1. CRIMINAL LAW; CONSPIRACY; NOT ESTABLISHED BY MERE COMPANIONSHIP AND SHARING A COMMON TONGUE WITH ACCUSED.— As a prelude to the major conclusion that accused-appellant and Paguntalan acted in concert to liquidate the victim, the magistrate below expressed the idea that since Paguntalan worked as janitor for two years for accused-appellant using the latter’s bodega as living quarters, that because both of them hail from the province of Negros, coupled with the fact that they speak the same dialect, ergo, close relationship between accused-appellant and Paguntalan had thereby been established. No unfavorable inference can be drawn from the mere happenstance that the alleged assailant used to stay at accused-appellant’s bodega for it is but natural for stay-in workers to utilize their employer’s quarters. Nor will the fact that accused-appellant and the assailant share a common tongue, suggest unanimity of thought and action in every activity. Moreover, an assumed intimacy is of no legal bearing inasmuch as conspiracy transcends companionship (People v. Padrones, 189 SCRA [1990]; People v. Custodio, 47 SCRA 289 [1972]). Neither will the fact that the killer entered accused-appellant’s property after the shooting and the subsequent incidents such as the short rest of Paguntalan at accused-appellant’s resthouse and the attempt to procure medicine from Sotto necessarily connote cabal between accused-appellant and Paguntalan. At most, these after-events connote companionship which, as aforesaid, is inefficacious to support the conclusion that these situations were the direct repercussions of an unlawful plot.

2. ID.; ID.; NOT MANIFESTED BY THE FACT THAT APPELLANT COULD HAVE FACILITATED THE ESCAPE OF THE ACCUSED.— The trial judge seems to imply that the circumstances posterior to the killing are equivalent to acquiescence on the part of accused-appellant vis-a-vis the felony accomplished by Paguntalan to such an extent that the focus of the disquisition below posed the query that accused-appellant and Major Manago could have facilitated the escape of Paguntalan . These inferences completely ignore the precept that to establish conspiracy, evidence of actual cooperation, rather than mere cognizance or approval of an illegal act is required (Underhill’s Criminal Evidence, Section 773, pp. 1403-1405; Sibal and Salazar, J., Compendium on Evidence, 1990 3rd ed. p. 403; 7 Francisco, Revised Rules of Court, 1973, ed., p. 724).

3. ID.; ID.; NONCHALANT ATTITUDE OF APPELLANT AND HIS GUEST AFTER THE COMMOTION, NOT TANTAMOUNT TO PRIOR KNOWLEDGE OF THE KILLING.— The trial court similarly construed the nonchalant attitude of accused-appellant and the guests at his residence immediately after the commotion to be diametrically opposed to human psychology, short of saying that this stoic stance is tantamount to prior knowledge on the part of Sotto and Major Manago that Tiu would be killed in the afternoon of April 25, 1993. Again, this criticism overlooked the doctrine enunciated in People v. Dabon (216 SCRA 656 [1992]) to the effect that different people react differently to a given situation or type of situation and there is no standard form of human behavioral response when one is confronted with a strange and startling experience. As correctly observed by the Office of the Solicitor General, Accused-appellant was then hosting a party at his residence and it would even be a social faux pas for him to leave his guests for the sole purpose of extracting information as to the commotion over which he has no concern, nor cause for worry. At any rate, mere presence at the scene of the crime cannot, by itself, be considered as an indication of conspiracy (People v. Buntan, Sr., 221 SCRA 421 [1993]).

4. REMEDIAL LAW; CREDIBILITY; ADVERSELY AFFECTED BY MAJOR CONTRADICTIONS.— Lucero’s utterances, nay, vacillation hardly inspire belief, since from a distance of ten meters, Lucero was not occupying a vantage point for him to insist that the gun had no trigger guard, more so when only the upper portion of the firearm was exposed. Worst of all these conjectures, Lucero surmised that since the firearm had no trigger guard, then perforce it must belong to accused-appellant, based on his recollection when the latter supposedly exhibited the same gun to him. To our mind, Lucero had incurred major contradictions on a vital aspect as to the ownership of the fatal weapon which generate "overriding doubts on his credibility" (People v. Cruz, 231 SCRA 759 [1993]).

5. ID.; EVIDENCE; BURDEN OF PROOF; LIES UPON THE PROSECUTION AND MUST BE DISCHARGED ON THE STRENGTH OF ITS OWN EVIDENCE AND NOT ON THE NON-EXISTENCE OF EVIDENCE SUBMITTED BY THE DEFENSE.— This Court cannot also subscribe to the proposition of the trial court that the low economic status of the triggerman is enough to lay the basis for concluding that the gun could have been supplied by accused-appellant for it is just like saying that only accused-appellant can purchase or supply the gun to the exclusion of other persons financially capable of owning a gun. It must be recalled that the gun used was unlicensed and there was thus no record on the ownership thereof. Ownership of the fatal weapon was attributed to accused-appellant only upon the mere say-so of Lucero’s revival of past memory whose testimony as aforesaid, is far from convincing. Again, the lower court’s reasoning is anchored on the erroneous syllogism that all guns without a trigger guard exclusively belong to Accused-Appellant. As to how the gun allegedly changed hands from accused-appellant to Paguntalan, the trial court blamed the former for his reluctance to offer an explanation on the so-called transfer. This, too, must be rejected for it has practically tossed the onus probandi incumbent upon the prosecution, anent the ingredients of the crime, to the shoulders of accused-appellant, contrary to judicial dictum that perdition of the accused must rest not on the weakness of the evidence for the defense but on the strength of the prosecution’s evidence (People v. Labarias, 217 SCRA 483 [1993]). And corollary to this rule, it must be stressed that the burden of proving that an accused is responsible for the offense charged, or somehow contributed to the successful performance thereof, lies upon the People and that burden must be discharged on the strength of its own evidence and certainly not upon the weakness or non-existence of the evidence submitted by the defense (People v. Fider, 223 SCRA 117 [1993]).

6. ID.; ID.; WEIGHT AND SUFFICIENCY; PROBABILITY, NOT SUFFICIENT TO ESTABLISH OWNERSHIP OF FATAL WEAPON.— There was also the insinuation of the trial court that fascination of accused-appellant with Django movies, as manifested by his preoccupation of wearing a hat similar to the hat worn by Django in the movies, is adequate foundation to jump to the conclusion that he would likewise be obsessed in possessing a .22 revolver like that used by Django in the movies. This kind of supposition typifies the traditional fallacy anchored on non-sequitur and verisimilitude. At this juncture, we cannot help but observe that the magistrate below had stretched his imagination beyond the parameters of reason. Probability can never serve as substitute for the requisite quantum of proof to establish the factum probans as to the ownership of the fatal weapon.

7. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO CONVICT.— Jurisprudence of recent vintage instructs us that before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of all others, as the author of the crime (People v. Salangga, 234 SCRA 407 [1994]; People v. Genobia, 234 SCRA 699; 706 [1994]) and that circumstantial evidence should be acted upon with extreme caution (Annotation on Conviction on the Basis of Circumstantial Evidence, 234 SCRA 664; citing People v. Jalon, 215 SCRA 680 [1992]).

