SECOND DIVISION

[G.R. No. 118130. September 24, 1997.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JURY

MAGDAMIT, OSCAR HAZALDO alias "JOE BLACK," ROMY DE
VERA, YUL SUMALINOG, RICARDO GOJO, JR. alias "BEGET,"
NELSON GONA alias "AGAO," and WILFREDO GERERO alias
" B OY," accused, JURY MAGDAMIT and WILFREDO GERERO,
accused-appellants.

The Solicitor General for appellee.

Public Attorney's Office for J. Magdamit.

SYNOPSIS

Accused-appellant Magdamit and six other persons were charged with the special
complex crime of robbery with homicide. Of the seven accused, only Magdamit and
Gerero were arrested. It was established that on August 21, 1988, Jou Wen Shiong,
with Ariel Serrano and other hatchery workers, were inside the compound of the
Convote Aquatic Development Company. At around 9:00 o'clock in the evening,
Serrano, then inside the comfort room, saw several men, all armed, barge into the
compound of the Company. He saw five of them chasing Jou Wen Shiong while
their two companions posted themselves at the door as lookouts. Jou Wen Shiong
was cornered and one of them hit him with a handgun which went off on impact.
The bullet hit the latter on the left temple and pierced the brain area killing him
instantly. The armed men rounded up the people and tied the hands of the men
behind their backs. The group of armed men, which included Magdamit and Gerero,
proceeded to destroy the doors and windows of the rooms, then ransacked the same
and carted away some articles of value. Serrano positively identified herein
appellants Magdamit and Gerero whose names he only came to know latter. In his
defense, Magdamit testified that he was apprehended at his residence in connection
with another robbery case. He was later brought to the office of Capt. Ranara where
he was mauled and forced to admit his participation in the robbery that took place
at the Convote Aquatic Development Company and in the killing of Jou Wen Shiong.
A week later, he was forced to execute and sign a statement, prepared by the
policemen, without informing him of his constitutional rights. On his part, Gerero
raised the defense of alibi. The trial court rendered its decision convicting both
accused of the crime charged. Both accused appealed. However, Gerero died at the
New Bilibid Prison Hospital, hence his appeal was dismissed. dctai

The Supreme Court, after a careful review of the evidence and the records of this
case, found no reason to disturb the findings and conclusions of the trial court.
Appellant's disclaimers must fail. His identity as one of the perpetrators of the crime
has been positively established.
 SYLLABUS

1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; FINDINGS OF TRIAL COURT,

RESPECTED. — The trial court's evaluation of the testimony of a witness is accorded
the highest respect because it had the direct opportunity to observe the witnesses
on the stand and determine if they are telling the truth or not. The exceptions to
this rule are when such evaluation was reached arbitrarily or when the trial court
overlooked, misunderstood, or misapplied some facts or circumstances of weight
and substance which could have affected the result of the case. None of these
exceptions exists here. LLpr

2. ID.; ID.; IDENTIFICATION OF ACCUSED; POLICE LINE-UP, NOT A REQUISITE.

— The argument of appellant that he should have been identified at a police lineup
and not merely presented by the investigators to the prosecution witness is not
acceptable. There is no law requiring a police lineup as a condition sine qua non for a
proper identification of an accused. What is important is the positiveness of the
prosecution witness that the persons charged were the malefactors. Such
identification goes to the credibility of the witness which was tested at the trial.

3. ID.; ID.; ILL-MOTIVE; ABSENCE THEREOF PRESUMES NONE EXISTED. — The

defense has not shown any improper or ulterior motive on the part of Ariel Serrano
in testifying against herein appellant. It is settled that where there is no evidence
and nothing to indicate that the principal witness for the prosecution was actuated
by any improper motive, the presumption is that he was not so actuated and his
testimony is thus entitled to full faith and credit.

4. ID.; ID.; WITNESSES; NON-PRESENTATION OF OTHER WITNESSES CANNOT

BE TAKEN AGAINST THE PROSECUTION. — The non-presentation of the other
eyewitnesses cannot be taken against the prosecution. Firstly, there was a threat
against the lives of those witnesses. Secondly, the prosecution has the prerogative
to determine who should be presented as witnesses on the basis of its own
assessment of their necessity. That choice made by the prosecution cannot be
challenged here by appellant under the circumstances obtaining in this case.

