People vs. Abes

1/16/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 420
VOL. 420, JANUARY 20, 2004 259

People vs. Abes
*
G.R. No. 138937. January 20, 2004.
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO

ABES y YAMBOT @ “TONY” (deceased), SALDO YBAÑEZ
y ACEBES, ROBERTO BONTO y MENDOZA @ “BERT,”
RICARTE BUMAGAT y ORDONA, RAUL YBAÑEZ y
ACEBES and SIMEON SILVANO, JR., y GUTIERREZ @
“JHUN,” appellants.
Criminal Law; Robbery with Homicide; Evidence; As a rule,

familiarity with the physical features, particularly those of the face,
is actually the best way to identify the person.—Over the span of
time that the parties hereto had been living in the same town, they
have become acquainted with each other’s faces. In the rural areas,
people tend to be more familiar with their town mates. As a rule,
familiarity with the physical features, particularly those of the face,
is actually the best way to identify the person. It was precisely this
familiarity with the faces of the appellants that led Catalina to
positively identify them as the malefactors.
Same; Same; Same; The illumination from a fluorescent lamp,
the headlights of a parked jeep, and the lights of passing vehicles
suffice for such identification.—The conditions of visibility that
fateful evening were, in our view, sufficient for identification of the
malefactors. The illumination from a fluorescent lamp, the
headlights of a parked jeep, and the lights of passing vehicles
suffice for such identification. Moonlight, starlight, kerosene lamps,
a flashlight, and lights of passing vehicles have been declared
adequate to provide illumination sufficient for purposes of
recognition and identification. The illumination provided by a
fluorescent lamp, the headlights of a jeep, and the lights of passing
vehicles altogether made identification easier.
Same; Same; Same; Witnesses; Where there is nothing to
indicate that a witness was actuated by improper motives, his or her
positive declarations on the witness stand, made under oath,
deserve full faith and credence.—Appellants advance not a single
reason why Catalina would falsely accuse them or implicate them in
so terrible a wrong. Where there is nothing to indicate that a
witness was actuated by improper motives, his or her positive
declarations on the witness stand, made under solemn oath, deserve
full faith and credence.
www.central.com.ph/sfsreader/session/0000017706c1d64f888dc9c9003600fb002c009e/t/?o=False 1/23
Same; Same; Same; Denial and Alibi; Positive identification of

the accused where categorical and consistent, and without any
showing of ill motive on the part of the eyewitness testifying, should
prevail over the alibi
_______________
* EN BANC.
260
260 SUPREME COURT REPORTS ANNOTATED
People vs. Abes
and denial of appellants whose testimonies are not substantiated by

clear and convincing evidence.—Positive identification of the
accused where categorical and consistent, and without any showing
of ill motive on the part of the eyewitness testifying, should prevail
over the alibi and denial of appellants whose testimonies are not
substantiated by clear and convincing evidence. Such denial and
alibi are negative and self-serving evidence undeserving of any
weight in law.
Same; Same; Same; Alibi; For alibi to prosper, it is not enough
for the accused to prove that he was somewhere else when the crime
was committed; He must likewise prove that he could not have been
physically present at the scene of the crime or its immediate vicinity
at the time of its commission.—For alibi to prosper, it is not enough
for the accused to prove that he was somewhere else when the crime
was committed. He must likewise prove that he could not have been
physically present at the scene of the crime or its immediate vicinity
at the time of its commission.
Same; Same; Elements of the complex crime of robbery with
homicide.—In the special complex crime of robbery with homicide, a
crime primarily classified as one against property and not against
persons, the prosecution is tasked to establish the following
elements: (a) the taking of personal property with the use of
violence or intimidation against a person; (b) the property thus
taken belongs to another; (c) the taking is characterized by animus
lucrandi; and (d) on the occasion of the robbery or by reason
thereof, the crime of homicide, which is therein used in a generic
sense, was committed.
Same; Same; Conspiracy; Conspiracy as a mode of committing a
felony must be proved separately from and with the same quantum
of proof as the offense itself, but from its essential features of secrecy
and concealment, it need not be proved by direct evidence.—There is
conspiracy when two or more persons agree to commit a felony and
decide to commit it. Conspiracy as a mode of committing a crime

must be proved separately from and with the same quantum of
proof as the offense itself, but from its essential features of secrecy
and concealment, it need not be proved by direct evidence. Instead,
it is sufficient for conspiracy to be inferred from the conduct of the
accused before, during, and after the commission of the felony,
showing they had acted with a common purpose and design.
Same; Same; Damages; To be entitled to an award of actual
damages, it is necessary to prove the actual amount of the loss with
a reasonable degree of certainty, premised upon competent proof and
on the best evidence obtainable by the injured party, which usually
means official or valid receipts.—To be entitled to an award of
actual damages, it is necessary to prove the actual amount of the
loss with a reasonable degree of certainty, premised upon competent
proof and on the best evidence ob-
261
VOL. 420, JANUARY 20, 2004 261
People vs. Abes
tainable by the injured party, which usually means official or valid

receipts. Hence, we agree that the award of actual damages here
should be reduced to P131,000.00 only, consisting of the P91,000.00
cash lost during the robbery and the P40,000.00 incurred for
funeral services.
AUTOMATIC REVIEW of a decision of the Regional Trial

