Revilla v. Ombudsman

Revilla v Ombudsman

Facts:

1.     Petitioners are all charged as co-conspirators for their respective participations in the illegal pillaging of public funds sourced from the PDAF of Sen. Revilla for the years 2006 to 2010, in the total amount of P517,000,000.00. The charges are contained in 2 complaints, namely: (1) a Complaint for Plunder filed by the NBI and (2) a Complaint for Plunder and violation of Section 3 (e) of RA 301918 filed by the Field Investigation Office of the Ombudsman

a.     Sen. Revilla, as Senator, for authorizing the illegal utilization, diversion, and disbursement of his allocated PDAF through his endorsement of fraudulent NGOs created and controlled by Napoles' JLN Corporation in relation to "ghost" PDAF-funded projects, and for receiving significant portions of the diverted PDAF funds as his "commission" or "kickback

b.     Cambe, as Chief of Staff of Sen. Revilla during the times material to this case, for processing the utilization, diversion, and disbursement of Sen. Revilla's PDAF, and for personally receiving his own "commission" or "kickback"

c.      Napoles, as the mastermind of the entire PDAF scam, for facilitating the illegal utilization, diversion, and disbursement of Sen. Revilla's PDAF through: (1) the commencement via "business propositions" with the legislator regarding his allocated PDAF; (2) the creation and operation of JLN-controlled NGOs to serve as "conduits" for "ghost" PDAF-funded projects; (3) the use of spurious receipts and liquidation documents to make it appear that the projects were implemented by her NGOs; (4) the falsification and machinations used in securing funds from the various implementing agencies (IAs) and in liquidating disbursements; and (5) the remittance of Sen. Revilla's PDAF for misappropriation

d.     Lim and De Asis, as staff employees of Napoles, for assisting in the fraudulent processing and releasing of the PDAF funds to the JLN­-controlled NGOs

e.     Relampagos, Nuñez, Paule, and Bare (Relampagos, et al.), as employees of the Department of Budget and Management (DBM), for participating in the misuse or diversion of Sen. Revilla's PDAF, by acting as "contacts" of Napoles within the DBM, and thereby, assisting in the release of the Special Allotment Release Orders (SAROs) and Notices of Cash Allocation (NCAs) covering Sen. Revilla's PDAF

2.     Counter Affidavits:

a.     Revilla, contending that: (a) his and Cambe's signatures in the PDAF documents were forgeries; (b) the utilization of his PDAF had "always been regular and above-board"; (c) his involvement in the release of his PDAF is limited; and (d) there is "no credible proof" to show that he committed said illegal acts and that conspiracy exists between him and all the other persons involved in the PDAF scam

b.     Cambe, maintaining that: (a) his signatures in the PDAF documents were all forgeries; and (b) he did not receive any money from Sen. Revilla's PDAF nor connive with any of the alleged co-conspirators to acquire ill-gotten wealth.

c.      De Asis  admitting that: (a) he was an employee of the JLN Corporation; (b) he did pick up checks for JLN-controlled NGOs; and (c) he was an incorporator in one of the JLN-controlled NGOs; but denying that he personally benefited from the supposed misuse of Sen. Revilla's PDAF.

d.     Relampagos, et al.,  contended that: (a) there is no probable cause and factual or legal basis to indict them for the offenses charged; and (b) the criminal complaints did not specifically mention their names as among those who allegedly participated in the misuse of Sen. Revilla's PDAF.

3.     Ombudsman held that probable cause exists against Sen. Revilla, Cambe, Napoles, De Asis, and Lim for Plunder, considering that: (a) Sen. Revilla was a public officer at the time material to the charges; (b) with the help of his co-accused, who are public officers and private individuals, Sen. Revilla amassed, accumulated, or acquired ill-gotten wealth through their intricate modus operandi as described above; and (c) such ill-gotten wealth amounted to at least P224,512,500.00, way more than the threshold amount of P50,000,000.00 required in the crime ofPlunder.

