specifically on the very night July 16,
1997 . . . That is the question that I would like you to consider . . . I
assure you I have no doubts at all about her moral character and I have
the highest respect for Miss Montalvan . . ."

Strong indication of Judge Ocampo's lack of predilection was his

acquiescence for Lourdes Montalvan to clarify during redirect examination
why she found nothing wrong with being alone at Larrañaga's unit. We quote
the proceedings of November 19, 1998, thus:
 ATTY. VILLARMIA:
QÂ When you went up you said you were alone. What was your feeling
of going up to that room alone or that unit alone?
PROS. GALANIDA
We object, not proper for re-direct. That was not touched during
the cross. That should have been asked during the direct-
examination of this witness, Your Honor.
ATTY. VILLARMIA:
We want to clarify why she went there alone.
COURT:
Precisely, I made that observation that does not affect or may
affect the credibility of witness the fact that she went there
alone. And so, it is proper to ask her, di ba?
xxx xxx xxx
COURT:
What was your purpose? Ask her now — what was your purpose?
/to the witness:
QÂ Will you answer the question of the Court/What was your purpose or
intention in going in Paco's room that night alone?
WITNESS:
AÂ My purpose for going there was to meet Richard, sir, and to follow-
up whether we will go out later that night or not. The purpose as
to going there alone, sir, I felt, I trusted Paco.
PROS. DUYONGCO:
May we ask the witness not to elaborate, Your Honor.
ATTY. VILLARMIA:
That is her feeling.
COURT:
That was her purpose. It is proper." 96
Appellants consider as violation of their right to due process Judge
Ocampo's remarks labeling Rebecca Seno's and Catalina Paghinayan's
testimony as "incredible; " 97 Clotilde Soterol as a "totally confused person
who appears to be mentally imbalanced;" 98 and Salvador Boton and Paulo
Celso as "liars." 99
Suffice it to state that after going over the pertinent transcript of
stenographic notes, we are convinced that Judge Ocampo's comments were
just honest observations intended to warn the witnesses to be candid to the
court. He made it clear that he merely wanted to ascertain the veracity of
their testimonies in order to determine the truth of the matter in
controversy. 100 That such was his purpose is evident from his probing
questions which gave them the chance to correct or clarify their
contradictory statements. Even appellants' counsel de parte acknowledged
that Judge Ocampo's statements were mere "honest observations. " 101 If
Judge Ocampo uttered harsh words against those defense witnesses, it was
because they made a mockery of the court's proceedings by their deliberate
lies. The frequency with which they changed their answers to Judge
Ocampo's clarificatory questions was indeed a challenge to his patience.
A trial judge is not a wallflower during trial. It is proper for him to
caution and admonish witnesses when necessary and he may rebuke a
witness for levity or for other improper conduct. 102 This is because he is
called upon to ascertain the truth of the controversy before him. 103
It bears stressing at this point that the perceived harshness and
impatience exhibited by Judge Ocampo did not at all prevent the defense
from presenting adequately its side of the cases. IcHAaS

D. Right to Produce Evidence

Appellants assail the trial court's exclusion of the testimonies of four
(4) airlines personnel 104 which were intended to prove that Larrañaga did
not travel to Cebu from Manila or from Cebu to Manila on July 16, 1997. The
trial court's exclusion of the testimonies is justified. By an alibi, Larrañaga
attempted to prove that he was at a place (Quezon City) so distant that his
participation in the crime was impossible. To prove that he was not in the
pre-flight and post-flight of the four (4) major airlines flying the route of Cebu
to Manila and Manila to Cebu on July 15 and 16, 1997 would not prove the
legal requirement of "physical impossibility" because he could have taken
the flight from Manila to Cebu prior to that date, such as July 14, 1997.
According to Judge Ocampo, it was imperative for appellants' counsel to
prove that Larrañaga did not take a flight to Cebu before July 16, 1997.
In the same way, we cannot fault the trial court for not allowing the
defense to continue with the tedious process of presenting additional
witnesses to prove Larrañaga's enrollment at the Center for Culinary Arts,
located at Quezon City, from June 18, 1997 to July 30, 1997 considering that
it would not also prove that he was not in Cebu on July 16 to 17, 1997. It is a
known practice of students who are temporarily residing in Metro Manila to
return to their provinces once in a while to spend time with their families. To
prove that Larrañaga was enrolled during a certain period of time does not
negate the possibility that he went home to Cebu City sometime in July 1997
and stayed there for a while.
Due process of law is not denied by the exclusion of irrelevant,
immaterial, or incompetent evidence, or testimony of an incompetent
witness. 105 It is not error to refuse evidence which although admissible for
certain purposes, is not admissible for the purpose which counsel states as
the ground for offering it. 106
To repeat, due process is satisfied when the parties are afforded a fair
and reasonable opportunity to explain their respective sides of the
controversy. 107 In the present case, there is no showing of violation of due
process which justifies the reversal or setting aside of the trial court's
findings.
II. The Improper Discharge of Rusia as an Accused
 to be a State Witness
Appellants argue that Rusia is not qualified to be a state witness under
paragraphs (d) and (e) of Section 9, Rule 119 of the 1985 Rules on Criminal
Procedure, which reads:

"Sec. 9. Discharge of the accused to be state witness. — When

two or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the
court may direct one or more of the accused to be discharged with
their consent so that they may be witness for the state when after
requiring the prosecution to present evidence and the sworn statement
of each proposed state witness at a hearing in support of the
discharge, the court is satisfied that:

xxx xxx xxx

(d)Â Said accused does not appear to be most guilty;

(e)Â Said accused has not at anytime been convicted of any

offense involving moral turpitude.

xxx xxx xxx"

Appellants claim that Rusia was the "most guilty of both the charges of
rape and kidnapping" having admitted in open court that he raped
Jacqueline. Furthermore, Rusia admitted having been previously convicted in
the United States of third degree burglary.
It bears stressing that appellants were charged with kidnapping and
illegal detention. Thus, Rusia's admission that he raped Jacqueline does not
make him the "most guilty" of the crimes charged. Moreover, far from being
the mastermind, his participation, as shown by the chronology of events,
was limited to that of an oblivious follower who simply "joined the ride" as
the commission of the crimes progressed. It may be recalled that he joined
the group upon Rowen's promise that there would be a "big happening" on
the night of July 16, 1997. All along, he thought the "big happening" was just
another "group partying or scrounging." In other words, he had no inkling
then of appellants' plan to kidnap and detain the Chiong sisters. Rusia
retained his passive stance as Rowen and Josman grabbed Marijoy and
Jacqueline at the waiting shed of Ayala Center. He just remained seated
beside the driver's seat, not aiding Rowen and Josman in abducting the
Chiong sisters. When Jacqueline attempted to escape 14 meters away from
the waiting shed, it was Josman who chased her and not Rusia. Inside the
car, it was Rowen who punched and handcuffed the Chiong sisters. At the
safehouse of the "Josman Aznar Group," Rusia stayed at the living room
while Larrañaga, James Anthony, Rowen, and Josman molested Marijoy and
Jacqueline on separate rooms. At Tan-awan, it was Josman who ordered
Rowen and Ariel to pushed Marijoy into the deep ravine. And Rusia did not
even know what ultimately happened to Jacqueline as he was the first to
leave the group. Clearly, the extent of Rusia's participation in the crimes
charged does not make him the "most guilty."
 The fact that Rusia was convicted of third degree burglary in Minnesota
does not render his testimony inadmissible. 108 In People vs. De Guzman, 109
we held that although the trial court may have erred in discharging the
accused, such error would not affect the competency and the quality of the
testimony of the defendant. In Mangubat vs. Sandiganbayan, 110 we ruled:

"Anent the contention that Delia Preagido should not have been
discharged as a state witness because of a 'previous final conviction' of
crimes involving moral turpitude, suffice it to say that 'this Court has
time and again declared that even if the discharged state 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. In the discharge of a co-defendant, the
court may reasonably be expected to err; but such error in discharging
an accused has been held not to be a reversible one. This is upon the
principle that such error of the court does not affect the competency
and the quality of the testimony of the discharged defendant ."

Furthermore, it may be recalled that Rusia was extremely bothered by

his conscience and was having nightmares about the Chiong sisters, hence,
he decided to come out in the open. 111 Such fact alone is a badge of truth of
his testimony.
But, more importantly, what makes Rusia's testimony worthy of belief
is the marked compatibility between such testimony and the physical
evidence. Physical evidence is an evidence of the highest order. It speaks
eloquently than a hundred witnesses. 112 The presence of Marijoy's ravished
body in a deep ravine at Tan-awan, Carcar with tape on her mouth and
handcuffs on her wrists certainly bolstered Rusia's testimony on what
actually took place from Ayala Center to Tan-awan. Indeed, the details he
supplied to the trial court were of such nature and quality that only a witness
who actually saw the commission of the crimes could furnish. What is more,
his testimony was corroborated by several other witnesses who saw
incidents of what he narrated, thus: (1) Rolando Dacillo and Mario Minoza
saw Jacqueline's two failed attempts to escape from appellants; (2) Alfredo
Duarte saw Rowen when he bought barbeque and Tanduay at Nene's Store
while the white van, driven by Alfredo Caño, was waiting on the side of the
road and he heard voices of "quarreling male and female" emanating from
the van; (3) Manuel Camingao testified on the presence of Larrañaga and
Josman at Tan-awan, Carcar at dawn of July 17, 1997; and lastly, (4)
Benjamin Molina and Miguel Vergara recognized Rowen as the person who
inquired from them where he could find a vehicle for hire, on the evening of
July 16, 1997. All these bits and pieces of story form part of Rusia's narration.
With such strong anchorage on the testimonies of disinterested witnesses,
how can we brush aside Rusia's testimony?
Rusia's discharge has the effect of an acquittal. 113 We are not inclined
to recall such discharge lest he will be placed in double jeopardy.
Parenthetically, the order for his discharge may only be recalled in one
instance, which is when he subsequently failed to testify against his co-
accused. The fact that not all the requisites for his discharge are present is
not a ground to recall the discharge order. Unless and until it is shown that
he failed or refused to testify against his co-accused, subsequent proof
showing that any or all of the conditions listed in Sec. 9 of Rule were not
fulfilled would not wipe away the resulting acquittal. 114
III. Appreciation of the Evidence for the
Prosecution and the Defense
Settled is the rule that the assessment of the credibility of witnesses is
left largely to the trial court because of its opportunity, not available to the
appellate court, to see the witnesses on the stand and determine by their
demeanor whether they are testifying truthfully or lying through their teeth.
Its evaluation of the credibility of witnesses is well-nigh conclusive on this
Court, barring arbitrariness in arriving at his conclusions. 115
We reviewed the records exhaustively and found no compelling reason
why we should deviate from the findings of fact and conclusion of law of the
trial court. Rusia's detailed narration of the circumstances leading to the
horrible death and disappearance of Jacqueline has all the earmarks of truth.
Despite the rigid cross-examination conducted by the defense counsel, Rusia
remained steadfast in his testimony. The other witnesses presented by the
prosecution corroborated his narration as to its material points which
reinforced its veracity.
Appellants proffered the defense of denial and alibi. As between their
mere denial and the positive identification and testimonies of the prosecution
witnesses, we are convinced that the trial court did not err in according
weight to the latter. For the defense of alibi to prosper, the accused must
show that he was in another place at such a period of time that it was
physically impossible for him to have been at the place where the crime was
committed at the time of its commission. 116 These requirements of time and
place must be strictly met. 117 A thorough examination of the evidence for
the defense shows that the appellants failed to meet these settled
requirements. They failed to establish by clear and convincing evidence that
it was physically impossible for them to be at the Ayala Center, Cebu City
when the Chiong sisters were abducted. What is clear from the evidence is
that Rowen, Josman, Ariel, Alberto. James Anthony and James Andrew were
all within the vicinity, of Cebu City on July 16, 1997.
Not even Larrañaga who claimed to be in Quezon City satisfied the
required proof of physical impossibility. During the hearing, it was
established that it takes only one (1) hour to travel by plane from Manila to
Cebu and that there are four (4) airline companies plying the route. One of
the defense witnesses admitted that there are several flights from Manila to
Cebu each morning, afternoon and evening. Taking into account the mode
and speed of transportation, it is therefore within the realm of possibility for
Larrañaga to be in Cebu City prior to or exactly on July 16, 1997. Larrañaga's
mother, Margarita Gonzales-Larrañaga, testified that his son was scheduled
to take a flight from Manila to Cebu on July 17, 1997 at 7:00 o'clock in the
evening, but he was able to take an earlier flight at 5:00 o'clock in the
afternoon. Margarita therefore claimed that his son was in Cebu City at
around 6:00 o'clock in the evening of July 17, 1997 or the day after the
commission of the crime. However, while Larrañaga endeavored to prove
that he went home to Cebu City from Manila only in the afternoon of July 17,
1997, he did not produce any evidence to show the last time he went to
Manila from Cebu prior to such crucial date. If he has a ticket of his flight to
Cebu City on July 17, 1997, certainly, he should also have a ticket of his last
flight to Manila prior thereto. If it was lost, evidence to that effect should
have been presented before the trial court.
Indeed, Larrañaga's presence in Cebu City on July 16, 1997 proved to
be not only a possibility but a reality. No less than four (4) witnesses for the
prosecution identified him as one of the two men talking to Marijoy and
Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July
16, 1997, at around 7:20 in the evening, she saw Larrañaga approach
Marijoy and Jacqueline at the West Entry of Ayala Center . The incident
reminded her of Jacqueline's prior story that he was Marijoy's admirer. She