Court of Bacoor, Cavite, Br. 89.
The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellants.
Jose L. Sineneng, Jr. for accused S. Silvano, Jr.
Alfredo C. Medina for accused Raul and Saldo
Ybañez.
QUISUMBING, J.:
1
For automatic review is the decision of the Regional Trial
Court of Bacoor, Cavite, Branch 89, dated September 30,
1998, in Criminal Case No. B-94-293. Its fallo reads:
“ACCORDINGLY, finding all the accused (ANTONIO ABES y

YAMBOT @ TONY, SALDO YBAÑEZ y ACEBES, ROBERTO
BONTO y MENDOZA @ BERT, RICARTE BUMAGAT y ORDONA,
RAUL YBAÑEZ y ACEBES and SIMEON SILVANO, JR., y
GUITERREZ @ JHUN) GUILTY beyond reasonable doubt for (sic)
Robbery with Homicide, they are each hereby sentenced to die by
lethal injection one year after this decision becomes final. They are
hereby ordered, jointly and severally, to indemnify the private

complainant the amounts of P320,300.00 as compensatory damages;
P240,000.00 as loss of earning capacity of her husband; P50,000.00
as moral damages; P50,000.00 as exemplary damages and
P50,000.00 as and for attorney’s fees.
“Let the entire records of this case be transmitted to the Supreme
Court for automatic 2review.
“SO ORDERED.”
The appellants in the present case were all long-time

residents of the town of General Mariano Alvarez (GMA),
Cavite. All had previously been employed in various
capacities by the GMA Water
_______________
1 Records, pp. 455-474.

2 Id., at pp. 473-474.
262

People vs. Abes
District. Their alleged victims, the late Antonio Calaycay

and his wife, Catalina Calaycay, were also residents of GMA
and owners of a grocery and a retail store.
On July 11, 1994, the Office of the Provincial Prosecutor
of Cavite charged the appellants with the special complex
crime of robbery with homicide (robo con homicidio)
allegedly committed as follows:
“That on or about the 20th day of March 1994 at around 7:30

o’clock in the evening at Lot 3, Block 35, Carillo Teacher’s Village,
Municipality of Gen. Mariano Alvarez, Province of Cavite,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually
helping and aiding one another, with intent to gain, by means of
force, violence and intimidation, being then armed with a deadly
weapon and an unlicensed firearm, taking advantage of their
superior strength, and against the will and consent of the owners
thereof, did, then and there, willfully, unlawfully and feloniously,
take, steal, rob and carry away from Spouses Antonio Calaycay and
Catalina Calaycay the following, to wit:
1. Cash money amounting to P90,000.00;

2. Wallet containing P1,000.00 cash money, a Far East Bank
ATM card and a driver’s license; and
3. Check Booklet of the Bank of the Philippine Islands, and
during the commission of the crime of Robbery and/or
subsequent thereto and by reason or on the occasion
thereof, the above-named accused, with intent to kill, being
then armed with the aforementioned deadly weapon and

unlicensed firearm and again conspiring, confederating and
mutually helping and aiding one another, with treachery
and evident premeditation and with abuse of superior
strength, did then and there, wilfully, unlawfully and
feloniously, stab and fire upon the person of Antonio
Calaycay causing his subsequent death, and also shoot and
fire upon the person of Catalina Calaycay hitting her in the
abdomen, the above-named accused, having thus performed
all the acts of execution which should have produced the
crime of Murder as a consequence thereof but which
nevertheless did not produce it by reason of causes
independent of the will of the accused, that is, by reason of
the timely and able medical attendance rendered to the said
victim which prevented her death, to the damage and
prejudice of said Catalina Calaycay and to the legal heirs of
Antonio Calaycay.
3
“CONTRARY TO LAW.”
_______________
3 Records, pp. 1-2.
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VOL. 420, JANUARY 20, 2004 263

People vs. Abes
When arraigned, all of the appellants pleaded not guilty.

Thereafter, trial proceeded.
The prosecution’s version of the incident established that:
The spouses Antonio and Catalina Calaycay owned and
operated 4
a grocery store at the public market of GMA,
Cavite. They also had a retail store at their residence at
Block 3, Lot 35, Teacher’s
5
Village, GMA, which was directly
managed by Antonio.
At around 7:30 p.m. of Sunday, March 20, 1994, Antonio
and Catalina were on their way home from their grocery
store in the market aboard their jeep driven by Antonio.
When they reached home and were about to park their
jeep, they noticed appellants Antonio Abes, Raul Ybañez,
his brother Saldo Ybañez, and Roberto Bonto standing in
front of their house, while appellants Simeon Silvano, Jr.,
and Ricarte 6Bumagat were at the corner of the street near
their house. The faces of the Ybañez brothers, Bumagat,
Abes, and Bonto were familiar to Catalina because they
were frequent customers of their store. She also knew
Silvano,
7
Jr., for he was a former member of the police force of
GMA.
Before the Calaycay spouses could disembark from their

jeep, Abes and Raul Ybañez approached her, while Saldo
Ybañez and Bonto approached Antonio. All were carrying
short firearms. Suddenly, Abes announced a hold-up and
warned Catalina not to move. At the same time, he grabbed
Catalina’s bag, which contained the P90,000.00 sales for the
day from their grocery and her wallet containing P1,000.00,
her automated teller machine
8
(ATM) card, a check booklet
and her driver’s license. Catalina resisted and tried to hold
on to her bag. Raul Ybañez pistol-whipped
9
her while Abes
fired at her three times at close range, but only succeeded
in grazing her. Antonio tried to come to her assistance, but
was stabbed
10
thrice by Saldo Ybañez and shot three times by
Bonto. After Abes grabbed possession of Catalina’s bag, he
passed
_______________
4 TSN, 26 October 1994, p. 13.