In the same manner, the Ombudsman established probable cause to indict all the petitioners (along with several others), except Lim, for violation of Section 3 (e) of RA 3019 in light of the following: (a) Sen. Revilla, Cambe, and Relampagos, et al. are all public officers, while private individuals Napoles and De Asis all conspired with these public officers; (b) said public officers exhibited manifest partiality to Napoles and her cohorts by favoring her controlled NGOs without the benefit of public bidding and without having been authorized by an appropriation law or ordinance, as legally mandated; (c) said public officers likewise exhibited their bad faith by unduly benefiting from the "ghost" PDAF-funded projects through the receipt of "commissions," "kickbacks," and the like; and (d) their collective acts caused undue injury to the government in the aggregate amount of P517,000,000.00

4.     MR denied, Informations were filed by the Ombudsman before the Sandiganbayan, charging: (a) Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of Plunderand (b) all the petitioners, except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019

5.     To forestall the service of the warrant of arrest against him, Sen. Revilla filed a Motion for Judicial Determination of Probable Cause and Deferment and/or Suspension of Proceedings.86 Likewise, Relampagos, et al. moved that the Sandiganbayan declare lack of probable cause against them and suspend proceedings.

6.     the Sandiganbayan issued a Resolution, finding probable cause against petitioners and their co-accused and, thereby, issued the corresponding warrants of arrest against them

Issue:

whether or not the findings of probable cause against all petitioners should be upheld.

Held: Yes

Time and again, this Court's consistent policy has been to maintain non-interference in the Ombudsman's determination of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. Probable cause simply means "such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The term does not mean 'actual and positive cause' nor does it import absolute certainty. It is merely based on opinion and reasonable belief." "[T]hus, a finding based on more than bare suspicion but less than evidence that would justify a conviction would suffice.”

In determining the elements of the crime charged for purposes of arriving at a finding of probable cause, "only facts sufficient to support a prima facie case against the [accused] are required, not absolute certainty." In this case, the petitioners were charged with the crimes of Plunder and/or violations of Section 3 (e) of RA 3019. Plunder, defined and penalized under Section 2 of RA 7080, as amended, has the following elements: (a) that the offender is a public officer, who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; (b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1 (d) thereof; and (c) that the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least Fifty Million Pesos (P50,000,000.00). On the other hand, the elements of violation of Section 3 (e)of RA 3019 are: (a) that the accused must be a public officer discharging administrative, judicial, or official functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage, or preference in the discharge of his functions. In determining probable cause therefor, only a showing of the ostensible presence of these elements is required.

It should be borne in mind that probable cause is determined during the context of a preliminary investigation which is "merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed and that the person charged should be held responsible for it." It "is not the occasion for the full and exhaustive display of the prosecution's evidence." Therefore, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level." Accordingly, "owing to the initiatory nature of preliminary investigations, the technical rules of evidence should not be applied in the course of its proceedings." In this light, and as will be elaborated upon below, this Court has ruled that "probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay," and that even an invocation of the rule on res inter alios acta at this stage of the proceedings is improper.

Guided by these considerations, the Court finds that the Ombudsman did not gravely abuse its discretion in finding probable cause to indict Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of Plunder, and all the petitioners, except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019.

PROBABLE CAUSE AGAINST SEN REVILLA

Sen. Revilla faults the Ombudsman for allegedly disregarding his defense of forgery, and further contends that in the absence of other competent testimony, the Ombudsman cannot consider the whistleblowers' testimonies who purportedly were his co-conspirators in the PDAF scam, pursuant to the res inter alios acta rule.

The petition holds no water.

The finding of probable cause against Sen. Revilla is amply supported by the evidence on record. At the forefront are the PDAF documents, consisting of the written endorsements signed by Sen. Revilla himself requesting the IAs to release his PDAF funds to the identified JLN­-controlled NGOs, as well as other documents that made possible the processing of his PDAF, e.g., the MOAs executed by the legislator's office, the IA, and the chosen NGO. All these documents - even those not actually signed by Sen. Revilla - directly implicate him for the crimes charged, as they were nonetheless, all issued under the authority of his Office as Senator of the Republic of the Philippines.

Anent Sen. Revilla's claim that his signatures in the documentary evidence presented were forged, it must be emphasized that "the findings of the x x x prosecutor [on the issue of forgery] should be ventilated in a full-blown trial[.] [This] is highlighted by the reality that the authenticity of a questioned signature cannot be determined solely upon its general characteristics, or its similarities or dissimilarities with the genuine signature. The duty to determine the authenticity of a signature rests on the judge who must conduct an independent examination of the signature itself in order to arrive at a reasonable conclusion as to its authenticity. [As such], Section 22 of Rule 132 of the Rules of Court explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine."