8. ID.; ID.; ID.; CIRCUMSTANCES IN CASE AT BAR, NOT SUFFICIENT TO CONVICT.— Bearing in mind these shibboleths, we are of the opinion, and thus hereby hold that the specie of evidence alluded to below is, even if taken collectively, grossly inadequate to indicate community of criminal design between accused-appellant and the triggerman, much less participation of accused-appellant to the misdeed. By and large, Accused-appellant’s demeanor anterior to, concomitant with, or posterior to the fatal act do not suggest confederation with the triggerman. While it is not indispensable that the "act of agreement" be demonstrated, "the fact of agreement must nevertheless be convincingly shown" (People v. Manuel, 234 SCRA 532 [1994]; citing People v. Padrones, 189 SCRA 496 [1990]). In the case at bench, we entertain serious doubts as to the "fact of agreement," as the same is drawn from after-events and anchored as it is on unfounded conjectures. Indeed, conclusions based on speculations cannot serve as basis for conviction (People v. Sujetado, 221 SCRA 382 [1993]). While there were several circumstances which invited a keener study of the case, still, the facts from which the inferences were derived were not duly established pursuant to Section 5, Rule 133 of the Revised Rules on Evidence.

The festive mood of the residents in Barangay Linao, Ormoc City, Leyte on the occasion of a religious procession held thereat around 5:30 in the afternoon of April 25, 1993 was marred by mayhem when Arturo Tiu was fatally shot supposedly by Noel Paguntalan. The triggerman’s accountability therefor remains an open question inasmuch as jurisdiction over his person has yet to be acquired. But insofar as Jesus D. Sotto is concerned, the court a quo did not have such a problem of jurisdiction, and after trial, adjudged him guilty of murder for allegedly confederating with Paguntalan in killing the victim. Disposed thus the Court below:chanrob1es virtual 1aw library

WHEREFORE, decision is hereby rendered finding JESUS SOTTO guilty beyond reasonable doubt of Murder defined and penalized in Article 248 of the Revised Penal Code in relation to Section 1 of P.D. 1866. An unlicensed firearm having been used in the commission of the offense, this Court imposes upon the said Jesus Sotto the sentence of RECLUSION PERPETUA. Further, said Jesus Sotto is directed to indemnify the heirs of Arturo Tiu the sum of TWO HUNDRED THOUSAND PESOS as compensation for moral damages, another sum of FIFTY THOUSAND PESOS as compensation for actual damages and the further sum of FIFTY THOUSAND PESOS and to pay the costs.

Further, by reason of the finding of guilt of the accused and of the imposition of the sentence of Reclusion Perpetua, pursuant to Supreme Court Circular No. 2-92 the bail bond filed for the provisional liberty of the accused is cancelled and the sheriff of this Court is directed to commit the person of the convicted accused to the BJNP, Ormoc City for commitment to the National Penitentiary at Muntinlupa, Rizal while awaiting the resolution of the review of this decision which by law will be made by the Honorable Supreme Court.chanrobles lawlibrary : rednad

SO ORDERED.

(pp. 414-415, Record.)

Inculpatory facts unfurled by the People are to the effect that the gunshot came from the direction of Paguntalan and Tiu who were then scuffling with each other. After Paguntalan broke loose, he ran toward Ormoc City while the victim to chase him, to no avail. As Paguntalan fled, he bumped into a float and after regaining composure, he ran towards the compound of Jesus Sotto, his employer, for whom he had been working as stay-in-janitor.

Arturo Tiu was pronounced dead on arrival due to a gunshot wound on his chest At the locus criminis a .22 cal. magnum revolver without a serial number plus ammunition were recovered.

At around one o’clock the following morning, Paguntalan went to the house of Gregorio Lape, a farmhand working at Sotto’s sugarcane plantation in Barangay Salvacion, Ormoc City, allegedly to rest before proceeding to Sotto’s resthouse half a kilometer away. Paguntalan requested Lape to, ask for medicine from Sotto. After a brief rest, Paguntalan went on his way. When Lape went to Sotto’s house in Barangay Linao, Ormoc City at around ten in the morning, Sotto was informed of Paguntalan’s presence in his resthouse. But Sotto told Lape to tell Paguntalan to surrender to the proper authorities. Using his own money, Lape bought some tablets and proceeded to Sotto’s resthouse to give the medicine to Paguntalan. Thereafter, Alfredo Manago, a retired police major and Sotto’s trusted aide, tried to’ convince Paguntalan to surrender. Efforts exerted by the policemen to arrest Paguntalan’ at the crack of dawn on April 17, 1993 were futile considering that Paguntalan was no longer at Sotto’s resthouse, and has remained at large since then.chanrobles lawlibrary : rednad

On the other hand, exculpatory premises adduced by the defense disclosed that in the course of the fiesta, Sotto was at his residence entertaining his guests some of whom included Col. Andoy, Capt. Sode, and Major Manago. Disturbed by a commotion outside, Sotto, Col. Andoy, and other guests proceeded to the gate of Sotto’s house and obtained the information that a person had been shot and that the felon passed through Sotto’s compound. Col. Andoy then told Sotto that since they had nothing to do with the incident, it would be better for them to return inside the house and eat. Later, Sotto was informed by a policeman that Paguntalan had shot Tiu. Sotto replied that he was not aware of such untoward incident but nonetheless conveyed to the policeman that he will assist in Paguntalan’s surrender. Sotto and Major Manago likewise assured Major Cruz at the police station at around 9 in the morning of April 26, 1993 that they would negotiate for Paguntalan’s surrender. No amount of persuasion from Major Manago could convince Paguntalan to surrender which prompted Sotto and Major Manago to secure assistance from the police for Paguntalan’s apprehension. Yet, upon arrival of the policemen at Sotto’s resthouse on April 27, 1993, Paguntalan was nowhere to be found.

The foregoing backdrop led to the filing of the corresponding information for murder, later amended, thus:chanrob1es virtual 1aw library

That on or about the 25th day of April, 1993, at around 5:30 o’clock in the afternoon, during the religious procession in honor of the Feast of Blessed St. Mark, in Brgy. Linao, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused NOEL PAGUNTALAN alias "Bobong" without any provocation, with treachery and evident premeditation and with the use of an unlicensed firearm, did then and there willfully, unlawfully and feloniously shot the victim herein ARTURO TIU without giving the latter sufficient time to defend himself, thereby hitting the victim at his chest which caused his instantaneous death. Autopsy Report is hereby attached.

That accused JESUS SOTTO alias "Django", being then the employer of accused Noel Paguntalan alias "Bobong" and the owner of the gun used in shooting the victim herein ARTURO TIU, did then and there, willfully, unlawfully and feloniously take part PRIOR to its commission by providing the gun used in killing, otherwise the crime could not have been committed.chanrobles lawlibrary : rednad

In violation of Article 248, Revised Penal Code. Ormoc City, June 18, 1993.

(pp. 52-53, Record.)

Subsequent to the approval of his bail bond (p 37, Record), Sotto entered a plea of not guilty in the course of arraignment (p. 62, Record), after which, reception of evidence from the prosecution ensued consisting mainly of testimonial evidence emanating from eight witnesses.