5. ID.; ID.; EXTRAJUDICIAL CONFESSION; PRESUMPTION OF VOLUNTARINESS,

NOT OVERCOME IN CASE AT BAR. — A confession is presumed to be voluntary until
the contrary is proved and the burden of proof is upon the person making the
confession. In this case, the presumption has not been overcome. Appellant's
confession was executed in the presence and with the assistance of counsel and was
sworn to before Judge Tagum. It contained details which only appellant could have
supplied. Jurisprudence has it that details disclosed in the confession which could
have been known only by the declarant indicate the voluntariness in executing the
same. Voluntariness in the execution of and details narrated in the extrajudicial
confession render the claim by the appellant of duress in its execution incredible.
Furthermore, appellant's confession pointed to the other accused as the more guilty
party. This is an indication that the same was not just fabricated by the police. The
exculpatory tone of the confession is an indicium of its voluntary nature.
Nevertheless, even if we do not consider the extrajudicial confession in question, we
find no plausible reason to alter the trial court's judgment of conviction. The
culpability of herein appellant is borne out by evidence independent of the same. dctai

6. CRIMINAL LAW; ROBBERY WITH HOMICIDE; CONSPIRACY PRESENT;

LIABILITY THEREOF. — The conspiracy to commit the crime of robbery was
established by the concerted acts of appellant and his other co-accused. Homicide
having been committed on the occasion or as a consequence thereof, the trial court
is correct in holding appellant liable for the crime of robbery with homicide. The
issue of whether or not he actually participated in the killing of Jou Wen Shiong is
immaterial. The consistent doctrinal rule is that when a homicide takes place by
reason or on the occasion of the robbery, all those who took part in the robbery shall
be guilty of the special complex crime of robbery with homicide whether or not they
actually participated in the killing, unless there is proof that they had endeavored to
prevent the killing.

7. ID.; AGGRAVATING CIRCUMSTANCES; CRIME COMMITTED BY A BAND. — The

aggravating circumstance of band was properly appreciated by the trial court. An
offense is committed en cuadrilla when more than three armed malefactors shall
have acted together in the commission thereof. In the present case, there were
seven armed conspirators involved in the commission of the composite crime. cdphil

DECISION

REGALADO, J : p

Accused-appellant Jury Magdamit and six other persons, namely, Oscar Hazaldo,
alias "Joe Black;" Romy de Vera, Yul Sumalinog, Ricardo Gojo, Jr., alias "Beget;"
Nelson Gona, alias "Agao;" and Wilfredo Gerrero, alias "Boy," were charged with the
special complex crime of robbery with homicide punished in Article 294(1) of the
Revised Penal Code, in an information which alleges: cdasia

That on or about the 21st day of August, 1988, more or less 9:00 o'clock in
the evening, at barangay San Rafael, Municipality of Bulan, Province of
Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused armed with a hand gun and knives, conspiring,
confederating, and mutually helping one another, entered the premises of
the Convote Aquatic Development in San Rafael, Bulan, Sorsogon, and while
inside destroyed and operated the room of Jou Wen Shiong or Bon Shiong
Chiu, a (T)aiwanese national, and with intent to gain, with violence against or
intimidation of the occupants, did then and there, willfully, unlawfully and
feloniously, rob, take and carry away television sets, betamax, betamax
rewinder, electric fan, watches, rings and cash money belonging to Jou Wen
Shiong or Bon Shiong Chiu with the total value of SIXTY THOUSAND PESOS
(P60,000.00) Philippine Currency against the will and consent of the said
owner and by reason and on the occasion of the robbery the said accused
with intent to kill, did then and there, willfully, unlawfully and feloniously,
shoot said Jou Wen Shiong or Bon Shiong Chiu on his head, inflicting upon
 him gunshot wound which caused his instantaneous death, to the damage
and prejudice of his legal heirs. 1

Of the seven accused, only Jury Magdamit and Wilfredo Gerero were arrested while
the other accused remain at large. On August 17, 1989, both accused pleaded not
guilty to the offense charged, 2 and trial on the merits then proceeded.