(Shiela) confirmed that she knows Larrañaga since she had seen him on five
(5) occasions. Analie Konahap also testified that on the same evening of July
16, 1997, at about 8:00 o'clock, she saw Marijoy and Jacqueline talking to
two (2) men at the West Entry of Ayala Center . She recognized them as
Larrañaga and Josman, having seen them several times at Glicos, a game
zone, located across her office at the third level of Ayala Center. Williard
Redobles, the security guard then assigned at Ayala Center, corroborated
the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a
businessman from Cogon, Carcar, declared that he saw Larrañaga at Tan-
awan at about 3:30 in the morning of July 17, 1997. The latter was leaning
against the hood of a white van. 118
Taking the individual testimonies of the above witnesses and that of
Rusia, it is reasonable to conclude that Larrañaga was indeed in Cebu City at
the time of the commission of the crimes and was one of the principal
perpetrators.
Of course, we have also weighed the testimonial and documentary
evidence presented by appellants in support of their respective alibi.
However, they proved to be wanting and incredible.
Salvador Boton, the security guard assigned at the lobby of Loyola
Heights Condominium, testified on the entry of Larrañaga's name in the
Condominium's logbook to prove that he was in Quezon City on the night of
July 16, 1997. However, a cursory glance of the entry readily shows that it
was written at the uppermost portion of the logbook and was not following
the chronological order of the entries. Larrañaga's 10:15 entry was written
before the 10:05 entry which, in turn, was followed by a 10:25 entry. Not
only that, the last entry at the prior page was 10:05. This renders the
authenticity of the entries doubtful. It gives rise to the possibility that the
10:15 entry was written on a later date when all the spaces in the logbook
were already filled up and thus, the only remaining spot was the uppermost
portion. Surprisingly, the alleged arrival of Larrañaga and his friend Richard
Antonio at the Loyola Heights Condominium in the early evening of July 16,
1997 was not recorded in the logbook.
 Rowena Bautista , a teacher at the Center for Culinary Arts, Quezon
City, testified that Larrañaga attended her lecture on Applied Mathematics
on July 16, 1997 from 8:00 o'clock to 11:30 in the morning. 119 This runs
counter to Larrañaga's affidavit 120 stating that on the said date, he took his
mid-term examinations in the subject Fundamentals of Cookery from 8:00
o'clock in the morning to 3:30 o'clock in the afternoon.
With respect to Larrañaga's friends, the contradictions in their
testimonies, painstakingly outlined by the Solicitor General in the appellee's
brief, reveal their unreliability. To our mind, while it may be possible that
Larrañaga took the mid-term examinations in Fundamentals of Cookery and
that he and his friends attended a party at the R and R Bar and Restaurant,
also in Quezon City, however it could be that those events occurred on a
date other than July 16, 1997.
Clotilde Soterol, in defense of Ariel and Alberto (the driver and the
conductor of the van) attempted to discredit Rusia's testimony by testifying
that the white van with plate no. GGC-491 could not have been used in the
commission of the crimes on the night of July 16, 1997 because it was
parked in her shop from 7:00 o'clock in the evening of the same date until
11:00 o'clock in the morning of July 17, 1997. What makes Soterol's
testimony doubtful is her contradicting affidavits. In the first affidavit dated
July 28, 1997, or twelve (12) days from the occurrence of the crime, she
stated that Alberto took the van from her shop at 3:00 o'clock in the
afternoon of July 16, 1997 and returned it for repair only on July 22, 1997. 121
But in her second affidavit dated October 1, 1997, she declared that Alberto
left the van in her shop at 7:00 o'clock in the evening of July 16, 1997 until
11:00 o'clock in the morning of July 17, 1997. 122 Surely, we cannot simply
brush aside the discrepancy and accept the second affidavit as gospel truth.
Appellants attempted to establish their defense of alibi through the
testimonies of relatives and friends who obviously wanted them exculpated
of the crimes charged. Naturally, we cannot but cast an eye of suspicion on
their testimonies. In People vs. Ching, 123 we ruled that it is but natural,
although morally unfair, for a close relative to give weight to blood ties and
close relationship in times of dire needs especially when a criminal case is
involved.
Rusia positively identified the appellants. The settled rule is that
positive identification of an accused by credible witnesses as the perpetrator
of the crime demolishes alibi, the much abused sanctuary of felons. 124
Rusia's testimony was corroborated by several disinterested witnesses who
also identified the appellants. Most of them are neither friends, relatives nor
acquaintances of the victims' family. As we reviewed closely the transcript of
stenographic notes, we could not discern any motive on their part why they
should testify falsely against the appellants. In the same vein, it is
improbable that the prosecution would tirelessly go through the rigors of
litigation just to destroy innocent lives.
Meanwhile, appellants argue that the prosecution failed to prove that
the body found at the foot of a deep ravine in Tan-awan, Carcar was that of
Marijoy. We are not convinced. Rusia testified that Josman instructed Rowen
"to get rid" of Marijoy and that following such instruction, Rowen and Ariel
pushed her into the deep ravine. Furthermore, Inspector Edgardo Lenizo, 125
a fingerprint expert, testified that the fingerprints of the corpse matched
those of Marijoy. 126 The packaging tape and the handcuff found on the dead
body were the same items placed on Marijoy and Jacqueline while they were
being detained. 127 The body had the same clothes worn by Marijoy on the
day she was abducted. 128 The members of the Chiong family personally
identified the corpse to be that of Marijoy 129 which they eventually buried.
They erected commemorative markers at the ravine, cemetery and every
place which mattered to Marijoy. Indeed, there is overwhelming and
convincing evidence that it was the body of Marijoy that was found in the
ravine.
Appellants were charged with the crime of kidnapping and serious
illegal detention in two (2) Informations and were convicted thereof. Article
267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659,
reads:

"Art. 267. Kidnapping and serious illegal detention. — Any

private individual who shall kidnap or detain another, or in any other
manner deprive him of liberty, shall suffer the penalty of reclusion
perpetua to death;

1. If the kidnapping or detention shall have lasted more than

three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon
the person kidnapped or detained; or if threats to kill him shall have
been made.

4. If the person kidnapped or detained shall be a minor, except

when the accused is any of the parents, female or a public officer.