5 Id., at p. 14.
6 TSN, 20 October 1994, p. 10.
7 TSN, 26 October 1994, pp. 19-20.
8 TSN, 20 October 1994, p. 12.
9 Id., at p. 13; TSN, 26 October 1994, pp. 32-35.
10 TSN, 20 October 1994, pp. 14-15.
264

People vs. Abes
it to Silvano, who then told his companions, “Hali kayo bilis,

sunod kayo sa akin, doon tayo sa likod dadaan”
11
(come quick,
follow me, and let’s pass at the back). The incident 12
was
witnessed by prosecution
13
witnesses Salvador Arcenal and
Catalino Mutya, Jr.
Antonio was first brought by Catalina and responding
neighbors to the Medicare Community Hospital in GMA,
where he was pronounced dead on arrival. Hoping that her
husband could still be revived, Catalina brought him to the
De La Salle University Medical Center in Dasmariñas,
Cavite. Efforts were made to revive Antonio, but in vain.
The autopsy conducted later by the National Bureau of
Investigation (NBI) showed that 14
Antonio died of “Wounds,
gunshot and stab, multiple.” Catalina was treated for
hematoma and contusions of the right shoulder.
The incident was reported by Catalina to the NBI and,
after an investigation, an NBI team composed of some
twenty (20) agents and operatives accompanied Catalina to
GMA. There all the appellants were apprehended.
At the trial, the appellants interposed the defense of

denial and alibi.
Appellant Abes testified that at the time that the
Calaycay spouses were held up, he was at his house at Area
D, Lot 2, Block 22, Barangay Malia, GMA, Cavite,
conversing with his neighbor,
15
Godofredo Inciong. Abes said16
he never left his house.
17
This was corroborated by Inciong
and Laarni Abes, appellant’s daughter.
For his part, appellant Bonto declared that he was at his
house at Lot 39, Block 17, Poblacion H, GMA, attending to
the relatives, neighbors, and friends who came for the
interment of his daughter, Ma. Lourdes Bonto-Egante, who 18
died on March 14, 1994 and was buried on March 20, 1994.
He presented
19
a neighbor, Herminio Vival, to support his
alibi. He also presented a written statement
_______________
11 TSN, 19 April 1995, pp. 10-11.

12 See TSN, 19 April 1995; TSN, 5 June 1995.
13 See TSN, 19 June 1995, 21 June 1995, and 26 June 1995.
14 Exh. “D” and sub-markings, Folder of Exhibits for the Prosecution.
15 TSN, 7 April 1997, pp. 8-12.
16 TSN, 28 October 1996, pp. 24-28.
17 TSN, 16 April 1997, pp. 5-8.
18 TSN, 12 February 1997, pp. 19-25.
19 TSN, 7 August 1996, pp. 15-22.
265
VOL. 420, JANUARY 20, 2004 265

People vs. Abes
executed by at least fifteen (15) of his neighbors for the same

purpose. Further, Bonto proferred in evidence a certification
from the Barangay Captain of Poblacion, GMA, attesting to
his good moral character.
Appellant Bumagat testified that at the time of the
incident he was at his house in Lot 37, Block 3, Area D,
GMA, together
20
with his wife and children cooking food for
supper. This was corroborated by Mrs. Virginia Gabriel, a
high school teacher, who claimed that she was at the
Bumagat residence from 6:00 to 8:30 p.m. of March 20, 1994,
conversing with the Bumagats and she saw Ricarte
Bumagat at his21 house the whole time, preparing the family’s
evening meal. Mrs. Gabriel admitted22 that she and her
husband were close friends of Bumagat.
Appellant Simeon Silvano, Jr., and Saldo Ybañez both
testified that they attended the burial of their co-appellant’s
deceased daughter, Maria Lourdes Bonto-Egante, who was
buried at the GMA cemetery on March 20, 1994. After the
interment, they proceeded to the house of Reynaldo Silvano,

the brother of Simeon, to attend Reynaldo’s birthday party.
With them was Adelfa Silvano, Simeon’s wife. They arrived
at Reynaldo’s party at around 6:40 p.m. 23
and stayed until
7:40 p.m., after which they left for home. Their attendance
at Reynaldo’s birthday fete was 24witnessed by appellant
Simeon’s 25sister, Zenaida Brion; his neighbor, 26
David
Sebastian; and his mother, Mrs. Caridad Silvano.
Appellant Saldo Ybañez further testified that at the time
of the alleged incident, he was already at home, having just
arrived from Reynaldo Silvano’s birthday
27
party, which he
attended with appellant Silvano, Jr.
Appellant Raul Ybañez stated under oath that at the
time of the occurrence complained of, he was at the house of
his neighbor, Divina Inciong, at Lot 6, Block 7, Barangay
Elises, GMA, watching
_______________
20 TSN, 29 January 1997, pp. 34-38.