Xxxx

Anent Sen. Revilla's claim that his signatures in the documentary evidence presented were forged, it must be emphasized that "the findings of the x x x prosecutor [on the issue of forgery] should be ventilated in a full-blown trial[.] [This] is highlighted by the reality that the authenticity of a questioned signature cannot be determined solely upon its general characteristics, or its similarities or dissimilarities with the genuine signature. The duty to determine the authenticity of a signature rests on the judge who must conduct an independent examination of the signature itself in order to arrive at a reasonable conclusion as to its authenticity. [As such], Section 22 of Rule 132 of the Rules of Court explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine."

Xxxx

Sen. Revilla opposes the admission of the whistleblowers' testimonies based on the res inter alios acta rule. However, in Reyes, citing Estrada v. Ombudsman, this Court had unanimously ruled that the testimonies of the same whistleblowers against Jo Christine and John Christopher Napoles, children of Janet Napoles who were also charged with the embezzlement of the PDAF, are admissible in evidence, considering that technical rules of evidence are not binding on the fiscal during preliminary investigation. This Court was unequivocal in declaring that the objection on res inter alios acta should falter:

Neither can the Napoles siblings discount the testimonies of the whistleblowers based on their invocation of the res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a conspirator under the parameters of Section 30 of the same Rule. To be sure, the foregoing rule constitutes a technical rule on evidence which should not be rigidly applied in the course of preliminary investigation proceedings.

PROBABLE CAUSE AGAINST CAMBE

There is no dispute that Cambe was Sen. Revilla's trusted aide, being his Chief of Staff. By such authority, he also exercised operational control over the affairs of Sen. Revilla's office, including the allocation of his PDAF. In fact, Cambe's signatures explicitly appear on several PDAF documents, such as the MOAs allowing the IAs to transfer Sen. Revilla's PDAF funds allocated for certain projects to various JLN-controlled NGOs.¹⁶⁶

Moreover, Cambe was personally identified by the whistleblowers to have received PDAF money for himself and for Sen. Revilla

PROBABLE CAUSE AGAINST NAPOLES

Based on the evidence in support thereof such as the PDAF documents, whistleblowers' testimonies, the accounts of the IA officials, and the COA report, as well as the field verifications of the FIO, Ombudsman, this Court is convinced that there lies probable cause against Janet Napoles for the charge of Plunder as it has been prima facie established that she, in conspiracy with Sen. Revilla, Cambe, and other personalities, was significantly involved in the afore-described modus operandi to obtain Sen. Revilla's PDAF amounting to at least P50,000,000.00 in "kickbacks." In the same manner, there is probable cause against Napoles for violations of Section 3 (e) of RA 3019, as it is ostensible that their conspiracy to illegally divert PDAF Funds to "ghost" projects caused undue prejudice to the government.

That a private individual, such as Napoles, could not be charged for Plunder and violations of Section 3 (e) of RA 3019 because the offenders in those crimes are public officers is a complete misconception. It has been long-settled that while the primary offender in the aforesaid crimes are public officers, private individuals may also be held liable for the same if they are found to have conspired with said officers in committing the same. This proceeds from the fundamental principle that in cases of conspiracy, the act of one is the act of all.

PROBABLE CAUSE AGAINST DE ASIS
Records show that De Asis was designated as the President/Incorporator of KPMFI which was one of the many NGOs controlled by Napoles that was used in the embezzlement of Sen. Revilla's PDAF allocations. Moreover, whistleblowers Luy and Suñas explicitly n,amed De Asis as one of those who prepared money to be given to the lawmaker.

xxx

To refute the foregoing allegations, De Asis presented defenses which heavily centered on his perceived want of criminal intent, as well as the alleged absence of the elements of the crimes charged. However, such defenses are evidentiary in nature, and thus, are better ventilated during trial and not during preliminary investigation. To stress, a preliminary investigation is not the occasion for the full and exhaustive display of the prosecution's evidence

PROBABLE CAUSE AGAINST LIM

The preparation and delivery of kickbacks to the legislator and/or his trusted staff are indeed overt acts that relate to his involvement in the PDAF scheme. To note, even if it is assumed that Lim only prepared the money and did not deliver the same as he claims, the act of preparation is still connected to the common objective of the conspiracy.