"The penalty shall be death where the kidnapping or detention

was committed for the purpose of extorting ransom from the victim or
any other person, even if none of the circumstances above mentioned
were present in the commission of the offense.

"When the victim is killed or dies as a consequence of the

detention or is raped, or is subjected to torture or dehumanizing acts,
the maximum penalty shall be imposed."

The elements of the crime defined in Art. 267 above are: (a) the
accused is a private individual; (b) he kidnaps or detains another, or in any
manner deprives the latter of his liberty; (c) the act of detention or
kidnapping must be illegal; and (d) in the commission of the offense, any of
the four (4) circumstances mentioned above is present. 130
There is clear and overwhelming evidence that appellants, who are
private individuals, forcibly dragged Marijoy and Jacqueline into the white
car, beat them so they would not be able to resist, and held them captive
against their will. In fact, Jacqueline attempted to free herself twice from the
clutches of appellants — the first was near the Ayala Center and the second
was in Tan-awan, Carcar — but both attempts failed. Marijoy was thrown to a
deep ravine, resulting to her death. Jacqueline, on the other hand, has
remained missing until now.
Article 267 states that if the victim is killed or died as a consequence of
the detention, or is raped or subjected to torture or dehumanizing acts, the
maximum penalty shall be imposed. In People vs. Ramos, 131 citing Parulan
vs. Rodas , 132 and People vs. Mercado, 133 we held that this provision given
rise to a special complex crime, thus:

"Prior to 31 December 1993, the date of effectivity of RA No.

7659, the rule was that where the kidnapped victim was subsequently
killed by his abductor, the crime committed would either be a complex
crime of kidnapping with murder under Art. 48 of the Revised Penal
Code, or two (2) separate crimes of kidnapping and murder. Thus,
where the accused kidnapped the victim for the purpose of killing him,
and he was in fact killed by his abductor, the crime committed was the
complex crime of kidnapping with murder under Art. 48 of the Revised
Penal Code, as the kidnapping of the victim was a necessary means of
committing the murder. On the other hand, where the victim was
kidnapped not for the purpose of killing him but was subsequently slain
as an afterthought, two (2) separate crimes of kidnapping and murder
were committed.

However, RA No. 7659 amended Art. 267 of The Revised Penal

Code by adding thereto a last paragraph which provides —

When the victim is killed or dies as a consequence of the

detention, or is raped or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed.

This amendment introduced in our criminal statutes the concept

of 'special complex crime' of kidnapping with murder or homicide. It
effectively eliminated the distinction drawn by the courts between
those cases where the killing of the kidnapped victim was purposely
sought by the accused, and those where the killing of the victim was
not deliberately resorted to but was merely an afterthought.
Consequently, the rule now is: Where the person kidnapped is killed in
the course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the kidnapping and
murder or homicide can no longer be complexed under Art. 48, nor be
treated as separate crimes, but shall be punished as a special complex
crime under the last paragraph of Art. 267, as amended by RA No.
7659."

The prosecution was able to prove that Marijoy was pushed to a ravine
and died. Both girls were raped by the gang. In committing the crimes,
appellants subjected them to dehumanizing acts. Dehumanization means
deprivation of human qualities, such as compassion. 134 From our review of
the evidence presented, we found the following dehumanizing acts
committed by appellants: (1) Marijoy and Jacqueline were handcuffed and
their mouths mercilessly taped; (2) they were beaten to severe weakness
during their detention; (3) Jacqueline was made to dance amidst the rough
manners and lewd suggestions of the appellants; (4) she was taunted to run
and forcibly dragged to the van; and (5) until now, Jacqueline remains
missing which aggravates the Chiong family's pain. All told, considering that
the victims were raped, that Marijoy was killed and that both victims were
subjected to dehumanizing acts, the imposition of the death penalty on the
appellants is in order.
Thus, we hold that all the appellants are guilty beyond reasonable
doubt of the special complex crime of kidnapping and serious illegal
detention with homicide and rape in Criminal Case No. CBU-45303 wherein
Marijoy is the victim; and simple kidnapping and serious illegal detention in
Criminal Case No. CBU-45304 wherein Jacqueline is the victim.
A discussion on the nature of special complex crime is imperative.
Where the law provides a single penalty for two or more component
offenses, the resulting crime is called a special complex crime. Some of the
special complex crimes under the Revised Penal Code are (1) robbery with
homicide, 135 (2) robbery with rape, 136 (3) kidnapping with serious physical
injuries, 137 (4) kidnapping with murder or homicide, 138 and (5) rape with
homicide. 139 In a special complex crime, the prosecution must necessarily
prove each of the component offenses with the same precision that would be
necessary if they were made the subject of separate complaints. As earlier
mentioned, R.A. No. 7659 amended Article 267 of the Revised Penal Code by
adding thereto this provision: "When the victim is killed or dies as a
consequence of the detention, or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed; and that this
provision gives rise to a special complex crime. In the cases at bar,
particularly Criminal Case No. CBU-45303, the Information specifically
alleges that the victim Marijoy was raped "on the occasion and in
connection" with her detention and was killed "subsequent thereto and on
the occasion thereof. " Considering that the prosecution was able to prove
each of the component offenses, appellants should be convicted of the
special complex crime of kidnapping and serious illegal detention with
homicide and rape. It appearing from the overwhelming evidence of the
prosecution that there is a "direct relation, and intimate connection" 140
between the kidnapping, killing and raping of Marijoy, rape cannot be
considered merely as an aggravating circumstance but as a component
offense forming part of the herein special complex crime. It bears reiterating
that in People vs. Ramos, 141 and People vs. Mercado, 142 interpreting Article
267, we ruled that "where the person killed in the course of the detention,
regardless of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no longer be
complexed under Article 48, nor be treated as separate crimes, but shall be
punished as a special complex crime under the last paragraph of Article
267." The same principle applies here. The kidnapping and serious illegal
detention can no longer be complexed under Article 48, nor be treated as
separate crime but shall be punished as a special complex crime. At any
rate, the technical designation of the crime is of no consequence in the
imposition of the penalty considering that kidnapping and serious illegal
detention if complexed with either homicide or rape, still, the maximum
penalty of death shall be imposed.
Anent Criminal Case No. CBU-45304 wherein Jacqueline is the victim,
the penalty of reclusion perpetua shall be imposed upon appellants
considering that the above-mentioned component offenses were not alleged
in the Information as required under Sections 8 and 9, 143 Rule 110 of the
Revised Rules of Criminal Procedure. Consistent with appellants' right to be
informed of the nature and cause of the accusation against him, these
attendant circumstances or component offenses must be specifically
pleaded or alleged with certainty in the information and proven during the
trial. Otherwise, they cannot give rise to a special complex crime, as in this
case. Hence, the crime committed is only simple kidnapping and serious
illegal detention.
From the evidence of the prosecution, there is no doubt that all the
appellants conspired in the commission of the crimes charged. Their
concerted actions point to their joint purpose and community of intent. Well
settled is the rule that in conspiracy, direct proof of a previous agreement to
commit a crime is not necessary. It may be deduced from the mode and
manner by which the offense was perpetrated, or inferred from the acts of
the accused themselves when such point to a joint design and community of
interest. 144 Otherwise stated, it may be shown by the conduct of the
accused before, during, and after the commission of the crime. 145
Appellants' actions showed that they have the same objective to kidnap and
detain the Chiong sisters. Rowen and Josman grabbed Marijoy and Jacqueline
from the vicinity of Ayala Center. Larrañaga, James Andrew and James
Anthony who were riding a red car served as back-up of Rowen and Josman.
Together in a convoy, they proceeded to Fuente Osmeña to hire a van, and
thereafter, to the safehouse of the "Jozman Aznar Group" in Guadalupe, Cebu
where they initially molested Marijoy and Jacqueline. They headed to the
South Bus Terminal where they hired the white van driven by Alberto, with
Ariel as the conductor. Except for James Andrew who drove the white car, all
appellants boarded the white van where they held Marijoy and Jacqueline
captive. In the van, James Anthony taped their mouths and Rowen
handcuffed them together. They drank and had a pot session at Tan-awan.
They encircled Jacqueline and ordered her to dance, pushing her and ripping
her clothes in the process. Meanwhile, Larrañaga raped Marijoy, followed by
Rowen, James Anthony, Alberto, and Ariel. On other hand, Josman and James
Andrew raped Jacqueline. Upon Josman's order, Rowen and Ariel led Marijoy
to the cliff and pushed her. After leaving Tan-awan, they taunted Jacqueline
to run for her life. And when Rusia got off from the van near Ayala Center,
the appellants jointly headed back to Cebu City.
Clearly, the argument of Rowen, Ariel and Alberto that they were not
part of the "conspiracy" as they were merely present during the perpetration
of the crimes charged but not participants therein, is bereft of merit. To hold
an accused guilty as co-principal by reason of conspiracy, he must be shown
to have performed an overt act in pursuance or furtherance of the
complicity. 146 There must be intentional participation in the transaction with
a view to the furtherance of the common design and purpose. 147
Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended. 148 As shown by the
evidence for the prosecution, Rowen, Ariel and Alberto were not merely
present at the scene of the crime.

