1. CRIMINAL LAW; MURDER; CONSPIRACY TO KIDNAP; RESPONSIBILITY OF THE ACTORS. — The circumstances of the case, as proved by the evidence, lead us to the conclusion that each and everyone of appellants took part with T. V. R. in a conspiracy to kidnap as they did T. A. and they are all equally responsible for his killing, which was perpetrated in accordance with the plan of the kidnappers. Once the kidnapping has been decided, the authors necessarily had to entertain the killing as one of the means of accomplishing the purposes of kidnapping.

2. CRIMINAL PROCEDURE, RULES OF; DISCHARGE OF ONE OF DEFENDANTS; AT WHAT STAGE WILL IT BE EFFECTED; SECTION 9 OF RULE 115, CONSTRUED. — The discharge contemplated in the clear text of section 9 of Rule 115 is the one effected or which can be effected at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence. The clause "any time before they have entered upon their defense," used in the section, is so clear as not to give rise to any misunderstanding. The words "any time before" imply an indefinite period of time limited only by the time act by a court’s jurisdiction and the very nature of things, and that limit is set at the instant of the filing of the information.

3. ID.; ID.; REQUISITES; EFFECT. — Before the discharge is ordered, the prosecution must show and the trial court must ascertain that the five conditions fixed by section 9 of Rule 115 are complied with. But once the discharge is ordered, any future development showing that any or all of the five conditions have not actually been fulfilled, may not affect the legal consequences of the discharge, as provided by section 11 of Rule 115. Any witting or unwitting error of the prosecution in asking for the discharge and of the court in granting the petition, no question of jurisdiction being involved, cannot deprive the discharged accused of the acquittal provided by section 11 of Rule 115 and of the constitutional guarantee against double jeopardy.

4. ID.; ID.; ID.; ID. — The exception of the proviso of section 11 of Rule 115 against the defendant who "fails to testify against his co- defendant" refers exclusively to a failure attributable to defendant’s will or fault. It is unfair to deprive defendant of an acquittal for a failure attributable to the prosecution, and it would be an abhorrent legal policy to place defendant’s fate at the mercy of anyone who may handle the prosecution. The willingness or unwillingness of the discharged defendant is the only test that should be taken to determine whether or not he fails to testify against his co-defendant and, consequently, whether or not he should be excluded from the benefits of the acquittal provided by section 11 of Rule 115. In the present case, it is not disputed that A. M. had always been willing to testify for the prosecution and upon the same facts bared to the prosecution for which the latter, among other grounds, decided to move for his discharge from the information. As a matter of fact, although testifying for himself, he reiterated substantially in open court what he had testified before the officers for the prosecution. Under the circumstances and the law, he is protected by the constitutional guarantee against double jeopardy.

Justina Rizal and Teofilo Ampil, spouses, had been quarrelling because of the latter’s amorous relations with other women. During the Japanese occupation they were invited to live with her brother Dr. Sisenando Rizal in Calamba. There were times during which he did not sleep there. There were occasions on which husband and wife were not on speaking terms. Justina went to the extent of complaining to her brothers and sisters against her husband.

On March 31, 1946, her brother Taciano V. Rizal came from Calamba to Manila in a weapons carrier, accompanied by appellants Alejandro Mendiola, Florentino Zapanta and Gregorio Reyes, his townmates. In the evening of the same day, Taciano borrowed an ambulance car from Arturo Gomez. Later, Taciano alone went to the house of his sister Justina at 514 Aviles, Manila, and talked with her for a short time. On that same evening, appellants passed the night together in the same sala in a house in Paco.

Early in the morning of the next day, Taciano and the three appellants got the ambulance of Arturo Gomez and drove it to Teofilo’s house in Aviles. Upon seeing Teofilo they forced him to go with them in the ambulance. After sometime they were driving through Taft Avenue. At about 7 o’clock in the morning, upon reaching the intersection of Libertad, Teofilo jumped out of the car through the back door. Alejandro Mendiola shot him. After the shooting Taciano and appellants scampered away. Teofilo was helped by traffic policeman Leonardo Roxas, who took him to the Philippine General Hospital, where a few days later he died due to generalized peritonitis and hyphostatic pneumonia, secondary to gunshot wounds through the abdomen, lacerating the omentum and transversing the colon.

