EN BANC

[G.R. Nos. 148712-15. January 21, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. DOMINADOR

CACHOLA y SALAZAR, ERNESTO AMAY y PASCUA, NESTOR
MARQUEZ y MANUEL, BENJAMIN LAEGEN y CAMADO,
RODOLFO SAGUN y JIMENEZ, RODEMIR GUERZO y LATAOAN,
MELLKE IGNACIO y SALVADOR, and NELSON C. ECHABARIA,
appellants.

DECISION

PER CURIAM : p

In just an instant, 12-year-old Jessie E. Barnachea lost his mother, an

elder brother, an uncle, and a cousin as a result of the carnage that took place
at around 6:00 p.m. of 28 December 1999 right inside their house in Barangay
Calumbaya, Bauang, La Union. Their horrible death was attributed to herein
appellants, who, however, pleaded not guilty to the four separate informations
for murder.

At the trial before the Regional Trial Court of Bauang, La Union, Branch
67, the prosecution presented as witnesses Jessie and his brother and
neighbors, as well as several police officers. Their testimonies disclose as
follows:

Jessie was about to leave their house to watch cartoons in his uncle's
house next door when two armed men suddenly entered the front door of their
house. The two ordered Jessie to drop to the floor, and then hit him in the back
with the butt of a long gun. Without much ado, the intruders shot to death
Jessie's uncle, Victorino V. Lolarga, who was then in the living room. Jessie
forthwith crawled and hid under a bed, from where he saw the feet of a third
man who had also entered the house. The men entered the kitchen and
continued shooting. When the rampage was over and after the malefactors had
already departed, Jessie came out of his hiding place and proceeded to the
kitchen. There he saw his mother, Carmelita Barnachea; his brother Felix
Barnachea, Jr.; and his cousin Rubenson Abance — all slaughtered. 1
Meanwhile, Jessie's eldest brother, Robert E. Barnachea, was in his uncle's
house watching television with his aunt and young cousins when he sensed a
commotion outside. When Robert went out to see what was transpiring, he saw
armed men running towards their house. One of them turned and pointed a gun
at him, prompting him to scamper away and hide at the back of his uncle's
house. From where he was hiding, he noticed a stainless jeep, with blue rim
and marking "fruits and vegetables dealer," parked in front of the fence of their
house. Standing behind the jeep were three armed men wearing bonnets, with
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 only their nose and eyes exposed. In the next instant, he heard gunshots and
then saw men running from his house. The men hurriedly boarded the jeep and
left the place. 2
The jeep did not go unnoticed by the neighbors. Russel Tamba was with
some friends in front of Roda's Store, around 100 meters away from the
Barnachea residence, when the jeep passed by very slowly going towards the
Barnachea residence. According to him, the jeep had a marking "El Shaddai" in
front, aside from the marking "fruits and vegetables dealer" on the sides. 3
Francisco Andrada was also talking with some people in front of the Calumbaya
Barangay Hall, only five meters away from Roda's Store, when he noticed that
jeep, with the "El Shaddai" marking, pass by. 4 Not long after, both heard
gunshots and later saw the jeep pass by again, this time running very fast. 5