21 TSN, 13 November 1996, pp. 6-7, 10-14.
22 Id., at pp. 5-6.
23 TSN, 9 October 1996, pp. 4-10.
24 TSN, 10 June 1996, pp. 37-42, 44-46.
25 TSN, 21 August 1996, pp. 7-9, 12-14.
26 TSN, 14 April 1997, pp. 6-13.
27 TSN, 14 October 1996, pp. 25-29.
266

People vs. Abes
TV. He28
was with his common-law wife, Josephine and their
child. Afterwards, he said he went home with his family
and went to sleep. To buttress his alibi,
29
he presented Divina
Inciong to corroborate his statement.
The defense presented its eyewitness, one Susan Purihin,
who testified that she saw the incident. She said no one
among the appellants had a hand in perpetrating the crime.
The culprits, according
30
to her, were one “Erning Taga” and
his companions.
The trial court disbelieved the defense, but found the
prosecu-tion’s version credible. Accordingly, it convicted the
appellants of robbery with homicide. In view of the
imposition of the death penalty upon all the appellants, the
records of the case were elevated to this Court for automatic
review.
During the pendency of this automatic review, we were
informed by Assistant Director Joselito A. Fajardo of the
Bureau of Corrections that appellant Antonio Abes died at
31
31
the National Bureau of Prisons Hospital on March 6, 2002.
The initial certificate of death presented showed 32
that the
death of Abes was due to undetermined causes. But on July
15, 2003, the Court was informed by Assistant Director
Reinerio F. Albano of the Bureau of Corrections that Abes
died on33March 6, 2002 due to “myocardial infarction, old and
recent” as indicated by the postmortem
34
findings in the
accompanying certificate of death.
In our resolution of August 5, 2003, we dismissed the case
as to appellant
35
Antonio Abes y Yambot “by reason of his
death.” Hence this review will focus now only on the
remaining five appellants, namely: Saldo Ybañez, Roberto
Bonto, Ricarte Bumagat, Raul Ybañez, and Simeon Silvano,
Jr.
The records show that on August 29, 2000, Atty. Alfredo
C. Medina manifested to us his wish to be relieved as
counsel for
_______________
28 TSN, 18 November 1996, pp. 9-11.

29 TSN, 17 June 1996, pp. 7, 10-11, 13-15.
30 See TSN, 24 July 1996, pp. 12-13.
31 Rollo, p. 341.
32 Id., at p. 342.
33 Id., at p. 353.
34 Id., at p. 355 (dorsal side).
35 Id., at p. 357.
267
VOL. 420, JANUARY 20, 2004 267

People vs. Abes
36
appellant Simeon Silvano, Jr. He was replaced by one Atty.
Jose L. Sineneng, Jr., who entered his appearance for
Silvano, Jr., on September 20, 2000. Atty. Sineneng also
moved for an extension of thirty 37
(30) days to file an
appellant’s brief for Silvano, Jr. In our resolution of
October 24, 2000, we granted Atty. Medina’s prayer to be
allowed to withdraw as counsel for Silvano, Jr., and granted
the motion of Atty. Sineneng, Jr., for an extension of thirty
(30) days or until October 25, 2000 to file an appellant’s brief
for Silvano, Jr.
On October 24, 2000, Atty. Sineneng filed a second
motion for extension of time of fifteen (15) days to file
appellant’s brief, which we granted in our resolution of
November 14, 2000 with warning that “this would definitely
be the last extension to be given by the Court.”
On November 13, 2000, Atty. Sineneng filed a “Final
Motion for Extension of Time to File Appellant’s Brief for
another thirty (30) days or until December 8, 2000, which we

granted with final warning that no more extensions would
be granted.
It then came to our notice that a copy of our resolution of
July 9, 2002 addressed to “Atty. Jose L. Saneneng” was
returned unserved, with the notation “moved out.” In our
resolution of September 24, 2002, we directed Atty.
Luzviminda D. Puno, Clerk of Court of the Supreme Court,
to verify from the Integrated Bar of the Philippines (IBP)
the current address of Atty. Jose L. Saneneng and to resend
the resolution of July 9, 2002 at such address. On November
25, 2002, the Court was informed by the IBP, through Atty.
Jaime M. Vibar, the IBP National Secretary, that “the name
Atty. Jose L. Saneneng does not appear in the list of our
members.”
On January 14, 2003, we resolved to direct Atty. Jose L.
Sineneng, Jr., to show cause why no disciplinary action
should be taken against him for his failure to file an
appellant’s brief for Silvano, Jr., and to comply with the
resolution requiring the filing of the brief. We also directed
appellant Silvano, Jr., to inform us whether he was
interested in securing the services of a new counsel or if he
desired us to appoint a counsel for him. We likewise resolved
to refer the letter of Atty. Vibar to the Bar Confidant for
verification of the Bar membership of Atty. Jose L.
Sineneng, Jr.
_______________
36 Id., at pp. 108-110.

37 Id., at pp. 112-113.
268

People vs. Abes
On February 24, 2003, we resolved that “the copy of the

resolution of 10 December 2002 addressed to Atty. Jose L.
Saneneng, counsel for appellant S. Silvano, Jr., Rm. 504 J &
T Building, Magsaysay Blvd., Sta. Mesa, Manila” be deemed
served and to require the Bar Confidant to submit a written
report on “Atty. Jose L. Saneneng’s membership in the Bar.”
In her report dated March 3, 2003, Atty. Maria Cristina
B. Layusa, the Bar Confidant, reported to us as follows:
Per verification, the name JOSE L. SANENENG does not appear in

the Roll of Attorneys. What appears therein is the name JOSE L.
SINENENG, JR. of Sta. Isabel, Malolos,38 Bulacan who was admitted
in the Philippine Bar on April 27, 1989.
On May 6, 2003, we again resolved to require Atty.