Sometime later appellant Alejandro Mendiola was arrested and some time after him the other two appellants. Taciano V. Rizal continues to be at large.

There cannot be any question as to the participation of the three appellants in the commission of the crime in question. The three of them have testified about their joining Taciano from Calamba until all of them boarded the ambulance car with Teofilo, up to the corner of Taft Avenue and Libertad, where Teofilo was shot. They disagree, however, as to who fired the fatal shot. Mendiola says it was Taciano who fired it, while the other two appellants say that it was Mendiola. We are convinced that the latter’s version is the correct one, although for the purposes of this case the effect would be the same whether the shot was fired by Taciano or by Mendiola.

The circumstances of the case, as proved by the evidence, lead us to the conclusion that each and everyone of appellants took part with Taciano V. Rizal in a conspiracy to kidnap as they did Teofilo Ampil and they are all equally responsible for his killing, which was perpetrated in accordance with the plan of the kidnapers. Once the kidnaping has been decided, the authors necessarily had to entertain the killing as one of the means of accomplishing the purposes of kidnaping.

The three appellants were correctly found by the trial court guilty as authors of the crime of murder. It sentenced them to death and to pay jointly and severally the heirs of Teofilo Ampil in the sum of P2,000 with subsidiary imprisonment in case of insolvency and to pay the costs.

With regard to appellants Gregorio Reyes and Florentino Zapanta, the principal penalty must be changed to reclusion perpetua, insufficient votes having been cast to affirm the appealed judgment, and there is even a minority opinion that they can be held only as accomplices.

The case with respect to Alejandro Mendiola calls for the application of sections 9 and 11 of Rule 115 which read as follows:jgc:chanrobles.com.ph

"SEC. 9. Discharge of one of several defendants to be witness for the prosecution. — When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct any of them to be discharged with the latter’s consent that he may be a witness for the government when in the judgment of the court:jgc:chanrobles.com.ph

"(a) There is absolute necessity for the testimony of the defendant whose discharge is requested;

"(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant;

"(c) The testimony of said defendant can be substantially corroborated in its material points;

"(d) Said defendant does not appear to be the most guilty;

"(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.

SEC. 11. Discharge of defendants operate as acquittal. — The order indicated in the two preceding sections shall amount to an acquittal of the defendant discharged and shall be a bar to future prosecution for the same offense, unless the defendant, in the case provided in section 9 fails or refuses to testify against his co- defendant.."

It appears that the original information for murder committed on the person of Teofilo Ampil was filed on April 27, 1946, against Taciano V. Rizal alone. On October 30, 1946, an amended information was filed including new defendants, among them Alejandro Mendiola. On November 6, 1946, assistant city fiscal Engracio Abasolo filed a motion to discharge defendant Alejandro Mendiola in order that he may be utilized as witness for the prosecution, which motion was granted.

On December 26, 1946, another independent information was filed for the same murder against Gregorio Reyes.

On January 31, 1947, a new information was filed for the same murder against Taciano V. Rizal, Vicente Llamas and the three appellants, including Alejandro Mendiola.

On February 7, 1947, counsel moved to quash the new information against Alejandro Mendiola on the ground that he has previously been acquitted of the offense charged. The motion was denied, and erroneously.

The prosecution contends that appellant Mendiola is not entitled to the benefits of section 11 of Rule 115 on the following grounds:chanrob1es virtual 1aw library

1. Because Mendiola, upon developments subsequent to his discharge on November 6, 1946, appears to be one of the most guilty, for having fired the fatal shot, his discharge having been based on the main proposition that by using him as a witness the prosecution would be enabled to prove its case against the most guilty accused, and the prosecution no longer wanted to avail, as it never availed, of his testimony to successfully prosecute the real and most guilty culprits.