To establish the fact and cause of the victim’s demise, the attending physician was presented as the first witness of the People (pp. 20-30, tsn, Sept. 13, 1993). This was followed by Edgardo Vivero who sat on the witness stand and claimed that it was he who saw Paguntalan shoot Arturo Tiu, and that he deliberately bumped Paguntalan with the jeep he was driving, which was converted to a float, to prevent the culprit’s escape. And since the assailant was able to enter Sotto’s compound Vivero did not give pursuit and instead helped the victim (pp. 42-49, tsn Sept. 13, 1993). The third witness in the person of Pedro Lucero, who worked for one year as utility man of Sotto, asserted that he saw the killer from a distance of ten meters holding a .22 caliber magnum which he believed to be the same gun he saw in the possession of Sotto (pp. 11-14, tsn, Sept. 14, 1993). Lucero anchored his perception along this line on the fact that he allegedly saw the same firearm, which had no trigger guard, in the possession of Sotto during a drinking spree in Sotto’s house, and that whenever Lucero requested cash advance, Sotto would instead show the gun and say to him: "You can borrow this instead" (pp. 14-16, tsn, Sept. 14, 1993). For his part, Gregorio Lape narrated that Paguntalan visited him the day after the shooting and requested him to procure medicine from Sotto and that Major Manago tried to negotiate Paguntalan’s possible surrender (pp. 8-17; 24-27, tsn, Sept. 15, 1993). Two other witnesses corroborated the testimony of Lucero relative to the scuffle between Paguntalan and the victim (p. 13, tsn, Sept. 20, 1993; p. 8, tsn, Sept. 21, 1993). The policeman who arrived at the scene of the crime likewise testified that it was he who recovered the gun plus the bullets, that he recorded the incident on the blotter and that he turned over the recovered items to the desk sergeant at the police station (pp. 28-36, tsn, Sept. 20, 1993).

Sofronio Chu, a barangay councilman at Linao, was presented as witness to establish that on some occasions, he was asked by the Barangay Captain to amicably settle the land dispute between Sotto and Regino Albienda, the father-in-law of Arturo Tiu (pp. 9-17, tsn, Sept. 22, 1993). Thelma Tiu was presented as the last witness who recalled the mental anxiety she and her family went through as a consequence of her husband’s violent death (pp. 42-48, tsn, Sept. 22, 1993).

Jesus Sotto tried to parry the inculpatory thrust against him by claiming that he had no participation in the killing of the victim and that he and Major Manago even volunteered to exert efforts towards Paguntalan’s surrender (p. 16, tsn, Nov. 24, 1993). Sotto’s version concerning the efforts exerted to secure Paguntalan’s surrender was corroborated by Major Manago when he, too, sat on the witness stand (pp. 5-6, tsn, Dec. 8, 1993).chanrobles law library

As herein initially intimated, an unfavorable disposition was handed down, premised, among other factors, on the bad relationship between Sotto and the victim’s father-in-law which supposedly triggered the victim’s liquidation, and the so-called existence of a sinister scheme concocted between Sotto and Paguntalan towards the common evil objective inferred by the court a quo from the mass of circumstantial evidence, thus:chanrob1es virtual 1aw library

The evidence indisputably showed that the deceased Arturo Tiu was killed by the accused Noel Paguntalan. Noel’s flight removed all doubts as to this fact What this court is asked to resolve only is whether the accused Jesus Sotto should likewise be held criminally responsible for the killing of said Arturo Tiu. The prosecution said he is while the defense vehemently professed innocence. Which position does the evidence support?

An assiduous appreciation of the evidence showed that the dispute between the accused Jesus Sotto and Regino Albienda, Arturo Tiu’s father-in-law, over a parcel of land which Sotto bought and which is adjacent to the land owned by Regino Albienda and which the latter wanted to redeem from Sotto has generated bad relationship between the accused Jesus Sotto and said Regino Albienda. This dispute and bad relationship extended to their subalterns, retired police major Alfredo Manago, the trusted aide and liaison of Jesus Sotto and the deceased Arturo Tiu, the son-in-law of Regino Albienda. This bad relationship erupted into a violent confrontation on February 24, 1993 when retired police major Alfredo Manago was mauled by Arturo Tiu and some of Tiu’s men which resulted in Manago’s hospitalization for injuries he sustained.

Did this land dispute and the February 24, 1993 mauling of Alfredo Manago by Arturo Tiu trigger the killing of Arturo Tiu?

The court examines the evidence further. Noel Paguntalan also known as Bobong shot and killed Arturo Tiu. The evidence, however, does not show that said Bobong had a personal motive to kill Arturo Tiu. If Noel had no personal motive to kill, then why did he kill Arturo?

By Jesus Sotto’s own testimony Noel Paguntalan worked with him as a janitor for about two years and stayed with him using his bodega as his living quarters. They both come from the province of Negros and both speak the Ilongo dialect. This showed close relationship between the two accused.

Immediately after shooting Arturo Tiu, Noel ran to the enclosed premises of Jesus Sotto and at about 1:00 o’clock dawn of April 26, 1993 showed up at the rest/farmhouse of Jesus Sotto at Barangay Salvacion, Ormoc City. He asked a farmhand of Jesus Sotto, Gregorio Lape, to ask money from Jesus Sotto for his medicines as he had a swollen face. Jesus Sotto was informed about the presence of Noel in his rest/farmhouse at about 10:00 o’clock that morning of April 26, 1993.chanrobles law library : red

As his passport to freedom Jesus Sotto tried to convince the court that he exerted efforts to secure the surrender of Noel Paguntalan but he and Alfredo Manago failed. Did they? Or did they instead facilitate the escape of Noel Paguntalan in order to frustrate the ends of justice and/or to prevent Noel from telling his own tale? Did the accused Jesus Sotto and his witness Alfredo Manago appear credible on the witness stand as to convince this court to give their testimony full faith and credit?

Both witnesses swore that they came to know about the April 25, 1993 shooting incident at about 5:30 p.m. when they heard a commotion and when some people pursuing the assailant ran towards Sotto’s gate. Notwithstanding the very startling occurrence, they both claimed to have no reaction to the incident. Instead, they just continued their eating and drinking, allegedly on the advice of a certain Colonel Andoy. Both Sotto and his witness claimed that they came to know only that the person shot was Arturo Tiu and the person who shot Arturo was Noel Paguntalan, also known as Bobong, at about 6:00 o’clock that same afternoon when another team of policemen led by Baunsit informed them about it.

These asseverations of Sotto and Manago that the shooting incident did not evoke from them any form of reaction, not even by asking for the name of the victim and the identity of the assailant, is unusual and unnatural. Their casual behaviour of just continuing with their eating and drinking even after the happening of a startling occurrence involving no less than a known adversary (Arturo Tiu) and a trusted employee of Sotto (Paguntalan) who ran to his (Sotto’s) enclosed compound is beyond the natural behaviour of men who are confronted by the same situation. Why did they behave that way? Why did they not even bother to ask for the identity of the victim and the identity of the assailant and further bother to investigate whether the assailant was still inside his compound rather than continued in their eating and drinking and behaved as if nothing startling happened? Was it because both Sotto and his witness Manago had prior knowledge that Arturo Tiu would be killed by Noel Paguntalan that afternoon of April 25, 1993 and the killing incident did not surprise them anymore? The following circumstances may help give the answer:chanrob1es virtual 1aw library

1. Noel Paguntalan, also known as Bobong, shot and killed Arturo Tiu. The evidence, however, does not show that said Bobong had a personal motive or personal reason to kill Arturo Tiu.