Indeed, all appellants, except James Anthony who was 16 years old
when the crimes charged were committed, share the same degree of
responsibility for their criminal acts. Under Article 68 149 of the Revised Penal
Code, the imposable penalty on James Anthony, by reason of his minority, is
one degree lower than the statutory penalty. This means that he stands to
suffer the penalty of reclusion perpetua in Criminal Case No. CBU-45303 and
twelve (12) years of prision mayor in its maximum period, as minimum, to
seventeen (17) years of reclusion temporal in its medium period, as
maximum, in Criminal Case No. CBU-45304. The penalty for the special
complex crime of kidnapping and serious illegal detention with homicide and
rape, being death, one degree lower therefrom is reclusion perpetua. 150 On
the other hand, the penalty for simple kidnapping and serious illegal
detention is reclusion perpetua to death. One degree lower from the said
penalty is reclusion temporal. 151 There being no aggravating and mitigating
circumstance, the penalty to be imposed on James Anthony is reclusion
temporal in its medium period. Applying the Indeterminate Sentence Law, he
should be sentenced to suffer the penalty of twelve (12) years of prision
mayor in its maximum period, as minimum, to seventeen (17) years of
reclusion temporal in its medium period, as maximum. 152
As for the rest of the appellants, the foregoing established facts call for
the imposition on them of the death penalty in Criminal Case No. CBU-45303
and reclusion perpetua in Criminal Case No. CBU-45304. It is therefore clear
that the trial court erred in merely imposing "two (2) Reclusiones Perpetua ,"
rationalizing that justice must be tempered with mercy. We must be
reminded that justice is not ours to give according to our sentiments or
emotions. It is in the law which we must faithfully implement.
At times we may show compassion and mercy but not at the expense
of the broader interest of fair play and justice. While we also find it difficult to
mete out the penalty of death especially on young men who could have led
productive and promising lives if only they were given enough guidance,
however, we can never go against what is laid down in our statute books and
established jurisprudence.
In keeping with the current jurisprudence, the heirs of Marijoy and
Jacqueline are entitled to the amount of P100,000.00 in each case by way of
civil indemnity ex delicto. 153 As regards the actual damages, it appears that
the award of P200,000.00 is not supported by evidence. To be entitled to
actual damages, it is necessary to prove the actual amount of loss with a
reasonable degree of certainty, premised upon competent proof and on the
best evidence obtainable to the injured party. 154 Thus, in light of the recent
case of People vs. Abrazaldo, 155 we grant the award of P25,000.00 as
temperate damages in each case, in lieu of actual damages. There being
proofs that the victims' heirs suffered wounded feelings, mental anguish,
anxiety and similar injury, we award an equitable amount of P150,000.00 as
moral damages, also in each case. Exemplary damages is pegged at
P100,000.00 in each case 156 to serve as a deterrent to serious wrongdoings
and as a vindication of undue sufferings and wanton invasion of the rights of
the victims and as punishment for those guilty of outrageous conduct.
WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu
City in Criminal Cases Nos. CBU-45303 and 45304 is AFFIRMED with the
following MODIFICATIONS:
(1)Â In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN
LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY;" ALBERTO CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; and
JAMES ANDREW UY alias "MM," are found guilty beyond reasonable doubt of
the special complex crime of kidnapping and serious illegal detention with
homicide and rape and are sentenced to suffer the penalty of DEATH by
lethal injection;
(2)Â In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN
LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY;" ALBERTO CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; and
JAMES ANDREW UY alias "MM," are found guilty beyond reasonable doubt of
simple kidnapping and serious illegal detention and are sentenced to suffer
the penalty of RECLUSION PERPETUA;
(3)Â In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY,
who was a minor at the time the crime was committed, is likewise found
guilty beyond reasonable doubt of the special complex crime of kidnapping
and serious illegal detention with homicide and rape and is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case
No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal
detention and is sentenced to suffer the penalty of twelve (12) years of
prision mayor in its maximum period, as MINIMUM, to seventeen (17) years
of reclusion temporal in its medium period, as MAXIMUM.
(4)Â Appellants are ordered to pay jointly and severally the heirs of
Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil
indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral
damages, and (d) P100,000.00 as exemplary damages.
Three (3) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless,
they submit to the ruling of the majority that the law is constitutional and the
death penalty can be lawfully imposed in the case at bar.
In accordance with Article 83 of The Revised Penal Code, as amended
by Section 25 of RA No. 7659, upon the finality of this Decision let the
records of this case be forthwith forwarded to the Office of the President for
the possible exercise of Her Excellency's pardoning power. aCcHEI