2. That the failure to testify mentioned in the proviso of section 11 of Rule 115 comprehends the failure due to the prosecution’s omission or refusal to use the discharged accused as its witness.

3. That the discharge, to operate as an acquittal under section 11 of Rule 115, must have taken place after the discharged accused shall have been arraigned and shall have entered his plea and after the trial of the case shall have actually begun, and Mendiola had not even been arraigned when he was discharged on November 6, 1946.

The above three propositions announced by the prosecution are not supported either by law or by reason.

The discharge contemplated in the clear text of section 9 of Rule 115 is the one effected or which can be effected at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence. The clause "any time before they have entered upon their defense," used in the section, is so clear as not to give rise to any misunderstanding. The words "any time before" imply an indefinite period of time limited only by the time set by a court’s jurisdiction and the very nature of things, and that limit is set at the moment of the filing of the information.

Before the discharge is ordered, the prosecution must show and the trial court must ascertain that the five conditions fixed by section 9 of Rule 115 are complied with. But once the discharge is ordered, any future development showing that any or all of the five conditions have not actually been fulfilled, may not affect the legal consequences of the discharge, as provided by section 11 of Rule 115. Any witting or unwitting error of the prosecution in asking for the discharge and of the court in granting the petition, no question of jurisdiction being involved, cannot deprive the discharged accused of the acquittal provided by section 11 of Rule 115 and of the constitutional guarantee against double jeopardy.

The exception in the proviso of section 11 of Rule 115 against the defendant who "fails to testify against his co-defendant" refers exclusively to a failure attributable to defendant’s will or fault. It is unfair to deprive defendant of an acquittal for a failure attributable to the prosecution, and it would be an abhorrent legal policy to place defendant’s fate at the mercy of anyone who may handle the prosecution. The willingness or unwillingness of the discharged defendant is the only test that should be taken into account to determine whether or not he fails to testify against his co-defendant and, consequently, whether or not he should be excluded from the benefits of the acquittal provided by section 11 of Rule 115. In the present case, it is not disputed that Alejandro Mendiola had always been willing to testify for the prosecution and upon the same facts bared to the prosecution for which the latter, among other grounds, decided to move for his discharge from the information. As a matter of fact, although testifying for himself, he reiterated substantially in open court what he had testified before the officers for the prosecution. Under the circumstances and the law, he is protected by the constitutional guarantee against double jeopardy.

Accordingly, the appealed decision is modified and reversed in part, and appellant Gregorio Reyes and Florentino Zapanta are sentenced to reclusion perpetua and to jointly and severally indemnify the heirs of Teofilo Ampil in the sum of P2,000, and to pay the costs, and appellant Alejandro Mendiola is acquitted and shall immediately be released upon promulgation of this decision.

Moran C.J., Bengzon, Briones, Tuason and Montemayor, JJ., concur.



PARAS, J., concurring and dissenting:chanrob1es virtual 1aw library

I dissent from the decision of the majority in so far as it finds the appellants, Florentino Zapanta and Gregorio Reyes, guilty of murder as principals. There can be no doubt that Taciano Rizal, still at large, planned to kidnap his brother-in-law, Teofilo Ampil; but I am not convinced that appellants Zapanta and Reyes conspired with him. Indeed, it is admitted by the trial court and the Solicitor General that there is no direct evidence of conspiracy. In all probability, said appellants were, as testified to by them, invited by Taciano Rizal to leave Calamba, Laguna, for a sight-seeing trip to Manila. From the mere fact that Zapanta and Reyes had been with Taciano Rizal from the time they left Calamba to the moment Teofilo Ampil was shot by appellant Alejandro Mendiola while jumping out of the car in which he was asked to ride by Taciano on Aviles Street, we cannot safely deduce that Zapanta and Reyes had previous knowledge of Taciano’s murderous designs. The prosecution has not imputed to either Zapanta or Reyes any positive act that would tend to make them principals under article 17 of the Revised Penal Code. Neither may guilty knowledge on the part of Zapanta and Reyes be inferred from their failure to stop Alejandro Mendiola from shooting Teofilo Ampil or to report the crime to the authorities, because they could not foresee that Ampil would jump out of the car or that Mendiola would shoot Ampil, and because it is not unlikely that they might have been threatened, after the incident, not to make any revelation. In my opinion, appellants Zapanta and Reyes can at most be held guilty as accomplices.