Sineneng to show cause why no disciplinary action should
be taken against him for failure to file appellant’s brief for
Silvano, Jr., and to file said brief within ten (10) days from
notice.
On June 3, 2003, Atty. Vibar informed us that there is an
IBP member by the name of Atty. Jose L. Sineneng, Jr., and
furnished us with39
both the office and home addresses of said
Atty. Sineneng. On August 5, 2003, we directed the Clerk
of Court to send all prior notices to both the residential and40
office addresses of Atty. Sineneng as furnished by the IBP.
To date, however, no appellant’s brief has been filed by Atty.
Sineneng on behalf of his client, Simeon Silvano, Jr., nor
has the latter manifested that he wishes to engage the
services of another lawyer or that he desires to have the
Court appoint a counsel de oficio for him.
It has been over three (3) years since counsel for Silvano,
Jr., last moved for an extension of time to file the required
brief. We have granted every extension of time prayed for,
but to no avail. Were this an ordinary41
appeal, we would not
have hesitated to apply Section 8, Rule 124 of the 2000
Rules of Criminal Procedure in
_______________
38 Rollo, p. 345.
39 Id., at p. 352.
40 Id., at p. 357.
41 SEC. 8. Dismissal of appeal for abandonment or failure to
prosecute.—The Court of Appeals may, upon motion of the appellee or
motu proprio and with notice to the appellant in either case, dismiss the
appeal
269
VOL. 420, JANUARY 20, 2004 269

People vs. Abes
42
relation to Section I, Rule 125. However, it is settled that
Section 8 of Rule 124 has no application
43
to cases where the
death penalty has been imposed. In the leading case of US
v. Laguna, 17 Phil. 533 (1910), we laid down the rule that
the power of this Court to review a decision imposing the
death penalty cannot be waived either by the accused or by
the court. We are well aware that for several years now, the
appellants herein have been languishing in death row, with
the possibility of execution by lethal injection dangling over
their heads like the sword of Damocles. This anguish has
been prolonged by the delay in the filing of the appellant’s
brief for Silvano, Jr., which has caused this case to remain
stagnant in the Court’s docket. Without prejudice to the
imposition of proper disciplinary action on counsel for the

accused, we can no longer permit that this case suffer
further delay. Hence, we shall proceed to discharge our task
by carefully reviewing the judgment of the trial court, based
on its findings of fact and application of the law thereon, and
thereby determining
44
the propriety of its imposition of the
death penalty which appellants now challenge.
In their joint brief, appellants Roberto Bonto and
Antonio Abes attribute to the RTC the following errors:
THE TRIAL COURT ERRED IN FINDING ACCUSED-

APPELLANTS ANTONIO ABES AND ROBERTO BONTO GUILTY
OF THE CRIME OF ROBBERY WITH HOMICIDE.
II
THE TRIAL COURT LIKEWISE ERRED IN DISREGARDING

THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANTS
ANTONIO ABES AND ROBERTO BONTO.
_______________
if the appellant fails to file his brief within the time prescribed by this
Rule, except where the appellant is represented by a counsel de oficio.
The Court of Appeals may also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency
of the appeal.
42 SEC. 1. Uniform procedure.—Unless otherwise provided by the
Constitution or by law, the procedure in the Supreme Court in original
and in appealed cases shall be the same as in the Court of Appeals.
43 People v. Esparas, 329 Phil. 339, 350; 260 SCRA 539 (1996).
44 People v. Cornelio, 148-A Phil. 375, 378; 39 SCRA 435 (1971).
270

People vs. Abes
III
ASSUMING THAT ACCUSED-APPELLANTS ANTONIO ABES

AND ROBERTO BONTO WERE GUILTY OF THE CRIME
CHARGED, THE TRIAL COURT ERRED IN IMPOSING THE
DEATH PENALTY UPON THEM, SINCE THE AGGRAVATING
CIRCUMSTANCE45
OF BAND WAS NOT ALLEGED IN THE
INFORMATION.
In his separate brief, appellant Bumagat assigns the

following errors:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-

APPELLANT RICARTE BUMAGAT y ORDOÑA GUILTY OF THE
CRIME OF ROBBERY WITH HOMICIDE DESPITE THE FACT
THAT THE EVIDENCE PRESENTED BY THE PROSECUTION
AGAINST HIM IS INSUFFICIENT TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

CONSPIRACY
46
IN THE COMMISSION OF THE CRIME
CHARGED.
In their brief, the brothers Saldo and Raul Ybañez assign as

errors the following:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-

APPELLANTS SALDO AND RAUL YBAÑEZ GUILTY OF THE
CRIME OF ROBBERY WITH HOMICIDE NOTWITHSTANDING
THE FACT THAT THEIR GUILT HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-

APPELLANT RAUL47 YBAÑEZ IS A CO-CONSPIRATOR IN THE
CRIME CHARGED.
_______________
45 See Rollo, pp. 271-281.

46 Id., at pp. 145-146.
47 Id., at pp. 206, 216.
271
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People vs. Abes
The assigned errors by the appellants present pertinent

issues concerning (1) the identification of appellants as the
culprits and the sufficiency of the prosecution’s evidence to
sustain a conviction for the offense charged; (2) the
correctness of the trial court’s finding that appellants acted
in conspiracy and holding them liable as co-conspirators;
and (3) the propriety of the penalty imposed on each of the
appellants.
Appellants question the identification of the malefactors
made by Catalina Calaycay and the other prosecution
witnesses on the ground that inadequate lighting at the