2. Noel Paguntalan worked with his co-accused Jesus Sotto as the latter’s janitor for about two years and stayed with Jesus Sotto until the incident, using Sotto’s bodega as his living quarters. They both come from the province of Negros and both speak the Ilongo dialect.

3. Immediately after shooting Arturo Tiu, Noel ran to the enclosed premises of Jesus Sotto.

4. At about 1:00 o’clock dawn of April 26, 1993 Noel showed up at the rest/farmhouse of Jesus Sotto at Barangay Salvacion, Ormoc City.

5. Noel asked a farmhand of Jesus Sotto, Gregorio Lape, to ask money from Jesus Sotto for his medicines as he had a swollen face.

6. Gregorio Lape saw Jesus Sotto at around 10:00 o’clock in the morning of April 26, 1993 and told Sotto that Noel was at the rest/farmhouse. He went back to Barangay Salvacion in the afternoon with ponstan tablets for Noel’s swollen face.chanrobles virtual lawlibrary

7. On instructions of Jesus Sotto, Alfredo Manago saw Noel Paguntalan at Sotto’s rest/farmhouse at past 2:00 o’clock in the afternoon of April 26, 1993 and actually met Noel Paguntalan.

8. At past 10:00 o’clock in the evening of April 26, 1993 a policeman named Arturo Pacaldo went to see Noel at Sotto’s rest/farmhouse.

9. The Ormoc police went to the rest/farmhouse in the early morning of April 27, 1993 and Noel was no longer there and had disappeared until the present.

The defense wanted to show that accused Jesus Sotto came to know about the presence of Noel at his rest/farmhouse at 10:00 o’clock in the morning of April 26, 1993 only. Assuming this to be true, why did he not immediately relay this information to the police in order to effect the arrest of Noel and thus be able to clear his (Sotto’s) name? Why did he still have to send Manago to see Noel? Was the meeting between Manago and Noel really for the purpose of persuading Noel to surrender or to prepare for his escape? Alfredo Manago is a retired police officer and he must have known that he could have effected the arrest of Noel even without a warrant as Noel had just committed a crime. In fact, he could have used force to bring Noel to the folds of the law. This he did not do. Or, he could have asked some policemen to accompany him when he went to see Noel. Again, he did not do this. Instead, he went to see Noel by himself in the company of a truckman, a certain Potente, another trusted man of accused Jesus Sotto. And late in the evening a certain Arturo Pacaldo of the police mysteriously showed up at the resthouse of Jesus Sotto and when the police posse arrived at the resthouse in the following morning Noel was nowhere to be found. All these circumstances tend to infer that Manago saw Noel not to persuade him to surrender but for something else. Was Noel Paguntalan asked to escape or was his lips forever sealed by death?

As shown by evidence Noel Paguntalan had no personal reason to kill Arturo Tiu. He was just a win lowly janitor working for a living with Jesus Sotto. Both Jesus Sotto and Alfredo Manago, however, have a motive. Arturo Tiu and Alfredo Manago were both the frontliners in the land dispute between Jesus Sotto and Regino Albienda (Arturo’s father-in-law). As a matter of fact that dispute erupted into a violence on February 24, 1993 when Alfredo Manago was mauled by Arturo Tiu and some of his men and Manago was left for dead. That was barely two months before the shooting to death of Arturo Tiu on April 25, 1993. There is therefore sufficient circumstantial evidence to premise a conclusion that the land dispute and the February 24, 1993 incident precipitated the April 25, 1993 killing of Arturo Tiu. But, is there sufficient evidence to hold accused Jesus Sotto criminally liable for the killing of Arturo Tiu?

Exhibit "B" is a miniature .22 caliber magnum revolver made by a North American company. It is peculiar in size as it can be hidden in one’s palm. It is fancy looking and is a peculiar weapon. It is therefore unthinkable that a lowly janitor with very limited income such as Noel Paguntalan would be attracted into acquiring a fancy looking but lethal firearm such as Exhibit "B" unless somebody who has the means to buy it gave it to him. Jesus Sotto has the means.

Further, Pedro Lucero told the court that when he was still working with the accused Jesus Sotto he saw the same weapon with the accused Jesus Sotto. On several occasions whenever he would make a cash advance for his salary Sotto would get the same weapon from his pocket and asked him to have the weapon instead of a cash advance. During drinking sessions Sotto would also show to them the same firearm. No motive had been shown by the defense that Pedro Lucero would pervert the truth.

Examining Exhibit "B" the court noted a similarity in look of the same weapon to the favorite magnum revolver used by an American movie actor in the Django movies. This prompted the court to ask Jesus Sotto why he is called "Django" and he explained that his being called Django began when he started wearing a hat similarly worn by Django in the movies. Obviously, Accused Sotto is fascinated with Django of the movies. Because of that fascination Jesus Sotto wore a hat similar to the hat worn by Django in the movies. There is therefore strong reason to believe that he too would be fascinated into possessing a miniature .22 caliber magnum revolver similar in look with the magnum revolver used by Django in the movies. This tends to strengthen Pedro Lucero’s testimony that this fatal weapon was seen by him in Jesus Sotto’s possession in several instances. There is sufficient circumstantial evidence then to show that Sotto owned the fatal weapon, Exhibit "B" .chanrobles virtual lawlibrary

Between the positive testimony of Pedro Lucero that he saw the same weapon in the possession of accused Jesus Sotto and the latter’s denial, in the absence of any evidence which would taint the credibility of Lucero (and none was shown), and in the face of Sotto being an accused in the present case and his testimony therefore tainted with his desire to be free, this court gives full faith and credit to the testimony of Pedro Lucero.

How did Exhibit "B" reach or get into the hands of Noel Paguntalan? Sotto did not make any explanation. Instead, he absolutely denied having seen the weapon before. He absolutely denied having it in his possession before. He absolutely denied ownership of the same weapon.

From the bits and pieces of circumstances put together there is sufficient evidence to show that there was a concerted effort by a group of men to kill Arturo Tiu and thereafter to frustrate the ends of justice. These are the circumstances:chanrob1es virtual 1aw library

1. Noel Paguntalan, also known as Bobong, shot and killed Arturo Tiu. The evidence, however, does not show that said Bobong had a personal motive or personal reason to kill Arturo Tiu.

2. Noel Paguntalan worked with his co-accused Jesus Sotto as the latter’s janitor for about two years and stayed with Jesus Sotto until the incident of April 25, 1993 happened, using Sotto’s bodega as his living quarters. They both come from the province of Negros and both speak the Ilongo dialect.

3. Immediately after shooting Arturo Tiu, Noel ran to the enclosed premises of Jesus Sotto.

4. At about 1:00 o’clock dawn of April 26, 1993, Noel showed up at the rest/farmhouse of Jesus Sotto at Barangay Salvacion, Ormoc City.

5. Noel asked a farmhand of Jesus Sotto, Gregorio Lape, to ask money from Jesus Sotto for his medicines as he had a swollen face.