As found by the trial court, the evidence for the prosecution established that on
August 21, 1988, Jou Wen Shiong, also known as Bon Shiong Chiu, a Taiwanese
national, together with Ariel Serrano and other hatchery workers, were inside the
compound of the Convote Aquatic Development Company located at Barangay San
Rafael, Bulan, Sorsogon. At around 9:00 o'clock in the evening of said day, Ariel
Serrano, who was then inside the comfort room washing his face, saw several men,
all armed, barge into the compound of Convote Aquatic Development Company.
Thereafter he saw five of them chasing Jou Wen Shiong at the basketball court
while their two companions posted themselves at the door as lookouts.

The men chasing Jou Wen Shiong cornered him before he could reach the hatchery.
One of them hit Jou Wen Shiong with a handgun which went off on impact. The
bullet hit the latter on the left temple and pierced the brain area killing him
instantly. Then the armed men rounded up the people who were in the compound
and tied the hands of the men behind their backs, but left the women free. The
group of armed men which included herein appellants Jury Magdamit and Wilfredo
Gerero, proceeded to destroy the doors and windows of the rooms of the victim and
one Manuel Chua, then ransacked said rooms and carted away some articles of
value.

Not long after the armed robbers left, Manuel Chua who earlier in the day left the
compound for Tabaco, Albay, arrived. Ariel Serrano immediately informed him that
several armed men entered the compound, shot Jou Wen Shiong and carted away
several items therefrom. Upon seeing that Jou Wen Shiong was already dead,
Manuel Chua proceeded to the building where he saw their rooms in total disarray.
He thereafter discovered that several valuable items and cash money, the total
value of which amounted to P60,000.00, more or less, were missing.

In the morning of August 22, 1988, Chua went to the Bulan Police Station to report
the incident. The police immediately went to the scene of the crime. During their
investigation, they found the dead body of Jou Wen Shiong lying flat on the
basketball court inside the Convote Aquatic Development compound. The doors and
windows of the room were destroyed, and the things inside were messed up.

Also on the same day, Pat. Rodrigo Rambacal, the police investigator, investigated
Ariel Serrano, Numeriano Noreña and Manuel Chua at the police station. On
February 24, 1989, by reason of the arrest of several persons, a follow-up
investigation was conducted. When asked to identify, from among those who were
arrested, the persons who entered and robbed the Convote Aquatic Development
Company, Ariel Serrano positively identified herein appellants Jury Magdamit and
Wilfredo Gerero whose names he only came to know later.

In his defense, Jury Magdamit testified that in February, 1989, he was apprehended
by the policemen at his residence in Tagbongan, Bulan, Sorsogon, in connection
with another robbery case involving one Tim Ling Tan. He was brought to the
Municipal Hall and placed in jail. At about 11:00 o clock in the evening, he was
brought to the office of Capt. Ranara where he was mauled and forced to admit his
participation in the robbery that took place at the Convote Aquatic Development
Company and in the killing of Jou Wen Shiong. A week; later, he was brought back
to the Office of Capt. Ranara, where he was forced to execute and sign a statement,
prepared by the policemen, without informing him of his constitutional rights.

On his part, accused Wilfredo Gerero raised the defense of alibi. He testified that on
August 21, 1988, from 9:00 o'clock up to 11:00 o'clock in the evening, he was out
fishing with his brother. The boat which they used was powered by paddle and
motor. After fishing, they brought their catch to a certain Tio Torong, at Iraya,
Bulan, Sorsogon, who bought their entire catch for P680.00. Then they went home.
After almost seven (7) months from August 21, 1988, he was arrested by the
policemen at his residence in Ilawod, Bulan, Sorsogon. He denied knowing his co-
accused. He also claimed that the policemen subjected him to torture.

On December 27, 1992, the trial court rendered its decision convicting both accused
of the crime charged, with the following disposition.

WHEREFORE, the Court finds the accused Jury Magdamit and Wilfredo
Gerero guilty beyond reasonable doubt of the crime of Robbery with
homicide with the aggravating circumstance of band.