locus criminis made positive identification impossible or, at
best, unreliable. Appellants contend that in view of the poor
illumination at the crime scene, the trial court should not
have accepted the identification of the appellants as the
malefactors by the prosecution witnesses hook, line, and
sinker. Appellants submit that in view of the possible doubts
as to their identification by the prosecution witnesses, the
prosecution failed to overcome the presumption of innocence
in their favor.
For the appellee, the Office of the Solicitor General (OSG)
counters that the prosecution duly established that
Catalina Calaycay clearly saw the perpetrators whom she
identified as the appellants herein by the light of a
fluorescent light in front of the Calaycay residence. The
OSG argues that the defense likewise failed to controvert
the fact that the headlights of the Calaycays’ jeep were on,
prior to and at the time of the incident, adding further
illumination to the crime scene, thus making identification
even easier. Furthermore, the OSG claims that as duly
established by witnesses, the headlights of the many
passing vehicles afforded illumination for good visibility
thus making Catalina’s identification of the appellants as
the persons responsible for the crime highly credible.
In our view, appellants’ arguments lack merit. We
sustain the OSG’s submission.
First, in assailing the positive identification made by
Catalina Calaycay, the appellants conveniently overlook
her testimony that she was familiar with them even before
the incident complained of had occurred. Recall that
Catalina declared that moments before the incident, she
recognized the Ybañez brothers, Bumagat, Abes, and Bonto
because they were frequent customers of their store, while
she knew Silvano, Jr., as he was a former member of the
272

People vs. Abes
GMA police force. As against this positive declaration of

Catalina’s, the most appellants could offer were only denials
that they knew her, or that they patronized her store or
grocery in the public market. Only Bumagat admitted to
knowing48 her by face and that she had a store in the public
market.
Catalina’s testimony on appellants’ identification must
stand, taking into consideration that most of the parties to
this case are long-time residents of the49same municipality,
residing not too far from each other. Plainly said, the
parties are not strangers to one other. Catalina testified
50
50
that she has been residing in GMA since 1972. Abes
admitted on cross-examination that he had been staying in
his house
51
in said town for more or less twenty-five (25)
years. Bonto testified that he had 52been working as a
plumber in GMA for twenty (20) years. A witness for Bonto
testified
53
that Bonto has been his neighbor in GMA since
1975. A witness presented by Silvano, Jr., to corroborate
his alibi, declared that he and 54
Silvano, Jr., had been
neighbors in GMA since 1975. Only the Ybañez brothers
had been residents in said town for less than a year.
Over the span of time that the parties hereto had been
living in the same town, they have become acquainted with
each other’s faces. In the rural areas, people tend to be more
familiar with their town mates. As a rule, familiarity with
the physical features, particularly those of the55 face, is
actually the best way to identify the person. It was
precisely this familiarity with the faces of the ap-
_______________
48 TSN, 29 January 1997, pp. 40-41.

49 See TSN, 12 February 1997, pp. 8-9 where appellant Bonto testified
that he lived two (2) kilometers away from Abes, three (3) kilometers
distant from Silvano, Jr., from two (2) to (3) kilometers away from the
Ybañez brothers, and three (3) kilometers away from Bumagat. See also
TSN, 19 February 1997, p. 10, where Bonto admitted his house was only
seven hundred (700) meters away from the place where the crime took
place.
50 TSN, 26 October 1994, p. 12.
51 TSN, 7 April 1997, p. 44.
52 TSN, 12 February 1997, pp. 7-8.
53 TSN, 7 August 1996, p. 6.
54 TSN, 31 July 1996, p. 5.
55 People v. Rios, 389 Phil. 338, 347; 333 SCRA 823 (2000) citing
People v. Lagnas, G.R. Nos. 102949-51, 28 May 1993, 222 SCRA 745, 757.
See also People v. Reception, G.R. No. 94127, 1 July 1991, 198 SCRA 670,
677.
273
VOL. 420, JANUARY 20, 2004 273

People vs. Abes
pellants that led Catalina to positively identify them as the

malefactors.
Second, as found by the trial court, the robbery took place
at a very close range, in front of the Calaycay store, whose
immediate frontage was lighted by a fluorescent lamp, as
well as by the headlights of the jeep owned by the
Calaycays, and the lights of passing vehicles. Thus we agree
that Catalina was afforded the opportunity to look fully at
the faces of the persons who robbed her and fired a gun at
her as well as their companions who shot and stabbed her
husband to death. The conditions of visibility that fateful
evening were, in our view, sufficient for identification of the
malefactors. The illumination from a fluorescent lamp, the
headlights of a parked jeep, and the lights of passing56
vehicles 57 suffice for such58 identification.
59
Moonlight,
starlight, kerosene60
lamps, a flashlight, and lights of
passing vehicles have been declared adequate to provide
illumination sufficient for purposes of recognition and
identification. The illumination provided by a fluorescent
lamp, the headlights of a jeep, and the lights of passing
vehicles altogether made identification easier. But even
where the circumstances were less favorable, witness
Catalina’s familiarity with faces of appellants considerably
reduced any error in identifying the culprits. Appellants’
contentions on this score show neither a valid reason nor a
sufficient cause why we should reject Catalina’s testimony
identifying appellants as the culprits.
Appellants advance not a single reason why Catalina
would falsely accuse them or implicate them in so terrible a
wrong. Where there is nothing to indicate that a witness was
actuated by
_______________
56 People v. Gamboa, Jr., G.R. No. L-73463, 28 October 1986, 145

SCRA 289, 299; People v. Pueblas, G.R. No. L-32859, 24 February 1984,
127 SCRA 746, 754.
57 People v. Vacal, No. L-20913, 27 February 1969, 27 SCRA 24, 28.
58 People v. Gapasin, No. L-52017, 27 October 1986, 145 SCRA 178,
191.
59 People v. Porcare, No. L-37235, 5 February 1983, 120 SCRA 546;
People v. Nopia, No. L-36297-99, 26 April 1982, 113 SCRA 599, 606;
People v. Boado, No. L-44725, 31 March 1981, 103 SCRA 607, 614.
60 People v. Dolar, G.R. No. 100805, 24 March 1994, 231 SCRA 414,
423.
274