PROBABLE CAUSE AGAINST RELAMPAGOS ET. AL

whistleblower Luy positively identified Relampagos, et al. as Napoles's "contact persons" in the DBM; and (b) the COA Report found irregularities in their issuances of the aforesaid SAROs and NCAs.¹⁸² Ostensibly, these circumstances show Relampagos et al.'s manifest partiality and bad faith in favor of Napoles and her cohorts that evidently caused undue prejudice to the Government. Thus, they must stand trial for violation of Section 3 (e) of RA 3019.

CONCLUSION

 the Ombudsman (and the Sandiganbayan as to Relampagos, et al.) did not err in finding probable cause against all the petitioners. Their findings are fully supported by the evidence on record and no semblance of misapprehension taints the same. Moreover, this Court cannot tag key documentary evidence as forgeries and bar testimonies as hearsay at this stage of the proceedings; otherwise, it would defy established principles and norms followed during preliminary investigation. Jurisprudence teaches us that "[i]n dealing with probable cause[,] athe very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."¹⁸⁸ Overall, based on the foregoing disquisitions, the standard of probable cause was adequately hurdled by the prosecution in this case. As such, no grave abuse of discretion was committed by the Ombudsman and the Sandiganbayan in the proceedings a quo. All the petitioners should therefore stand trial for the crimes they were charged.

People v. Gaddi 170 SCRA 649 (1989)

People v Gaddi

 170 SCRA 649 (1989)

Facts:

1.     Nerio Gaddi was charged with the murder of Augusto Esguerra

a.     With intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation

b.     Stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death

2.     Arraignment: pleaded not guilty

3.     Prosecution presented 5 witnesses Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense.

4.     Prosecution version of facts:

a.     At about 5:00pm in Novaliches QC, Ernesto Guzman saw Nerio and the victim Augusto drinking gin.

b.     In the morning of the following day, Nerio told Ernesto that he killed his drinking partner Augusto and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him

c.      At around 2:00 pm of the same day, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City.

d.     Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman.

e.     The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy

f.      A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981. A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit.

5.     Defense's version of the facts:

a.      Accused Nerio testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta (Bong Kuleleng) near the house of Ernesto Guzman.

b.     At about 5:00 p.m., he was requested by Ernesto to buy gin. He left Ernesto and Augusta (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away.

c.       At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta was not there anymore.

d.     He inquired from Ernesto the whereabouts of Augusta and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken."

e.     At about 12:00 o'clock midnight, Ernesto informed him about the killing of Augusta. Guzman narrated to him that Augusta held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him.

f.      He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused.

g.     While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to the police station, he was forced to admit the killing of Augusto.

6.     RTC: Guilty

7.     Appealed and assigned the following errors

a.     Erred in giving weight to the testimony of Ernesto

b.     Erred in convicting the accused based on his written statement (exhibit F)

c.      Erred in appreciating qualifying circumstances of treachery and pre meditation

Issue:

Held:

Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that:

1) there be more than one circumstance;

2) the facts from which the inferences are derived are proven; and

3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 ]

Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that 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 any other hypothesis except that of guilty

In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra.

1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman

2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet. At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried

4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging

5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried

Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not

Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience

Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception."

Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.

Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement.

That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v. Tawat [G.R. No. L- 62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case:

The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae.

The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.)Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.] [at pp. 436-437; Emphasis supplied.]

The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "mañanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "mañanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.]

As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary.

Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion and always receive it with caution; not only because it is inherently weak and unreliable but also because of its easy fabrication. To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence". This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime.

The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi.

As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession.

However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered ashomicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that

As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of alevosia [People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ]

Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of

1. the time when the of tender determined to commit the crime;

2. an act manifestly indicating that the culprit clung to his dead termination; and

3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.]

As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.

Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount

of P50,000.00 awarded by the trial court should be reduced accordingly.

WHEREFORE, the appealed decision is MODIFIED and the accused- appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00.

SO ORDERED.