6. Gregorio Lape saw Jesus Sotto at around 10:00 o’clock in the morning of April 26, 1993 and informed Sotto about the presence of Noel in the rest/farmhouse and saw Noel again in the afternoon when he delivered to Noel the ponstan tablets for Noel’s swollen face.

7. On instructions of Jesus Sotto, Alfredo Manago saw Noel Paguntalan at Sotto’s rest/farmhouse at past 2:00 o’clock in the afternoon of April 26, 1993 and actually met Noel Paguntalan.

8. At past 10:00 o’clock in the evening of April 26, 1993 a policeman named Arturo Pacaldo went to see Noel at Sotto’s rest/farmhouse.

9. The Ormoc police went to the rest/farmhouse in the early morning of April 27, 1993 and Noel was no longer there and had disappeared until the present.

10. Accused Jesus Sotto owned the fatal weapon. Exhibit "B." Though, he denied having seen the weapon before, denied having possessed it before; and denied ownership, the court finds such denial self-serving and gave full faith and credit to the testimony of Pedro Lucero that he saw the same weapon in the possession of accused Sotto before the incident.

11. Sotto’s assertion that he did not learn the identity of the victim and the assailant until past 6:00 o’clock that evening of April 25, 1993 convinced the court that Sotto is not a credible witness and is a lying witness. The incident was too important and too startling for Sotto not to have spontaneously inquired as to the identities of the victim and the assailant

12. Sotto’s and his group’s casual behavior of just continuing in their drinking and eating even after a startling occurrence involving the killing of an adversary by his janitor had happened.

13. Sotto did not immediately inform the police about the whereabouts of Noel. Instead, he just sent Manago to see Noel. While Sotto and Manago made it appear that they exerted efforts to secure the surrender of Noel the court finds such a claim as self serving and without weight. The fact that Noel completely disappeared after the so-called "efforts to persuade him to surrender" showed that there was really no such effort to persuade Noel to surrender, or to use force if necessary, to bring Noel to the folds of the law. There is instead good reason to believe that the escape of Noel was facilitated by the accused.chanrobles law library : red

14. The existing land dispute between Jesus Sotto and Arturo’s father in law, Regino Albienda, where said Arturo Tiu and Alfredo Manago were the frontliners in it.

15. The mauling of Alfredo Manago by Arturo Tiu and his men on February 24, 1993 where Alfredo Manago was left for dead.

Circumstantial evidence is sufficient for:chanrob1es virtual 1aw library

1. There is more than one circumstance;

2. The facts from which the inferences are derived are proven;

3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In People v. Ludday, 61 Phil. 216, 221, the Supreme Court ruled:chanrob1es virtual 1aw library

No general rule can be laid down as to the quantity of circumstantial evidence which in any case will suffice. All the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.

The Supreme Court, in the same case, also cited with approval the following doctrine:chanrob1es virtual 1aw library

A conviction may rest upon circumstantial evidence alone, but the facts and circumstances must be such as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused.

Guided by the foregoing legal yardstick, are the pieces of circumstances enumerated above absolutely incompatible with the accused’s innocence and cannot be given any other conclusion but that of the guilt of the accused Jesus Sotto?

The court reviews the evidence again and finds it consistent with only one conclusion that the killing of Arturo Tiu by Noel Paguntalan was precipitated by the land dispute between Jesus Sotto and Regino Albienda and triggered by the mauling of Alfredo Manago by Arturo Tiu on February 24, 1993. Noel Paguntalan had no stake in that dispute. He was not involved. But he worked as a janitor in the employ of accused Jesus Sotto. Noel had no reason of his own to terminate the life of Tiu. He therefore acted only upon instruction by one who had the motive to kill Arturo Tiu. Both Sotto and Manago had that motive.

The fatal weapon used which is exhibit "B" is a miniature size .22 caliber magnum revolver made by a North American company. It is peculiar in size as it is so small that it can be hidden in one’s palm. It is not easily available. Only a person with means and with right access could have acquired it. Certainly, a janitor like Noel Paguntalan could not have that gun if it were not provided him by one who had the means and the access to acquire it. Pedro Lucero told the court that he saw the same weapon in the possession of Jesus Sotto when he was still working with him. On several occasions it was taken from his (Sotto’s) pocket and haughtily offered to him (Lucero) instead of a cash advance. The defense showed no credible evidence which would taint the credibility of said Pedro Lucero and the court found no reason not to accept said testimony as fact The court therefore gave Lucero’s testimony full faith and credit. As accused owned the fatal weapon and there was no explanation how it reached Noel Paguntalan but mere denials the conclusion is inevitable that Sotto provided Noel Paguntalan with the weapon.

The assertion by both Sotto and Manago that even after the shooting and the commotion they just casually continued with their drinking and eating apparently unmoved by the startling occurrence and did not even bother to inquire for the identities of the victim and the assailant inspite of the assailant’s act of running to Sotto’s compound did the defense no good. It unequivocably showed foreknowledge by them of what was to happen that afternoon of April 25, 1993. Indeed, what one knows ahead brings no more surprises, no more reactions.

Noel Paguntalan took refuge in Sotto’s rest/farmhouse and Sotto knew about it. Assuming that he learned about Noel’s presence in his rest/farmhouse only after Gregorio Lape told him at about 10:00 o’clock in the morning of April 26, 1993, yet he did not inform the police immediately (which a prudent and innocent man should have done) who at that time were looking for Noel already. Instead, he sent Manago to Noel. The seeing by Manago of Noel could elicit two possibilities. One, to persuade him to surrender as contended by Sotto and Manago, the other is to facilitate the escape of Noel or seal his lips forever. As the court found the testimony of Sotto and Manago as self-serving and not credible, the court gave their claim about their alleged effort to persuade Noel to surrender scant consideration. The court relied on the fact that Noel disappeared after their so-called "effort to persuade him to surrender" in spite of all the opportunities available to Sotto and Manago to prevent his escape, including the use of force, if necessary.chanrobles.com:cralaw:red

The bits of circumstances shown and explained above collectively indicate that Noel Paguntalan, Jesus Sotto, and one or more unindicted individuals acted in concert, had a common design and understanding to kill Arturo Tiu. Though no direct evidence of conspiracy is shown in the evidence, this does not detract from the fact that the act of Noel Paguntalan in killing Arturo Tiu is also an act of his co-conspirators. This has been the consistent rulings of the Supreme Court as embodied in the following, among a number them, jurisprudence:jgc:chanrobles.com.ph

"The time-honored jurisprudence is that direct proof is not essential to prove conspiracy. It may be shown by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished and from which may logically be inferred that here was a common design, understanding or agreement among the conspirators to commit the offense charged.

Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter in and pursue a common design. The existence of the assent of minds may be and from the secrecy of the crime, usually must be inferred from proof of the circumstances which, taken together, apparently indicate they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact, connected and cooperative, indicating a closeness of personal association and a concurrency of sentiment, a conspiracy may be inferred though no actual meeting among them to concert is proved. (People v. Carbonel, 48 Phil., 868; People v. Calucer, No. L-6460, May 7, 1954).

The community of interests due to relationship, the absence of immediate and sufficient cause or provocation, the joint attack and the obvious plan to deal separately with the complainants are facts and circumstances from which the unity of design that characterizes conspiracy can be inferred without need of direct proof. (People v. Carbonel, 48 Phil. 236).