The incident was immediately reported to the police, and the description
of the "El Shaddai" jeep used by the malefactors was relayed through radio to
the police stations in the province of La Union. 6 At around 7:45 p.m., the jeep
was intercepted at a checkpoint set up in the highway by the police force in
Aringay, La Union. On board were the eight appellants. No firearms were found
in the vehicle. The jeep and the eight appellants were thereafter brought to the
Aringay police station and then turned over to the Bauang police. 7
When the Chief of Police of Bauang Benjamin M. Lusad was informed of
the apprehension of the eight appellants, he went to the Barnachea residence,
where he came to know that Jessie was an eyewitness. He invited Jessie to ride
with him to pick up the suspects. While Lusad was supervising the boarding of
the suspects into the vehicle, Jessie was in another police vehicle with PO3 Juan
Casem, Jr., to see whether he could recognize any one of the eight men. Jessie
pointed to Dominador Cachola and Ernesto Amay as the two armed men who
entered his house and killed his relatives. During the police line-up at the
Bauang Police Station, Jessie again identified Cachola and Amay as the
assailants. 8 The next day, when the police conducted the third confirmatory
investigation, which was to present Jessie with photographs of the suspects,
Jessie identified the two for the third time.
The eight appellants were thereafter subjected to paraffin test. But only
the right hands of Cachola and Amay yielded positive results for gunpowder
nitrates. 9
The Death Certificates attest to the gruesome and merciless killings.
Carmelita sustained one gunshot wound on her head and three on her body; 10
Felix, Jr., two gunshot wounds on his head and on his body, and stab wounds on
his chest and arms; 11 Victorino, two gunshot wounds on his head, three on his
body, and with his penis excised; 12 Rubenson, one gunshot wound on his head
and a stab wound that lacerated his liver. 13
The testimonies of the other prosecution witnesses were dispensed with
upon the stipulation by the public prosecutor and the counsels for the
appellants that the nature of their testimonies would be that (1) PO3 Juan
Casem, Jr., was inside the police car with Jessie when the latter recognized
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 appellants Cachola and Amay; (2) Mark Garcia would corroborate the testimony
of Felix Andrada regarding the description of the jeep; (3) Felix Barnachea, Sr.,
suffered actual damages amounting to P177,000 as a result of the death of his
wife Carmelita and son Felix, Jr.; (4) a police officer of Aringay, La Union,
flagged down the jeep at the checkpoint and saw the appellants on board; and
(5) a police officer of Bauang, La Union, would identify the pictures taken at the
crime scene.
After the prosecution had rested its case, the defense counsels orally
asked for leave of court to file a demurrer to evidence. The trial court denied
the motion outright and set the schedule for the presentation of the evidence
for the defense. 14 Instead of presenting their evidence, however, the
appellants, through their respective counsels, filed a Demurrer to Evidence 15
even without leave of court.
On 26 September 2000, the trial court rendered a decision 16 (1)
convicting (a) Cachola and Amay, as principals, of four counts of murder and
sentencing them to suffer four counts of the supreme penalty of death; and (b)
Marquez, Laegen, Sagun, Guerzo, Ignacio, and Echabaria, as accomplices, of
four counts of murder and sentencing them to suffer four counts of the
indeterminate penalty of eight years of prision mayor as minimum to twelve
years and one day of reclusion temporal as maximum; and (2) ordering all of
them to pay the heirs of the victims a total of P300,000 as death indemnity;
P200,000 as moral damages; and P177,000 as actual or compensatory
damages.
Before us on automatic review, appellants Cachola, Sagun, Ignacio, and
Marquez contend that the trial court erred (1) in finding conspiracy among
them and their co-appellants; (2) in finding proof beyond reasonable doubt; and
(3) in not dismissing the informations outright despite a motion before
arraignment, there having been a clear illegal arrest and denial of due process.
As for appellants Amay, Guerzo, Laegen, and Echabaria, they assert that
the trial court erred (1) in finding appellant Amay guilty beyond reasonable
doubt as principal in the crime of murder; and (2) in not acquitting appellants
Guerzo, Laegen, and Echabaria for insufficiency of evidence and on reasonable
doubt. DHIaTS

In its Consolidated Reply Brief, the Office of the Solicitor General (OSG)
recommends the affirmance of the conviction for murder of appellants Cachola
and Amay, and the acquittal of the other appellants for failure of the
prosecution to establish their identity and participation beyond reasonable
doubt.