People vs. Abes
improper motives, his or her positive declarations on the

witness stand,61 made under solemn oath, deserve full faith
and credence.
Positive identification of the accused where categorical
and consistent, and without any showing of ill motive on the
part of the eyewitness testifying, should prevail over the
alibi and denial of appellants whose testimonies are not
substantiated by clear and convincing evidence. Such denial
and alibi are negative and 62

self-serving evidence
undeserving of any weight in law.
In this case, we find the evidence proffered by the
appellants in support of their respective alibis extremely
weak. For alibi to prosper, it is not enough for the accused to
prove that he was somewhere else when the crime was
committed. He must likewise prove that he could not have
been physically present at the scene of the crime 63
or its
immediate vicinity at the time of its commission. In this
case, we note the following:
a) Appellant Abes declared on cross-examination that

his house was but two (2) kilometers away64
from the
place where the Calaycay spouses resided.
b) Appellant Bonto testified that his house was a mere
seven 65hundred (700) meters away from the crime
scene.
c) Appellant Bumagat admitted that the distance from
his residence to
66
the place of the incident is but four
(4) kilometers.
d) Appellant Silvano, Jr., stated that his residence is
located but two (2) kilometers away from the situs of
the incident, a distance which could be negotiated
67
by
jeepney travel in just 15 to 20 minutes.
e) Appellant Raul Ybañez candidly stated68 that he
resided in Barangay Elises, GMA, Cavite, and that
at the 69time of the incident, he was at a neighbor’s
house.
_______________
61 People v. Arca, G.R. No. 135857, 18 June 2003, 404 SCRA 311.
62 People v. Bagsit, G.R. No. 148877, 19 August 2003, 409 SCRA 350.
63 People v. Colonia, G.R. No. 138541, 12 June 2003, 403 SCRA 713.
64 TSN, 7 April 1997, pp. 39-40.
65 TSN, 19 February 1997, p. 10.
66 TSN, 3 February 1997, p. 18.
67 TSN, 9 October 1996, pp. 14-15.
68 TSN, 18 November 1996, p. 4.
69 Id., at p. 9.
275
VOL. 420, JANUARY 20, 2004 275

People vs. Abes
f) Appellant Saldo Ybañez

70
testified that he lived just
across Silvano, Jr. The house of Reynaldo Silvano,
where appellants Silvano, Jr., and Ybañez allegedly
attended a birthday party at the time of the
occurrence of the offense charged is roughly one (1)

kilometer away from the71
residence of Silvano, Jr., as
per his own admission.
From the foregoing, it is clear that there was no physical

impossibility for any and all of the appellants to be at the
scene of the crime when it happened. Hence, their defense of
alibi must fail.
In the special complex crime of robbery with homicide, a
crime primarily classified as one against property and not
against persons, the prosecution is tasked to establish the
following elements: (a) the taking of personal property with
the use of violence or intimidation against a person; (b) the
property thus taken belongs to another; (c) the taking is
characterized by animus lucrandi; and (d) on the occasion of
the robbery or by reason thereof, the crime of homicide, 72
which is therein used in a generic sense, was committed. In
this case, we find that the prosecution had amply
established those elements.
But did the prosecution sufficiently establish conspiracy
among the appellants?
Appellants Bumagat and Raul Ybañez question the
finding of the trial court that there was conspiracy among
all the appellants to commit the crime. Bumagat reiterates
that since he was not positively identified at the crime scene,
he cannot be deemed a conspirator. Raul Ybañez points out
since all he did, as per the prosecution’s own testimony, was
to club Catalina on the shoulder with his firearm, there is no
definite showing from his acts that he assented to the killing
of Antonio. Instead, all that can be inferred from his act,
assuming the prosecution witnesses testified correctly, was
the intent to take part in the robbery and nothing more.
Thus, he argues that only the actual killers of Antonio
should be held liable.
_______________
70 TSN, 14 October 1996, pp. 29-31.

71 TSN, 9 October, 1996, p. 6.
72 People v. Solamillo, G.R. No. 123161, 18 June 2003, 404 SCRA 211,
citing People v. Del Rosario, G.R. No. 131036, 20 June 2001, 359 SCRA
166, 173-174.
276

People vs. Abes
There is conspiracy when two or more 73persons agree to

commit a felony and decide to commit it. Conspiracy as a
mode of committing a crime must be proved separately from
and with the same quantum of proof as the offense itself, but
from its essential features of secrecy and concealment, it
need not be proved by direct evidence. Instead, it is
sufficient for conspiracy to be inferred from the conduct of
the accused before, during, and after the commission of the
felony, 74showing they had acted with a common purpose and
design. Stated differently, the rule is that conviction is
proper upon proof that the accused acted in concert, each of
them doing his part to fulfill the common unlawful design,
each doing a part so that their combined acts, though
apparently independent of each other, were, in fact,
connected and cooperative, indicating a closeness75 of
personal association and a concurrence of sentiment. In
such a case, the act of one becomes the act of all and each of
the accused 76
will be deemed equally guilty of the crime
committed.
In the present case, Catalina saw Abes, Bonto, and the
Ybañez brothers standing in front of the Calaycay’s store
just as she and Antonio arrived from the public market on
board their jeep. At the street corner stood Silvano, Jr., and
Bumagat. All six were armed with short firearms. Abes and
Raul Ybañez approached Catalina’s side of the jeep, while
Bonto and Saldo Ybañez went over to Antonio’s side. Abes
declared the hold-up and grabbed Catalina’s bag. When
Catalina resisted, Abes fired at her, while Raul Ybañez
struck her with the handgun he was carrying. When
Antonio tried to go to her assistance, Bonto shot him, while
Saldo Ybañez stabbed him several times in the back. All the
while, Silvano, Jr., and Bumagat acted as look-outs in the
street corner. After the robbery was accomplished, with
Antonio Calaycay lying dying on the ground from his
injuries, Silvano, Jr., told Abes to hurry up and follow him
and all the appellants left together.
_______________
73 REV. PENAL CODE, Art. 8.