In conspiracy, no formal agreement between the parties to do the act charged is necessary. It is sufficient that the minds of the parties meet understanding so as to bring about an intelligent and deliberate agreement to do the act and to commit the offense charged, although such agreement is not manifested by any formal words. A mutual implied understanding is sufficient, so far as the combination or confederacy is concerned, to constitute the offense. Previous acquaintance is unnecessary, and it is not essential that each conspirator shall take part in every act, or the other conspirators in the execution of the act of conspiracy. Conspiracy implies concert of design and not participation in every detail of execution . . .. If the object of the combination is unlawful, the means contemplated to effect such object is immaterial. . . . and it is not even necessary that the means should have been agreed on, or that anytime should have been set for the accomplishment of the design. (12 CJ. 544-545; People v. Ging Sam, Mo. L-4287, Dec. 29, 1953).

Conspiracy is inferrable and proven by joint and concerted acts of the accused. (People v. Plandez, 132 SCRA 69).

There is conspiracy where several accused by their acts aimed at the same object, one performing one part and another performing another part so as to complete it with a view to the attainment of the same object, and their acts, though apparently independent are in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.(People v. Dalusag, 133 SCRA).

Conspiracy having been established, all the conspirators, are liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one is the act of all. (People v. Loreno, 130 SCRA 311)."cralaw virtua1aw library

(pp. 399 - 412, Record.)

Deeply distressed by the thought of spending the remaining chapters of his life in jail, Accused-appellant interposed the recourse at bench to rectify certain alleged misimpressions of the court of origin in:chanrob1es virtual 1aw library

I. . . . giving full credence to the prosecution’s evidence, particularly the testimony of Pedro Lucero.

II. . . . concluding that the gun used in killing Arturo Tiu belonged to accused-appellant Jesus Sotto.

III. . . . convicting the accused-appellant for conspiracy in the murder of Arturo Tiu on mere speculations and conjectures, as well as insufficient circumstantial evidence.

IV. . . . disallowing other witnesses for the defense.

V. . . . awarding damages based on the sole testimony of Thelma Tiu whose relationship with the victim is still open to question.

(p. 68, Rollo.)

In lieu of an appellee’s brief, the Office of the Solicitor General opted to manifest and recommend the exoneration of accused-appellant on the ground that the web of circumstances pertinent to the case hardly produces the moral certainty anent accused-appellant’s culpability (p. 235, Rollo).

To buttress the premise that it was Sotto who principally entertained a sinister plot against Arturo Tiu, the trial court underscored the land dispute between Sotto and the victim’s father-in-law to the point of concluding that this circumstance triggered the commission of the felony. This bad relationship, said the trial court, erupted into a violent confrontation on February 24, 1993 when Major Manago, an aide of Sotto, was mauled by Arturo Tiu and his men (p. 175, Rollo). Yet, it would seem that such legal dispute does not categorically translate to enmity harbored by Sotto towards the victim’s father-in-law, including the victim for the simple reason that it was Sotto who initially won in the case for legal redemption, as acknowledged by Sofronio Chu, when the witness for the prosecution was subjected to cross-examination:chanrobles virtual lawlibrary

CROSS EXAMINATION

ATTY. BACOLOD —

Q: Now, Mr. Chu, do you know who was the prevailing party in that Civil Case No. 3017-07

SOFRONlO CHU

A: Yes, sir.

Q: Who was the prevailing party in that civil case?

A: It was Jesus Sotto, sir.

Q: The defeated parties in that civil case who?

A: The Albiendas.

Q: So it is Regino Albienda and wife Zosima Albienda who appealed to the Court of Appeals?

A: Yes, sir.



(pp. 29-31, tsn, September 22, 1993)

In plain and simple terms, it is the victim’s father-in-law who would logically have an axe to grind against Sotto, the prevailing party, due to the preliminary legal rebuff. As to whether the show-down, so to speak, which occurred on February 24, 1993 between Major Manago and Arturo Tiu’s family is enough to establish a nexus of ill-motive on accused-appellant’s part, suffice it to say that a confrontation of such character is personal between those privy thereto and is by itself inadequate to demonstrate a devious reason for accused-appellant to cause Arturo Tiu’s liquidation allegedly through the instrumentality of Paguntalan.

Prescinding from the perception of the trial court that the evidence does not disclose Paguntalan’s personal motive against the victim (p. 400, Record) still, it does not necessarily follow that Paguntalan had no such motive and that he could not have acted on his own volition in killing Tiu, for:chanrob1es virtual 1aw library

. . . the apparent lack of a motive for committing a criminal act does not necessarily mean that there are none, but that simply they are not known to us, for we cannot probe into the depths of one’s conscience where they may be found hidden away and inaccessible to our observation. We are also conscious of the fact than an extreme moral perversion may lead a man to commit a crime without a real motive but just for the sake of committing it.

(People v. Taneo, 58 Phil. 255; 256-257 [1993])

It is beyond cavil that the testimonial evidence pointed to Paguntalan as the gunman. Nonetheless, the court a quo chose to dig deeper by examining the possible reason for the slaying which course of action is not to be discouraged, as indeed, a probable instigator or brains behind the crime was entirely possible. It was in the pursuit of this theory where we believe the trial court went overboard when it tried to pin authorship of the crime on accused-appellant on the basis of inconclusive evidence.

As a prelude to the major conclusion that accused-appellant and Paguntalan acted in concert to liquidate the victim, the magistrate below expressed the idea that since Paguntalan worked as janitor for two years for accused-appellant using the latter’s bodega as living quarters, that because both of them hail from the province of Negros, coupled with the fact that they speak the same dialect, ergo, close relationship between accused-appellant and Paguntalan had thereby been established. No unfavorable inference can be drawn from the mere happenstance that the alleged assailant used to stay at accused-appellant’s bodega for it is but natural for stay-in workers to utilize their employer’s quarters. Nor will the fact that accused-appellant and the assailant share a common tongue, suggest unanimity of thought and action in every activity. Moreover, an assumed intimacy is of no legal bearing inasmuch as conspiracy transcends companionship (People v. Padrones, 189 SCRA [1990]; People v. Custodio, 47 SCRA 289 [1972]). Neither will the fact that the killer entered accused-appellant’s property after the shooting and the subsequent incidents such as the short rest of Paguntalan at accused-appellant’s resthouse and the attempt to procure medicine from Sotto necessarily connote cabal between accused-appellant and Paguntalan. At most, these after-events connote companionship which, as aforesaid, is inefficacious to support the conclusion that these situations were the direct repercussions of an unlawful plot. Withal, the trial judge seems to imply that the circumstances posterior to the killing are equivalent to acquiescence on the part of accused-appellant vis-a-vis the felony accomplished by Paguntalan to such an extent that the focus of the disquisition below posed the query that accused-appellant and Major Manago could have facilitated the escape of Paguntalan (p. 14, Decision; p. 401, Record). These inferences completely ignore the precept that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required (Underhill’s Criminal Evidence, Section 773, pp. 1403-1405; Sibal and Salazar Jr., Compendium on Evidence, 1990 3rd ed. p. 403; 7 Francisco, Revised Rules of court, 1973 ed., p. 724).chanrobles.com : virtual law library

The trial court similarly construed the nonchalant attitude of accused-appellant and the guests at his residence immediately after the commotion to be diametrically opposed to human psychology, short of saying that this stoic stance is tantamount to prior knowledge on the part of Sotto and Major Manago that Tiu would be killed in the afternoon of April 25, 1993 (pp. 14-15, Decision; pp. 176-177, Rollo). Again, this criticism overlooked the doctrine enunciated in People v. Dabon (216 SCRA 656 [1992]) to the effect that different people react differently to a given situation or type of situation and there is no standard form of human behavioral response when one is confronted with a strange and startling experience. As correctly observed by the Office of the Solicitor General, Accused-appellant was then hosting a party at his residence and it would even be a social faux pas for him to leave his guests for the sole purpose of extracting information as to the commotion over which he has no concern, nor cause for worry (p. 21, Manifestation; p. 235, Rollo). At any rate, mere presence at the scene of the crime cannot, by itself, be considered as an indication of conspiracy (People v. Buntan, Sr., 221 SCRA 421 [1993]).