We agree with the recommendation of the OSG to acquit appellants

Sagun, Ignacio, Marquez, Guerzo, Laegen, and Echabaria. Upon a thorough
review of the records of the case, we found nothing that would show their
participation in the commission of the crimes. Not one of the prosecution
witnesses identified them as among the malefactors who were at the
Barnachea residence on that fateful day. Surprisingly, even as the trial court
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 declared that the prosecution failed to establish the actual participation of the
other appellants in the commission of the crime, it found that "they cooperated
in the execution of the offense by previous or simultaneous acts." 17 It appears,
however, that the only reason why they were implicated was that they were
with Cachola and Amay on board the jeep that was intercepted in Aringay, La
Union, almost two hours after the killings. What constitute previous or
simultaneous acts that would make them liable as accomplices are not found in
the decision or in any evidence on record.

To hold a person liable as an accomplice, two elements must concur: (1)

community of design, which means that the accomplice knows of, and concurs
with, the criminal design of the principal by direct participation; and (2) the
performance by the accomplice of previous or simultaneous acts that are not
indispensable to the commission of the crime. 18 In the present case, neither
element was proved. The mere presence of the six appellants in the company
of appellants Cachola and Amay on board a jeep is not evidence of their
knowledge of, or assent to, the criminal design to perpetuate the massacre. 19
That they were found to be with appellants Cachola and Amay almost two hours
after the commission of the crime does not constitute previous or simultaneous
act. Absent a link between the crime and their presence in the jeep two hours
later, we cannot consider their participation even as accessories to the crime.

It is a basic evidentiary rule in criminal law that the prosecution has the
burden of proving the guilt of the accused beyond reasonable doubt. 20 If the
prosecution fails to discharge that burden, the accused need not present any
evidence. 21 Thus, for utter lack of evidence against the six appellants, their
acquittal is in order.
However, as regards appellants Cachola and Amay, we concur with the
trial court and the OSG that the prosecution had presented sufficient evidence
to prove their guilt beyond reasonable doubt. The credible testimony of, and
positive identification by Jessie Barnachea, which are corroborated by forensic
evidence, i.e., the positive results of the paraffin test on the right hands of
Cachola and Amay, constitute sufficient evidence to sustain their conviction.

As to the credibility of Jessie Barnachea, the trial court made the following
observations:
The Court observed the demeanor of Jessie Barnachea on the
witness stand and . . . did not observe any indication of falsehood in his
narration. He showed obvious readiness to answer questions
propounded to him. His reactions and answers to the questions
displayed evident respect for truth. He remained consistent on cross-
examination. He positively identified accused Amay and Cachola as the
one who shot and killed his family. The Court did not observe any
hesitancy or indication of uncertainty — and his recital of the events
appeared spontaneous. 22

There is nothing on record that gives this Court cause to interfere with the
trial court's determination of the credibility of Jessie. Indeed, his testimony was
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 unwavering despite attempts of the defense counsels to confuse or trap him.
The alleged inconsistency between Jessie's sworn statement and testimony on
the number of malefactors, if at all, does not detract from his credibility. That
Jessie saw two armed men enter his house is clear. While the defense claims
ambiguity as to the presence of a third man, Jessie's statement easily reveals
that the third man was not immediately mentioned because he (the third man)
only followed the two and Jessie did not see his face.

It is also pointed out that Jessie's identification of Cachola and Amay runs
counter to Robert's testimony that the armed men were wearing bonnets.
Again, from their testimonies, it is apparent that the brothers saw different
men. Besides, Robert also stated that one of the men did not have his head
covered. As to the alleged improbability of the lookouts wearing bonnets while
the principal shooters were unmasked, or of the malefactors sparing Jessie,
suffice it to say that such circumstances are not so incredible as to cast
reasonable doubt on the truth of the narrated events.
In sum, none of the alleged inconsistencies, minor as they are, could
leave us with doubt that Jessie was present in his house and saw armed men
shoot his relatives. Barely two hours had passed since he witnessed the
gruesome murders when Jessie identified appellants Cachola and Amay as the
malefactors. Reasonably, the memory of their faces was still fresh on his mind.
Moreover, Jessie identified the two appellants two times more at the police
station and once in open court, and he never faltered in his identification.