SO ORDERED.
Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr. and
Tinga, JJ., concur.
Davide, Jr., C.J., took no part, related by affinity to the victim.
Azcuna, J., took no part, on official leave.
Â
Footnotes

1. Penned by Judge Martin A. Ocampo (now deceased).

2. It was on September 17, 1997 when the two original Informations for
kidnapping and serious illegal detention were filed against Davidson Rusia
and all the appellants. (Records, Vol. I at 1 and 1-A) docketed as CBU-45303
and CBU-45304, the two Informations were amended four times. Appellant
Francisco Juan Larrañaga, Jozman Aznar, Rowen Adlawan, Alberto Caño , and
Ariel Balansag were the first ones to be named in the two original
Informations. (Records, Vol. I at 1-4) Davidson Rusia was identified as Tisoy
Tagalog in both the original and the first two amended Informations,
(Records, Vol. I at 1-4, 87, 90-A, 187 and 191), as David Florido in the third
(Records, Vol. I at 462 and 478) and by his real name in the Fourth Amended
Information. (Records, Vol. I at 518 and 531) Brothers James Anthony and
James Andrew, both surnamed Uy, were impleaded as additional accused.
(Records, Vol. I at 518 and 531).

3. Records at 518.

4. Id. at 531.

5. Davidson Rusia and brothers James Andrew and James Anthony Uy were
arraigned on June 19, 1998 (Records, Vol. I at 562); Josman Aznar, Rowen
Adlawan, Alberto Caño, and Ariel Balansag were arraigned on October 14,
1997 (Records, Vol. I at 207).

6. Larrañaga was arraigned on July 16, 1998. (Records, Vol. I at 684)

7. Rusia testified on August 12, 13, 17 and 20, 1998 and on October 1, 5, 6 and
12, 1998.

8. They were Sheila Singson, Analie Konahap, Rolando Dacillo, Williard Redobles,
Benjamin Molina, Miguel Vergara, Mario Minoza, Manuel Camingao, Alfredo
Duarte, Rosendo Rio, Arturo Unabia, Manuel Rodriguez, Dionisio Enad, SPO1
Alexis Elpusan, P/Ins. Edgardo Lenizo, Dr. Nestor Sator, Jude Daniel Mendoza,
Thelma Chiong, SPO3 Ramon Ortiz Camilo Canoy, Neptali Cabanos, and P/Ins.
Leodegardo Acebedo.

9. TSN, August 18, 1998 at 57-62.

10. TSN, September 17, 1998 at 5.

11. Id. at 16.

12. Id. at 10.

13. TSN, August 18, 1998 at 62; August 19, 1998 at 57 and 60.

14. TSN, August 12, 1998 at 76.

15. Records at 759.

16. TSN, October 6, 1998 at 23.

17. TSN, August 12, 1998 at 30-35.

18. Id. at 34.

19. Id. at 35; TSN, August 13, 1999 at 39.

20. Id. at 36.

21. Id. at 38-39.

22. Id. at 40.

23. Id. at 53-54.

24. Id. at 69.

25. TSN, August 12, 1998 at 78.

26. Id. at 69-74.

27. Id. at 75-81.

28. TSN, September 17, 1998 at 7.

29. TSN, August 12, 1998 at 82-84.

30. TSN, September 3, 1998 at 13-33.

31. TSN, September 7, 1998 at 8-18.

32. TSN, September 10, 1998 at 8-31.

33. TSN, September 8, 1998 at 9-30.

34. TSN, September 15, 1998 at 16-48.

35. TSN, September 16, 1998 at 5-24.

36. Id. at 26-35.

37. TSN, September 16, 1998, at 26-35. Manuel Camingao was the Chief of the
Barangay Tanod of Poblacion I, Carcar, Cebu. He intended to report the
presence of the white van at the Tan-awan cliff thinking that if it threw
garbage again, it could easily be intercepted.

38. Rosendo Rio, Benjamin Molina and Miguel Vergara testified on September 14
 and 15, 1998.

39. TSN, November 19, 1998 at 9-127.

40. TSN, November 24, 1998 at 71-117.

41. TSN, November 25, 1998 at 53-128.

42. TSN, December 3, 1998 at 4-62.

43. TSN, December 2, 1998 at 2-88.

44. TSN, December 1, 1998 at 4-16.

45. TSN, December 7, 1998 at 4-24.

46. TSN, December 14, 1998 at 11-78.

47. TSN, December 8, 1998 at 4-19.

48. TSN, December 9, 1998 at 4-20.

49. TSN, January 5, 1999 at 17-26.

50. TSN, January 18, 1999 at 9-22.

51. TSN, January 6, 1999 at 4-25.

52. TSN, January 4, 1999 at 34-72.

53. TSN, January 27, 1999 at 21-22.

54. Id. at 23-26.

55. TSN, January 20, 1999 at 20-27.

56. TSN, January 12, 1999 at 28-35.

57. TSN, February 9, 1999 at 13-24.

58. TSN, January 26, 1999 at 8-20.

59. TSN, January 13, 1999 at 14-33.

60. TSN, January 21, 1999 at 5-31.

61. Id. at 753-755.

62. Id. at 765 and 771.

63. Id. at 781-783.

64. Id. at 790.

65. Id. at 792, 795 and 803-805.

66. Id. at 803-804.

67. Motion for Inhibition dated August 24, 1998. Id. at 807-816.

68. Records at 848, 909 and 925.

69. Id. at 918.

70. Rollo at 613. Prepared by Atty. Eric S. Carin.

71. 16B Am Jur 2d § 895.

72. Bzdzuich vs. U.S. Drug Enforcement Admin., 76 F 3d 738, 1996 FED App. 59P
(6th Cir. 1996).

73. 16B Am Jur § 902.