With reference to the insinuation that accused-appellant was a passive participant in the escape of the triggerman, Accused-appellant sat on the witness stand to belie the same:chanrob1es virtual 1aw library

DIRECT EXAMINATION

ATTY. BACOLOD —

Q: Now when you were informed of the presence of Noel Paguntalan alias Bobong in your resthouse at your sugarcane plantation at Barangay Salvacion, what did you do? Please tell the court.

SOTTO —

A: I told Gorio Lape that it is a good thing Gorio that he (Bobong) is there. You tell him to surrender. If he is truly a man and he is man enough, tell him to surrender and face the circumstance.

Q: Now, after saying this to Gorio, what next did you do, if any?

A: I further told this Gorio to make sure that this Bobong will surrender and I will wait for Bobong until 12:00 o’clock to 1:00 o’clock- noon.

Q: Now, with that instruction from you what did this Gorio do?

A: Gorio went to the place.



(pp. 29-31, tsn, November 24, 1993).

The above was confirmed by Gregorio Lape, a witness for the prosecution:chanrob1es virtual 1aw library

CROSS EXAMINATION

ATTY. BACOLOD —

Q: Now, Mr. Lape, a while ago, you stated that you went to the house of Jesus Sotto at about 10:00 o’clock in the morning of April 26, 1993. Am I right there?

GREGORlO LAPE —

A: Yes, sir.

Q: And you were there not only to collect your weekly salary as farm maintenance worker of Jesus Sotto, but also to inform the latter about the presence of Bobong in his resthouse. Am I correct?

A: Yes, sir.

Q: As a matter of fact, when Mr. Jesus Sotto came to know of the presence of Bobong in the resthouse, he told you: "Good that he is there. Please tell him, if he is a man, he should be man made enough to surrender to the authorities to answer for what he had done." Of course, he told you these, Mr. Lape. Am I correct?



A: Yes, sir.



(pp. 27-29, tsn, September 15, 1993).

Major Manago declared that he, too, tried to persuade Paguntalan to surrender:chanrob1es virtual 1aw library

DIRECT EXAMINATION

ATTY. BACOLOD —

Q: Now, when you met Noel Paguntalan alias Bobong in said resthouse, what did you do there with him?

MANAGO —

A: I explained to Bobong the advantages and disadvantages of his surrender but he vehemently refused to do so and he even told me saying: "I will not surrender dead or alive."cralaw virtua1aw library

Q: Now, upon such utterance of his "I will not surrender dead or alive," at that very juncture what happened there?

A: At that juncture Roberto Patente, the driver of Mr. Sotto, held the hand of Noel Paguntalan but the latter shoved off the arm of Roberto Patente and at this time Noel Paguntalan was about to draw a chisel from his waist, good that I was able to pacify him.



(pp. 31-32, tsn, December 8, 1993.)

The foregoing categorical remarks indicate that accused-appellant and Major Manago did exert honest efforts to convince Paguntalan to surrender which negate the inference that both of them facilitated Paguntalan’s escape. It is regrettable to note that the tenor of the assailed decision is to the effect that accused-appellant and Major Manago contributed to Paguntalan’s flight by their sheer indifference to forthwith cause Paguntalan’s apprehension. But there is no direct evidence at hand, independently of the trial judge’s supposition, to show that accused-appellant and Major Manago assisted the assailant’s escape. And contrary to the observation of the lower court that accused-appellant did not forthwith relay the information as to the whereabouts of Paguntalan to the police, the record discloses that indeed, Accused-appellant and Manago actually went to the police headquarters on April 26, 1993 to talk with Major Cruz, promising the latter that they will bring Paguntalan to the authorities (pp. 21-25, tsn, Nov. 24, 1993, pp. 16-20, tsn, Dec. 8, 1993). When Paguntalan could not be convinced to surrender, Manago prepared a sketch of the vicinity where Paguntalan was staying and even volunteered to guide the police thereto (pp. 46-48, tsn, Dec. 8, 1993).chanrobles law library : red

Relative to the murder weapon used, the lower court opined that since Paguntalan was a "lowly janitor with very limited income" it was only accused-appellant who could been the owner and source of the gun because he "have the means" to acquire it, apart from the absence of an explanation from accused-appellant as to how the revolver reached the hands of Paguntalan (p. 19, Decision; p. 406, Record). The court a quo also noted that since accused-appellant bears the alias "Django" on account of his fascination with Django movies, it inevitably follows that he would also be obsessed in possessing a miniature .22 caliber revolver similar to the gun used by Django in the movies. The trial court went on to say that since Lucero testified that the fatal weapon was seen by him in accused-appellant’s possession on several occasions, then accused-appellant owned the weapon (p. 18, Decision; p. 405, Record).

Let us now recall the manner by which the trial court snared Lucero in changing his initial testimony that the gun shown in court is similar to that owned by accused-appellant to that desired conclusion that the gun thus displayed in court is the very gun owned by Accused-Appellant. Lucero thus testified at that start.

CROSS EXAMINATION

ATTY. BACOLOD —

Q: When you answered that the handgun being held by that policeman in plain clothes was similar to the one allegedly owned by Jesus Sotto, do you mean that answer of yours?

PEDRO LUCERO

A: Yes, sir.

Q: In other words Mr. Lucero, you would want to convey to this Honorable Court that the handgun being held by that policeman in plain clothes was not that of Mr. Jesus Sotto but rather it was only similar to the one allegedly owned by Jesus Sotto.



A: It is similar sir.

(pp. 29-30, tsn, September 14, 1993.)

Thereafter, Lucero took a different view upon words being practically put in his mouth by the trial court, to wit:chanrob1es virtual 1aw library



COURT —

Q: Is that firearm now marked as Exhibit "B" similar only to the firearm you saw in the possession of Jesus Sotto or is it the same firearm?

A: That is the one owned by Jesus Sotto.

ATTY. BACOLOD —

Q: In other words, what you would want to convey to this Honorable Court is that the firearm is not only similar but that it is owned by Mr. Jesus Sotto?

PROSECUTOR —

Precisely your honor, that is the answer.

COURT —

Already answered.



(pp. 31-33, tsn, September 14, 1993.)