The penalty provided for the crime is RECLUSION PERPETUA to DEATH, and
taking into consideration the aggravating circumstance of band, the
maximum penalty of death should be applied, but in view of the mandate of
the 1987 Constitution (Article III, Section 19(1), the accused JURY
MAGDAMIT and WILFREDO GERERO are sentenced to suffer the penalty of
RECLUSION PERPETUA and to jointly and severally indemnify the heirs of
JO(U) WEN SHIONG, a.k.a. BO(N) SHIONG CHIU, the amount of FIFTY
THOUSAND (P50,000.00) PESOS; to pay the amount of SIXTY THOUSAND
(P60,000.00) PESOS as actual damages; and to pay the costs. 3

Contesting the verdict, both accused appealed to this Court. However, on October
27, 1995, accused Wilfredo Gerero died at the New Bilibid Prison Hospital, 4 hence
in our resolution dated January 22, 1996, his appeal was dismissed. 5 The remaining
appellant, Jury Magdamit, filed his brief wherein he faulted the court below for
having found him guilty, especially by considering his extrajudicial confession which
was allegedly obtained without observing his constitutional rights. 6

After a careful review of the evidence and the records of this case, we find no reason
to disturb the findings and conclusions of the trial court. Appellant's disclaimers
must fail. His identity as one of the perpetrators of the crime has been positively
established by prosecution witness Ariel Serrano, who testified as follows:
 q Where you able to recognize those persons chasing Jou Wen Shiong
or Bon Shiong Chiu?

a Yes, I recognized them.

q Did you recognize those 7 persons by name?

a I can recogniz(e) them by the face only but I do not know their names
except the two whom I know now.

q Who were those persons whom you know also by name?

a Jury Magdamit and Wilfredo Gerero.

q If you are given the chance to identify them would you be able to
identify them.

a Yes.

q Will you please point (to) the accused Jury Magdamit?

a (Witness pointed (at) a person in court and when asked of his name
answered by the name of Jury Magdamit).

q What about the accused Wilfredo Gerero were you able to identify
him?

a Yes. 7

The trial court gave full faith and credit to the abovequoted testimony and
identification of herein appellant. It is axiomatic that the trial court's evaluation of
the testimony of a witness is accorded the highest respect because it had the direct
opportunity to observe the witnesses on the stand and determine if they are telling
the truth or not. The exceptions to this rule are when such evaluation was reached
arbitrarily or when the trial court overlooked, misunderstood, or misapplied some
facts or circumstances of weight and substance which could have affected the result
of the case. 8 None of these exceptions exists here.

The argument of appellant that he should have been identified at a police lineup
and not merely presented by the investigators to the prosecution witness is not
acceptable. There is no law requiring a police lineup as a condition sine qua non for a
proper identification of an accused. What is important is the positiveness of the
prosecution witness that the persons charged were the malefactors. Such
identification goes to the credibility of the witness which was tested at the trial. 9

Moreover, the defense has not shown any improper or ulterior motive on the part of
Ariel Serrano in testifying against herein appellant. It is settled that where there is
no evidence and nothing to indicate that the principal witness for the prosecution
was actuated by any improper motive, the presumption is that he was not so
actuated and his testimony is thus entitled to full faith and credit. 10
Even the non-presentation of the other eyewitnesses cannot be taken against the
prosecution. Firstly, there was a threat against the lives of those witnesses. It was
only Ariel Serrano who, not being a native or a resident of Bulan, Sorsogon, was
understandably courageous enough to testify. In fact, during the trial of this case,
the counsel for the prosecution made the following manifestation:

Atty. Lladoc:

I object to the postponement of the cross- examination your honor,

precisely we took advantage of his presence because this witness will be
moving out from that place (Bulan) because according to the manager there
were threats on this witness. In fact the other witness is missing your
honor. 11

Secondly, the prosecution has the prerogative to determine who should be

presented as witnesses on the basis of its own assessment of their necessity. 12 That
choice made by the prosecution cannot be challenged here by appellant under the
circumstances obtaining in this case.

The contention of appellant that his extrajudicial confession is inadmissible is

untenable. Well settled is the rule that a confession is presumed to be voluntary
until the contrary is proved and the burden of proof is upon the person making the
confession. In this case, the presumption has not been overcome. 13

Appellant's confession was executed in the presence and with the assistance of
counsel, Atty. Romeo Fortes, who was then the IBP Chapter President, and was
sworn to before Judge Jacinto Tagum. It also contained details which only he could
have supplied. Jurisprudence has it that details disclosed in the confession which
could have been known only by the declarant indicate the voluntariness in
executing the same. 14 Voluntariness in the execution of and details narrated in the
extrajudicial confession render the claim by the appellant of duress in its execution
incredible. 15

It is also interesting to note that appellant's confession pointed to the other accused
as the more guilty party. This is an indication that the same was not just fabricated
by the police. The exculpatory tone of the confession is an indicium of its voluntary
nature. 16

Nevertheless, even if we do not consider the extrajudicial confession in question, we

find no plausible reason to alter the trial court's judgment of conviction. The
culpability of herein appellant is borne out by evidence independent of the same, 17
as shown in our earlier discussion.