Significantly, the appellants have not imputed any ill motive to Jessie for
testifying against Cachola and Amay. Where there is no evidence to show a
doubtful reason or improper motive why a prosecution witness should testify
against the accused or falsely implicate him in a crime, the said testimony is
trustworthy and should be accorded full faith and credit. 23

In all, there does not appear on record to be "some fact or circumstance

of weight and influence which the trial court has overlooked or the significance
of which it has misapprehended or misinterpreted." 24 We rely, therefore, on the
competence of the trial court to decide the question of credibility of the
witnesses, having heard them and observed their deportment and manner of
testifying during the trial.” 25
The reliance by appellant Cachola on People v. Teehankee 26 is misplaced.
In that case the negative result of the paraffin test did not preclude a finding of
guilt by the trial court, the reason being that the accused was tested for the
presence of nitrates only after more than 72 hours had lapsed from the time of
the shooting. In the present case, the paraffin test was conducted on the same
night the shooting incident occurred; hence, the lapse of only a few hours
increases its reliability. While the presence of nitrates on accused's hand is not
conclusive of guilt, it bolsters the testimony of an eyewitness that the accused
fired a gun.
As to whether the trial court erred in not allowing the appellants to
present evidence after filing their demurrer to evidence without leave of court,
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 then Section 15, Rule 119 of the Rules of Court 27 is clear on the matter, thus:
SEC. 15. Demurrer to evidence. — After the prosecution has
rested its case, the court may dismiss the case on the ground of
insufficiency of evidence: (1) on its own initiative after giving the
prosecution an opportunity to be heard; or (2) on motion of the
accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may
adduce evidence in his defense. When the accused files such motion to
dismiss without express leave of court, he waives the right to present
evidence and submits the case for judgment on the basis of the
evidence for the prosecution. (Underscoring supplied).

The filing by the appellants of a demurrer to evidence in the absence of

prior leave of court was a clear waiver of their right to present their own
evidence. To sustain their claim that they had been denied due process
because the evidence they belatedly sought to offer would have exculpated
them would be to allow them to "wager on the outcome of judicial proceedings
by espousing inconsistent viewpoints whenever dictated by convenience." 28
Furthermore, it cannot be said that the waiver was not clear. The trial court
postponed the hearings on the motion for demurrer, even after leave of court
had been denied, and then granted extensions to Amay until he finally adopted
the position of his co-appellants. At no time other than in this automatic review
was there any attempt that is contrary to the waiver of the presentation of
evidence.
Neither can the question of the legality of the warrantless arrest of the
appellants be raised for the first time before this Court. As arrests fall into the
question of the exercise by the trial court of its jurisdiction over the person of
the accused, the question should have been raised prior to their arraignment.
That the appellants objected to the arrests prior to the arraignment 29 is
unsubstantiated. Their claim that they requested an extension of time to file a
motion to quash the information or to dismiss the case, 30 which the trial court
allegedly denied, cannot save the day for them. The fact remains that before
arraignment, no such motion was filed. Even assuming that their arrest was
illegal, their act of entering a plea during their arraignment constituted a
waiver of their right to question their arrest. 31
We now discuss the circumstances that attended the commission of the
crimes.

The information alleges the qualifying circumstances of treachery and

evident premeditation. There is no doubt that the killings were done with
treachery, considering that the assailants suddenly barged in and immediately
went on a shooting rampage. We have time and again ruled that when the
attack is sudden and unexpected, there is treachery. 32 The presence of even
this single qualifying circumstance is sufficient to qualify the killing to murder.
33

As to the qualifying circumstance of evident premeditation, we find the

same lacking, for there is no evidence of planning or preparation to kill, much
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 less of the time when the plot was conceived. 34

It may not be amiss to mention that the death certificate of Victorino

Lolarga reveals that his penis was excised. One may wonder whether such
circumstance amounted to ignominy that can aggravate the offense.