Obviously, resemblance to and ownership of the murder weapon are poles apart insofar as lexicology and syntax are concerned, especially so when Lucero merely equated the gun used by the assailant with the firearm purportedly owned by accused-appellant in this fashion:chanrob1es virtual 1aw library

CROSS EXAMINATION

COURT —

Q: What made you believe that the same firearm which is now marked as Exhibit "B" is the same firearm that you saw in the possession of the accused Jesus Sotto?



LUCERO —

A: I know that firearm sir because it has no trigger guard.

ATTY. NUEVE —

Q: Are you trying to imply that this firearm which you said was owned by Jesus Sotto and shown to you do not also have a trigger guard?

ATTY. BACOLOD —

Q: Leading your Honor please.

COURT —

Sustained.

ATTY. NUEVE —

Q: Please tell the Court the characteristics of the firearm which you saw was in the possession of Jesus Sotto?

A: The firearm has no trigger guard sir.

Q: What is the relation of this firearm already marked as Exhibit "B" for the prosecution to that firearm which you have seen in the possession of Jesus Sotto?

A: That is the one sir.



(pp. 19-20, tsn, September 14, 1993.)



CROSS EXAMINATION

COURT —

Q: You said that you saw Exhibit "B" held by a person in plain clothes. Will you demonstrate to the Court how that firearm was held after the commotion?

LUCERO —

A: (Witness demonstrated to court by raising his right arm holding the firearm with the nuzzle of the firearm being seen but the back and trigger could not be seen.

Q: Now, with that position of the firearm, how can you tell that is the same firearm held by the policeman?

A: Because it came to my mind that the firearm held by that civilian man (sic) is the same firearm I saw in the possession of Django Sotto.

Q: Inspite of the fact that only the upper portion of the same firearm is exposed?

A: Yes. your Honor.

Q: Why, What other peculiar characteristic of the same firearm did you observe?

A: I know that, your Honor, because the firearm of Django Sotto has no trigger guard.

Q: So, are you telling the Court that any firearm that does not have a trigger guard belongs to Jesus Sotto?

A: I am sure of this firearm because it was shown to me everytime we arrive from our work place and that he was the only one in possession of that kind of firearm.chanrobles lawlibrary : rednad

ATTY. BACOLOD —

Your Honor please, we would like to make it of record that the gun as held by the witness, the portion of the gun where the trigger guard is covered by his hands.



(pp. 41-43, tsn, September 14, 1993.)

Lucero’s utterances, nay, vacillation hardly inspire belief, since from a distance of ten meters (p. 13, tsn, Sept. 14, 1993), Lucero was not occupying a vantage point for him to insist that the gun had no trigger guard, more so when only the upper portion of the firearm was exposed (pp. 41-43, tsn, Sept. 14, 1993). Worst of all these conjectures, Lucero surmised that since the firearm had no trigger guard, then perforce it must belong to accused-appellant, based on his recollection when the latter supposedly exhibited the same gun to him. To our mind, Lucero had incurred major contradictions on a vital aspect as to the ownership of the fatal weapon which generate "overriding doubts on his credibility" (People v. Cruz, 231 SCRA 759 [1993]).

Verily, an inference cannot be premised on another inference (U.S. v. Ross, 92 U.S. 281, 284; Manning v. John Hancock, Et Al., 100 U.S. 693; 698; 6 Moran, Comments on the Rules of Court, 1980 ed., p. 164).

This Court cannot also subscribe to the proposition of the trial court that the low economic status of the triggerman is enough to lay the basis for concluding that the gun could have been supplied by accused-appellant for it is just like saying that only accused-appellant can purchase or supply the gun to the exclusion of other persons financially capable of owning a gun. It must be recalled that the gun used was unlicensed and there was thus no record on the ownership thereof. Ownership of the fatal weapon was attributed to accused-appellant only upon the mere say-so of Lucero’s revival of past memory whose testimony as aforesaid, is far from convincing. Again, the lower court’s reasoning is anchored on the erroneous syllogism that all guns without a trigger guard exclusively belong to Accused-Appellant. As to how the gun allegedly changed hands from accused-appellant to Paguntalan, the trial court blamed the former for his reluctance to offer an explanation on the so-called transfer. This, too, must be rejected for it has practically tossed the onus probandi incumbent upon the prosecution, anent the ingredients of the crime, to the shoulders of accused-appellant, contrary to judicial dictum that perdition of the accused must rest not on the weakness of the evidence for the defense but on the strength of the prosecution’s evidence (People v. Labarias, 217 SCRA 483 [1993]). And corollary to this rule it must be stressed that the burden of proving that an accused is responsible for the offense charged, or somehow contributed to the successful performance thereof, lies upon the People and that burden must be discharged on the strength of its own evidence and certainly not upon the weakness or non-existence of the evidence submitted by the defense (People v. Fider, 223 SCRA 117 [1993]).

There was also the insinuation of the trial court that fascination of accused-appellant with Django movies, as manifested by his preoccupation of wearing a hat similar to the hat worn by Django in the movies, is adequate foundation to jump to the conclusion that he would likewise be obsessed in possessing a .22 revolver like that used by Django in the movies (p. 18, Decision; p. 405, Record). This kind of supposition typifies the traditional fallacy anchored on non-sequitur and verisimilitude. At this juncture, we cannot help but observe that the magistrate below had stretched his imagination beyond the parameters of reason. Probability can never serve as substitute for the requisite quantum of proof to establish the fadum probans as to the ownership of the fatal weapon.

Are the collateral matters examined by the court a quo constitutive of conspiracy as a mode of incurring criminal accountability for the death of Arthur Tiu?

Jurisprudence of recent vintage instructs us that before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of all others, as the author of the crime (People v. Salangga, 234 SCRA 407 [1994]: People v. Genobia, 234 SCRA 699; 706 [1994]) and that circumstantial evidence should be acted upon with extreme caution (Annotation on Conviction on the Basis of Circumstantial Evidence, 234 SCRA 664; citing People v. Jalon, 215 SCRA 680 [1992]). Bearing in mind these shibboleths, we are of the opinion, and thus hereby hold that the specie of evidence alluded to below is, even if taken collectively, grossly inadequate to indicate community of criminal design between accused-appellant and the triggerman, much less participation of accused-appellant to the misdeed. By and large, Accused-appellant’s demeanor anterior to, concomitant with, or posterior to the fatal act do not suggest confederation with the triggerman. While it is not indispensable that the "act of agreement" be demonstrated "the fact of agreement must nevertheless be convincingly shown" (People v. Manuel, 234 SCRA 532 [1994]; citing People v. Padrones, 189 SCRA 496 [1990]).

In the case at bench, we entertain serious doubts as to the "fact of agreement", as the same is drawn form after-events and anchored as it is on unfounded conjectures. Indeed, conclusions based on speculations cannot serve as basis for conviction (People v. Sujetado, 221 SCRA 382 [1993]). While there were several circumstances which invited a keener study of the case, still, the facts from which the inferences were derived were not duly established pursuant to Section 5, Rule 133 of the Revised Rules on Evidence.cralawnad

WHEREFORE, the decision appealed from is hereby REVERSED and another one entered ACQUITTING accused-appellant of the crime charged due to reasonable doubt. His immediate release from confinement is hereby ordered unless he is held for some other lawful cause.

SO ORDERED.

Feliciano, Romero, Vitug and Kapunan, JJ., concur.