In the instant case, the conspiracy to commit the crime of robbery was established
by the concerted acts of appellant and his other co-accused. Homicide having been
committed on the occasion or as a consequence thereof, the trial court is correct in
holding appellant liable for the crime of robbery with homicide. The issue of
whether or not he actually participated in the killing of Jou Wen Shiong is
immaterial. The consistent doctrinal rule is that when a homicide takes place by
reason or on the occasion of the robbery, all those who took part in the robbery shall
be guilty of the special complex crime of robbery with homicide whether or not they
actually participated in the killing, unless there is proof that they had endeavored to
prevent the killing. 18

The aggravating circumstance of band was also properly appreciated by the trial
court. An offense is committed en cuadrilla when more than three armed
malefactors shall have acted together in the commission thereof. 19 In the present
case, there were seven armed conspirators involved in the commission of the
composite crime. However, as already explained, the death penalty could not then
be imposed. LLjur

WHEREFORE, the judgment appealed from is hereby AFFIRMED in toto, with costs
against accused-appellant Jury Magdamit.

SO ORDERED.

Puno, Mendoza and Torres, Jr., JJ ., concur.

Footnotes

1. Original Record, 22-23.

2. Ibid., 48.

3. Rollo, 27-28.

4. Ibid., 22

5. Ibid., 64

6. Appellant's Brief, 1; Rollo, 70.

7. TSN, February 15, 1990, 13.

8. People vs. Galendez, et al. , G.R. Nos. 56465-66, June 26, 1992, 210 SCRA 360;
People vs. Lug-aw, et al. , G.R. No 85735, January 18, 1994, 229 SCRA 308; People
vs. Corpuz, et al., G.R. No. 99865, March 28, 1994, 231 SCRA 480.

9. People vs. Espiritu, et al. , G.R. No. 80406, November 20, 1990, 191 SCRA 503;
People vs. Villagracia, et al., G.R. No. 94311, September 14, 1993, 226 SCRA 374.

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

11. TSN, February 15, 1990, 21

12. People vs. Fernandez, et al. , G.R. No. 80481, June 27, 1990 186 SCRA 830;
People vs. Dela Cruz , supra, Fn. 10.

13. People vs. Luvendino , G.R. No. 69971, July 3, 1992, 211 SCRA 36; People vs.
 Nimo, et al., G.R. No. 92533, October 5, 1993, 227 SCRA 69; People vs. Ruelan ,
G.R. No. 106152, April 19, 1994, 231 SCRA 650.

14. People vs. Bautista, et al. , L-31900, August 6, 1979, 92 SCRA 465; People vs.
Tintero, L-30435, February 15, 1982, 111 SCRA 714; Estacio vs. Sandiganbayan,
G.R. No. 75362, March 6, 1990, 183 SCRA 12.

15. People vs. Llamoso, et al. , L-24866, July 13, 1979, 91 SCRA 364; People vs.
Tintero, ante.

16. People vs. Santalani, et al. , L-29979, September 28, 1979, 93 SCRA 315; People
vs. Balane, et al., L-48319-20, July 25, 1983, 123 SCRA 614; People vs. Oracoy, et
al., G.R. No. 106537, July 27, 1993, 224 SCRA 759.

17. People vs. Dela Cruz , supra, Fn. 10.

18. People vs. Degoma, et al. , G.R. Nos. 89404-05, May 22, 1992, 209 SCRA 266;
People vs. Escosio, et al., G.R. No. 101742, March 25, 1993, 220 SCRA 475;
People vs. Yabut, G.R. No. 85472, September 27, 1993, 226 SCRA 715.

19. People vs. Dela Cruz , G.R. No. 102063, January 20, 1993, 217 SCRA 283; Article
14(6), Revised Penal Code.