For ignominy to be appreciated, it is required that the offense be

committed in a manner that tends to make its effect more humiliating, thus
adding to the victim's moral suffering. Where the victim was already dead when
his body or a part thereof was dismembered, ignominy cannot be taken against
the accused. 35 In this case, the information states that Victorino's sexual organ
was severed after he was shot and there is no allegation that it was done to
add ignominy to the natural effects of the act. We cannot, therefore, consider
ignominy as an aggravating circumstance.
However, as regards Carmelita and Felix, Jr., we appreciate the
aggravating circumstance of dwelling, since it was alleged in the information
and proved during the trial that they were killed inside their house. Appellants
Cachola and Amay, therefore, violated the sanctity of the said victims' home.
Article 248 of the Revised Penal Code provides that the penalty for
murder is reclusion perpetua to death. In conjunction, Article 63 of the Revised
Penal Code provides that when the law prescribes two indivisible penalties, the
greater penalty shall be imposed when in the commission of the deed, there is
present one aggravating circumstance. In the cases of Carmelita and Felix Jr., in
Criminal Cases Nos. 2324 and 2325, there is one aggravating circumstance and
no mitigating circumstance to offset it; hence, the higher penalty of death
imposed by the trial court stands.
Three members of the Court maintain their adherence to the separate
opinions expressed in People vs. Echegaray 36 that Republic Act No. 7659,
insofar as it prescribes the penalty of death, is unconstitutional; nevertheless
they submit to the ruling of the majority that the law is constitutional and that
the death penalty should accordingly be imposed.

But in the cases of Victorino and Rubenson, in Criminal Cases Nos. 2323
and 2326, there being no aggravating or mitigating circumstance, the penalty
should be reclusion perpetua, which is the lower of the two indivisible penalties
prescribed by law.
As regards the civil liability of appellants Cachola and Amay, we hold
them jointly and severally liable to pay the heirs of each of the victims death
indemnity and moral damages each in the amount of P50,000, or a total of
P400,000. They are further ordered to pay the respective heirs of Carmelita and
Felix Jr. exemplary damages in the amount of P25,000, or a total of P50,000, in
view of the presence of one aggravating circumstance in the commission of the
crime against the said victims. As to the claim for damages by Felix Barnachea
Sr. in the amount of P177,000, we sustain the same even if only a list of
expenses, 37 not official receipts, was submitted because such amount was
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 admitted by the defense during the trial. 38 Moreover, although there is no
evidence as to the amount spent as a result of the death of Victorino and
Rubenson, their respective heirs shall be awarded temperate damages in the
amount of P25,000, since they clearly incurred funeral expenses. 39
WHEREFORE, the assailed decision dated 26 September 2000 of the
Regional Trial Court of Bauang, La Union, Branch 67, is hereby AFFIRMED
insofar as DOMINADOR CACHOLA y SALAZAR and ERNESTO AMAY y PASCUA are
found GUILTY of four counts of murder in Criminal Cases Nos. 2323-26 and
sentenced to suffer the supreme penalty of death in Criminal Cases Nos. 2324
and 2325. The said decision is, however, MODIFIED in that they are (1)
sentenced to suffer the penalty of reclusion perpetua, instead of death, in
Criminal Cases Nos. 2323 and 2326; and (2) ordered to pay, jointly and
severally, the following damages:

a. P50,000 as death indemnity in favor of the heirs of each

victim, or a total of P200,000;

b. P50,000 as moral damages in favor of the heirs of each

victim, or a total of P200,000;

c. P25,000 as exemplary damages in favor of the respective

heirs of Carmelita Barnachea and Felix Barnachea Jr., or a
total of P50,000;

d. P177,000 as actual damages in favor of the heirs of

Carmelita Barnachea and Felix Barnachea Jr.; and

e. P25,000 as temperate damages in favor of the respective

heirs of Rubenson Abance and Victorino Lolarga, or a total of
P50,000.