PABLO, M., concurrente y disidente:chanrob1es virtual 1aw library

Concurro con la opinion de la mayoria que absuelve a Alejandro Mendiola.

Disiento en cuanto condena a los acusados Gregorio Reyes y Florentino Zapanta.

He revisado las pruebas obrantes en autos y en ellas no hay el mas ligero indicio de que dichos acusados hayan tenido participacion en el asesinato de Teofilo Ampil. Las conclusiones de hecho de la mayoria son del tenor siguiente:jgc:chanrobles.com.ph

"Early in the morning of the next day, Taciano and the three appellants got the ambulance of Arturo Gomez and drove it to Teofilo’s house in Aviles. Upon seeing Teofilo they forced him to go with them in the ambulance. After sometime they were driving through Taft Avenue. At about 7 o’clock in the morning, upon reaching the intersection of Libertad, Teofilo jumped out of the car through the back door. Alejandro Mendiola shot him. After the shooting, Taciano and appellants scampered away. Teofilo was helped by traffic policeman Leonardo Roxas, who took him to the Philippine General Hospital, where a few days later he died due to generalized peritonitis and hyphostatic pneumonia, secondary to gunshot wounds through the abdomen, lacerating the omentum and transversing the colon."cralaw virtua1aw library

En mi opinion, Taciano y Alejandro fueron los unicos autores del asesinato de Teofilo Ampil. En la mañana del dia primero de Abril, Taciano acompañado por Alejandro, Florentino y Gregorio, fue al lugar donde estaba la ambulancia de Arturo Gomez. Cuando Taciano vio a Teofilo, le invito a que subiera a la ambulancia, y Alejandro a punta de su revolver le obligo a Teofilo que se embarcara. Florentino y Gregorio no han hecho nada: solamente estaban sentados dentro del coche. Cuando en la encrucijada de la avenida Taft y calle Libertad, Teofilo se escapo, Alejandro le disparo dos tiros, uno de los cuales causo su muerte en el hospital. Florentino y Gregorio no han tenido ninguna participacion ni en el secuestro de Teofilo, ni en la parada del coche, ni en el disparo del revolver. Cuando oyeron el disparo, echaron a correr. No hay ninguna prueba si hubo un acuerdo entre los cinco acusados (uno de ellos es Vicente Llamas, que ya fue absuelto por el Juzgado a quo) de lo que habian de hacer en Manila. Por el contrario, segun la declaracion de los acusados Florentino y Gregorio, habian seguido a Taciano en jeep porque fueron invitados para hacer un paseo en Manila. No hay nada de extraño en que los dos acusados hayan aceptado la invitacion de Taciano: cualquiera, en aquellas circunstancias, hubiera obrado de la misma manera, para tener oportunidad de ver los efectos que habia dejado el bombardeo de Manila. El mismo ministerio fiscal admite en su alegato que no existe ninguna prueba sobre la conspiracion. El delito de que fueron acusados los cuatro es el de asesinato. Taciano y Alejandro son los verdaderos autores: el primero fue el que manejo la ambulancia en el secuestro, y el otro fue el que amenazo con su revolver a Teofilo a subir al coche y fue el que le disparo el tiro al echar a correr. Florentino y Gregorio no han hecho nada en el asesinato de Teofilo. Son autores, segun el articulo 17 del Codigo Penal Revisado: "1