74. People vs. Macagaling, G.R. Nos. 109131-33, October 3, 1994, 237 SCRA 299.

75. The 1987 Constitution Art. III, Sec. 12(1) "Any person under investigation for
the commission of an offense shall have the right to be informed of his right
to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the service of counsel, he must
be provided with one. These rights cannot be waived except in writing and in
the presence of counsel." (Emphasis supplied)

76. Amion vs. Chiongson, A.M. No. RTJ-97-1371, January 22, 1999, 301 SCRA 614.

77. People vs. Barasina , G.R. No. 109993, January 21, 1994, 229 SCRA 450.

78. People vs. Mallari, G.R. No. 94299, August 21, 1992, 212 SCRA 777.

79. 23 C.J.S. §979[5], citing MacKenna vs. Ellis , C.A. Tex, 263 F. 2d 35; Ball vs.
State, 42 So. 2d 626, 252 Ala. 686, 70 S Ct. 625, 339 U.S. 929, 94 L. Ed 1350;
People vs. Chessman , 341 P. 2d 679, 52 C 2d 467, 80 S Ct. 296, 361 U.S.
925, 4 L. Ed 2d, 241; Neufield vs. U.S., 118 F 2d 375, 73 App. D.C. 174;
Ruben vs. U.S., 62 S Ct. 580, 315 U.S. 798, 86 L. Ed 1199; Stanfield vs. State,
212 S.W. 2d 516, 152 Tex. Cr. 324.

80. 23 C.J.S. §979 (5); People vs. Mullane , App., 6 Cal. Rptr. 341; Commonwealth
vs. Novak, 150 A. 2d 102, 395 Pa. 199; Commonwealth vs. De Marco, 163 A
2d. 700, 193 Pa. Super. 16.

81. 23 C.J.S. §979 (5), citing Zucker vs. People , 2 Cal. Rptr. 112 — People vs.
Adamson, 210 P. 2d 13, 34 C. 2d 320.

82. State vs. Longo, 41 A 2d 317, 132 N.J. law 515, affirmed 44 A 2d 349, 133 N.J.
Law 301.

83. People vs. Guber , 113 N.Y.S. 2d 192, 201 Misc. 852, affirmed 150 N.Y.S. 2d
543, 1 A.D. 2d 876.

84. 23 C.J.S. §979[7], citing Polito v. State , 282 p 2d 801, 71 Nev. 135;
Commonwealth vs. Novak, Quar. Sess., 45 Del Co. 45 — Commonwealth vs.
Helwig, Quar Sess., 39 Erie Co. 140.

85. (a) Petition for Issuance of the Writ of Habeas Corpus (C.A. G.R. SP. No.
48733) filed on August 25, 1998 by Attys. Rafael Armovit, Ramon Teleron,
 Edgar Gica, Lorenzo Paylado, and Fidel Gonzales. (Records at 878-892)

 (b) Petition-in-intervention to C.A. G.R. SP. No. 48733 dated August 26, 1998,
filed by Attys. Ramon Teleron and Lorenzo Paylado. (Records at 849-863)

 (c) Petitioner's Memorandum dated September 10, 1998 by Atty. Rafael

Armovit. (Records at 970-999)

 (d) Amended Petition dated September 3, 1998 by Atty. Miguel Armovit.

(Records at 1028-1044)

 (e) Motion for an Early Resolution and/or Writ of Preliminary Injunction or at

least a Restraining Order dated September 11, 1998, filed by Atty. Edgar
Gica. (Records at 1051-1056)

 (f) Motion for Prompt Resolution in C.A. G.R. SP. No. 48738 ( Certiorari,
Prohibition and Mandamus) dated September 9, 1998. Filed by the Law Firm
of Atty. Raymundo Armovit. (Records at 1072-1077)

 (g) Urgent Motion to Admit in C.A. G.R. SP. No. 48733 dated September 18,
1998 by Atty. Rafael Armovit. (Records at 1105-1106)

 (h) Motion to Strike Out (C.A. G.R. SP. No. 48733) dated September 18, 1998 by
Atty. Rafael Armovit. (Records at 1109-1112)

 (i) Complaint before the Office of the Court Administrator dated August 28,
1998, filed by Attys. Edgar Gica, Fidel Gonzales, Rafael Armovit, Ramon
Teleron and Lorenzo Paylado.

86. G.R. No. 100359, May 20, 1994, 232 SCRA 435.

87. See Orcino vs. Gaspar, Adm. Case No. 3773, September 24, 1997, 279 SCRA
379; see also Wack-Wack Golf and Country Club, Inc. vs. Court of Appeals ,
106 Phil. 501 (1959).

88. Ledesma vs. Climaco, G.R. No. L-23815, June 28, 1974, 57 SCRA 473.

89. Brief for the Appellee (Solicitor General). Rollo at 1149.

90. 98 C.J.S. § 404, citing State vs. Stone, 36 S.E. 2d 704, 226 N.C. 97.

91. 98 C.J.S. § 402, citing State vs. Howard, 14 S.E. 481, 35 S.C. 197.

92. Roberts vs. State, 14 Ga. 18, 21.

93. G.R. No. L-51513, May 15, 1984, 129 SCRA 233.

94. Records, Vol. II at 1062.

95. U.S. vs. Siden, D.C. Minn ., 293 F. 422; Doss vs. State, 139 So. 290, 224 Ala.
90; Ball vs. Commonwealth , 16 S.W. 2d 793, 229 Ky. 139; State vs. Brodt,
185 N.W. 645, 150 Minn. 431.

96. TSN, November 19, 1998 at 10-13.

97. TSN, January 11, 1999 at 54; TSN, January 13, 1999 at 59-62.
98. TSN, January 12, 1999 at 82-83.

99. TSN, January 14, 1999 at 77; TSN, January 5, 1999 at 43-44.

100. TSN, January 14, 1999 at 3-4; TSN, January 13, 1999 at 59.

101. TSN, January 13, 1999 at 59.

102. People vs. Knocke , 270 P 468, 94 C.A. 55; York vs. State , 156 S.E. 733, 42
Ga., App. 453; State vs. Barnes, 29 S.W. 2d 156, 325 Mo. 545; State vs. Boyd,
119 S.E. 839, 126 S.C. 300.

103. People vs. Malabago , G.R. No. 115686, December 2, 1996, 265 SCRA 198.

104. Titus Fabian of Philippine Air Lines; Jesus Trinidad of Grand Air; Ivy Ortega of
Cebu Pacific and Rommel Gonzales of Air Philippines.

105. 16A C.J.S. §589, citing Chaplinsky vs. State of New Hampshire, 62 S. Ct.
766, 315 U.S. 568, 86 L. Ed. 1031; U.S. vs. Butler, C.C.A. Okl., 156 F. 2d 897.

106. 23 C.J.S. § 1030, citing Cotney vs. State, 26 So. 2d 603, 248 Ala. 1; State vs.
Quinn, 69 A. 349, 80 Conn. 546; Fairbanks vs. U.S ., 226 F 2d 251, 96 U.S.
App. D.C. 345.

107. Factoran, Jr. vs. Court of Appeals , G.R. No. 93540, December 13, 1999, 320
SCRA 530; Navarro III vs. Damasco, G.R. No. 101875, July 14, 1995, 246
SCRA 260; Roces vs. Aportadera , Admin. Case No. 2936, March 31, 1995,
243 SCRA 108.