The assailed decision is REVERSED insofar as appellants NESTOR

MARQUEZ y MANUEL, BENJAMIN LAEGEN y CAMADO, RODOLFO SAGUN y
JIMENEZ, RODEMIR GUERZO y LATAOAN, MELLKE IGNACIO y SALVADOR, and
NELSON C. ECHABARIA are concerned, and another one is hereby rendered (1)
acquitting them of the crimes charged for insufficiency of evidence; (2)
ordering their immediate release from confinement unless their further
detention is warranted by virtue of any lawful cause; and (3) directing the
Director of the Bureau of Corrections to submit a report on their release within
five days from notice hereof.
Costs de oficio.

SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., Azcuna and Tinga, JJ., concur.

Footnotes
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 1. TSN, 7 March 2000, 4-8, 12, 16-17.
2. TSN, 15 March 2000, 3-4, 7, 16-17, 23.
3. TSN, 21 March 2000, 4, 13, 20.

4. TSN, 31 May 2000, 4-5, 18.

5. TSN, 21 March 2000, 14; TSN, 31 May 2000, 6.
6. TSN, 12 April 2000, 7, 10-11.
7. TSN, 17 May 2000, 19-20, 30, 34.
8. TSN, 10 May 2000, 29, 32.

9. Exhibit “N”, OR vol. 2, 43; TSN, 28 July 2000, 5.

10. Exhs. “G” and “G-1,” OR vol. 1, 13-15.
11. Exhs. “J” and “J-1,” OR vol. 1, 25-27.
12. Exhs. “I” and “I-1,” OR vol. 1, 21-23.

13. Exhs. “H” and “H-1,” OR vol. 1, 17-19.

14. OR, vol. 1, 185.
15. OR, vol. 1, 167-174, 203, 206-207.
16. Per Judge Jose G. Paneda. OR, vol. 1, 473-507; Rollo , 33-72.
17. OR, vol. 1, 505.

18. People v. De Vera, G.R. No. 128966, 18 August 1999, 312 SCRA 640.
19. See People v. Sayaboc , G.R. No. 147201, 15 January 2004.
20. People v. Batidor , G.R. No. 126027, 18 February 1999, 303 SCRA 335;
People v. Olivarez, Jr ., G.R. No. 77865, 4 December 1998, 299 SCRA 635.
21. People v. Tadepa , G.R. No. 100354, 26 May 1995, 244 SCRA 339.
22. OR, vol. 1, 503.
23. People v. Barnuevo , G.R. No. 134928, 28 September 2001, 366 SCRA 243;
People v. Fernandez , G. R. No. 137647, 1 February 2001, 351 SCRA 80;
24. People v. Julian-Fernandez, G.R. Nos. 143850-53, 18 December 2001, 372
SCRA 608.
25. Id.
26. G.R. Nos. 111206-08, 6 October 1995, 249 SCRA 54.

27. Now Section 23, Rule 119, Revised Rules of Criminal Procedure, as
amended (which became effective on 1 December 2000).

28. People v. Turingan , 347 Phil. 97 (1997).

29. Rollo , 110.

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 30. Id.
31. People v. Liwanag, G.R. No. 120468, 15 August 2001, 363 SCRA 62; People
v. Calimlim , G.R. No. 123980, 30 August 2001, 364 SCRA 45.
32. People v. Cachola , G.R. No. 135047, 16 March 2001, 354 SCRA 577; People
v. Bolivar, G.R. No. 130597, 21 February 2001, 352 SCRA 438.
33. People v. Dueño, G.R. No. L-31102, 5 May 1979, 90 SCRA 23.
34. People v. Nazareno, supra, note 32.
35. 1 LUIS B. REYES, THE REVISED PENAL CODE 451 (1993), citing People v.
Ferrera, No. L-66965, 18 June 1987, 151 SCRA 113, 140; and People v.
Carmina , G.R. No. 81404, 28 January 1991, 193 SCRA 429, 436.
36. 335 Phil. 343 (1997).
37. Exh. “L,” OR, 162.
38. TSN, 7 June 2000, 6; Section 4, Rule 129, Rules on Evidence.

39. People v. Baño , G.R. No. 148710, 15 January 2004.

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