108. See Mangubat vs. Sandiganbayan, G.R. Nos. L-60613-20, August 29, 1986,
143 SCRA 681 and People vs. De Guzman , G.R. No. 118670, February 22,
2000, 326 SCRA 131, citing People vs. Jamero, 24 SCRA 206 (1968).

109. Supra.

110. Supra.

111. TSN, August 12, 1998 at 76.

112. People vs. Sacabin , G.R. No. L-36638, June 28, 1974, 57 SCRA 707; People
vs. Demeterio, G.R. No. L-48255, September 30, 1983, 124 SCRA 914.

113. Rules of Criminal Procedure, Rule 119, Sec. 10.

114. People vs. De los Reyes , G.R. No. 44112, October 22, 1992, 215 SCRA 63,
74-75; Bogo-Medellin Milling Co., Inc. vs. Son, G.R. No. 80268, May 27, 1992,
209 SCRA 329.

115. People vs. Belga, G.R. Nos. 94376-77, July 11, 1996, 258 SCRA 583.

116. People vs. Azugue , G.R. No. 110098, February 26, 1997, 268 SCRA 711.

117. People vs. Dela Cruz, G.R No. 108180, February 8, 1994, 229 SCRA 754.

118. TSN, September 15, 1998 at 26-47.

119. TSN, January 4, 1999 at 76.

120. Counter-Affidavit dated May 28, 1998, Evidence for the Prosecution, Exhibit
"BBBB" at 1821-1822.

121. TSN, January 12, 1999 at 55.

122. Id. at 56.

123. G.R. No. 103800, January 19, 1995, 240 SCRA 267.

124. People vs. Sugano , G.R. No. 127574, July 20, 1999, 310 SCRA 728; People
vs. Pelen , G.R. No. 131827, September 3, 1999, 313 SCRA 683; People vs.
Mosqueda, G.R. Nos. 131830-34, September 3, 1999, 313 SCRA 694; People
vs. Francisco , G.R. No. 110873, September 23, 1999, 315 SCRA 114; People
vs. Fajardo , G.R. Nos. 105954-55, September 28, 1999, 315 SCRA 283; and
People vs. Rabang, Jr., G.R. No. 105374, September 29, 1999, 315 SCRA 451.

125. Inspector Lenizo finished Law and Criminology. He worked for the crime
laboratory of the Philippine National Police where he was trained in
fingerprint examination and where he conducted around 500 fingerprint
examinations, 30 of which involved dead persons. At the time he testified,
Inspector Lenizo was head of the Fingerprint Identification Branch of the PNP
Crime Laboratory, Region 7.

126. TSN, September 22, 1998 at 31-40.

127. See also TSN, September 23, 1998 at 13, 20.

128. TSN, August 18, 1998 at 62; August 19, 1998 at 115; September 23, 1998 at
13, 20.

129. TSN, August 18, 1998 at 62; August 19, 1998 at 57, 60.

130. People vs. Salimbago, G.R. No. 121365, September 14, 1999, 314 SCRA 282.

131. G.R. No. 118570, October 12, 1998, 297 SCRA 618.

132. 78 Phil. 855 (1947).

133. G.R. No. 116239, November 29, 2000, 346 SCRA 256.

134. The American Heritage Dictionary (3rd Edition, 1993) at 366.

135. Article 294, par. 1.

136. Article 294, par. 2.

137. Article 267, par. 3.

138. Article 267, last paragraph.

139. Article 335.

140. People vs. Adriano , G.R. Nos. L-25975-77, January 22, 1980.

141. Supra.

142. Supra.
143. Sec. 8. Designation of the offense — The complaint or information shall state
the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.

  Sec. 9. Cause of the accusation. — The acts or omissions complained of as

constituting the offense and the qualifying and aggravating circumstances
must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its
qualifying and aggravating circumstances and for the court to pronounce
judgment.

144. People vs. Pulusan , G.R. No. 110037, May 21, 1998, 290 SCRA 353.

145. People vs. Gungon , 351 Phil. 116 (1998).

146. People vs. Elijorde , G.R. No. 135531, April 21, 1999, 306 SCRA 188.

147. People vs. Del Rosario , G.R. No. 127755, April 14, 1999, 305 SCRA 740.

148. People vs. Bisda , G.R. No. 140895, July 17, 2003.

149. ART. 68. — Penalty to be imposed upon a person under eighteen years of
age. — When the offender is a minor under eighteen years and his case is
one coming under the provisions of the paragraph next to the last of article
80 of this Code, the following rules shall be observed:

xxx xxx xxx

  2. Upon a person over fifteen and under eighteen years of age the penalty
next lower than that prescribed by law shall be imposed, but always in the
proper period.

150. Article 61, par. 1 in relation to Article 71, Scale No. 1 of the Revised Penal
Code.

  The Indeterminate Sentence Law does not apply to persons convicted of

offenses punished with death penalty or life imprisonment. (Section 2) While
the exception in Section 2 of the law speak of "life imprisonment," this term
has been considered to also mean reclusion perpetua. (Regalado, Criminal
Law Conspectus, First Edition, at 207).

151. Article 61, par. 2 in relation to Article 71, Scale No. 1 of the Revised Penal
Code.

152. Reyes, The Revised Penal Code, Book I, 2001 Ed. at 780.

153. People vs. Manguerra , G.R. No. 139906, March 5, 2003; People vs. Payot ,
G.R. No. 119352, June 8, 1999, 308 SCRA 43.

154. People vs. Acosta , G.R. No. 140386, November 29, 2001, 371 SCRA 181;
People vs. Suelto , 381 Phil. 351 (2000); People vs. Samolde , G.R. No.
 128551, July 31, 2000, 336 SCRA 632.

155. G.R. No. 124392, February 6, 2003.

156. People vs. Bisda, supra ; People vs. Hamton , G.R. Nos. 134823-25, January
14, 2003; People vs. Deang , G.R. No. 128045, August 24, 2000, 338 SCRA
657.

  In People vs. Catubig, G.R. No. 137842, August 23, 2001, 363 SCRA 621, it was
ruled that although the attendance of the "qualifying or aggravating
circumstance" was not alleged in the Information as required by Sections 8
and 9 of the Revised Rules on Criminal Procedure, "the retroactive
application of procedural rules, nevertheless, cannot adversely affect the
rights of the private offended party that have become vested prior to the
effectivity of said rules. Thus, in the case at bar, although relationship has
not been alleged in the information, the offense having been committed,
however, prior to the effectivity of the new rules, the civil liability already
incurred by appellant remains unaffected thereby."