74 People v. Quilaton, G.R. No. 131835, 3 February 2000, 324 SCRA
670, 684.
75 People v. Del Rosario, G.R. No. 127755, 14 April 1999, 305 SCRA
740, 755.
76 People v. Musa, Jr., G.R. No. 137042, 17 June 2003, 404 SCRA 135,
citing People v. Givera, G.R. No. 132159, 18 January 2001, 349 SCRA
513, 532.
277
VOL. 420, JANUARY 20, 2004 277

People vs. Abes
Given this factual backdrop, it cannot be said that

appellants Bumagat and Raul Ybañez just happened to be
at the scene of the crime. It taxes one’s credulity to say they
did not share the common purpose of their co-accused in the
commission of an offense. In striking Catalina with his
handgun, while Abes was grabbing her bag, Raul Ybañez
clearly cooperated in and labored towards the same purpose
as the rest of the appellants, which is to rob their victims of
cash and valuables. Appellant Bumagat acted as one of two
look-outs before and while the robbery was in progress. He
facilitated the gang’s getaway. Both Raul Ybañez and
Bumagat fled the crime scene together with the other
appellants, leaving as they did together. All these prove
beyond reasonable doubt the existence of conspiracy among
all the appellants.
As a rule, whenever homicide has been committed as a
consequence of or on the occasion of the robbery, all those
who took part as principals in the robbery will also be held
guilty as principals of the special complex crime of robbery
with homicide although they did not actually take part in
the homicide, unless it clearly
77
appears that they endeavored
to prevent the homicide. In the case at bar, there is
absolutely no showing that either Raul Ybañez or Bumagat
tried to prevent the fatal stabbing and shooting of Antonio
Calaycay while Catalina Calaycay was being divested of her
bag containing money and other valuables. Thus, the trial
court did not err in holding that the cooperative acts of the
appellants, pursuing their common criminal purpose render
them equally liable as conspirators in the offense of robbery
with homicide.
However, we cannot agree that the death penalty be
imposed on appellants.
Appellant Bonto contends that it was error for the trial
court to sentence them to capital punishment, considering
that the generic aggravating circumstance of band was not
alleged in the Information. The Solicitor General agrees,
and submits that aggravating circumstances not alleged in
the charge sheet could not be appreciated so as to raise the
imposable penalty to death.
_______________
77 People v. Sabadao, G.R. No. 126126, 30 October 2000, 344 SCRA

432, 449-450 citing People v. Nang, G.R. No. 107799, 15 April 1998, 289
SCRA 16, 33-34; See also People v. Cando, G.R. No. 128114, 25 October
2000, 344 SCRA 330, 343 citing People v. Robles, G.R. No. 101335, 8
June 2000, 333 SCRA 107, 119.
278
People vs. Abes
We find merit in their contention and submission.

The crime of robbery with homicide is punishable by
reclusion perpetua to death under Article 294 (1) of the
Revised Penal Code. Absent any aggravating or mitigating
circumstance, the lower
78
penalty, which is reclusion perpetua,
should be imposed.
As to damages awarded by the trial court, modification is
in order. Civil indemnity ought to be awarded to the heirs of
the deceased Antonio Calaycay. For when death occurs as a
result of a crime, the heirs of the deceased are entitled to the
amount of P50,000.00 as indemnity ex delicto for the death
of the victim,
79
without need of further evidence or proof of
damages.
The amount of P320,300.00 was awarded by the trial
court as actual damages, which include: the hospital bill
from the De La Salle University Medical Center for
P1,300.00, the funeral service for the victim in the amount
of P40,000.00, a memorial lot for the victim at P180,000.00,
and expenses for the wake in the sum of P8,000.00.
However, the record discloses that only the amount of
P40,000.00 for the funeral80
services of the deceased is
supported by a receipt. To be entitled to an award of actual
damages, it is necessary to prove the actual amount of the
loss with a reasonable degree of certainty, premised upon
competent proof 81
and on the best evidence obtainable by the
injured party, which usually means official or valid
receipts. Hence, we agree that the award of actual damages
here should be reduced to P131,000.00 only, consisting of
the P91,000.00 cash lost during the robbery and the
P40,000.00 incurred for funeral services.
In addition, however, we find it proper that temperate
damages be awarded. Where the Court finds that some
pecuniary loss has been 82
incurred but the amount cannot be
proved with certainty, such as for medical services and the
wake, temperate damages are
_______________
78 REV. PENAL CODE, Art. 63, par. 2.

79 People v. Narca, G.R. No. 129217, 25 August 2000, 339 SCRA 76,
85.
80 Exh. “J”, Folder of Exhibits for the Prosecution. See also TSN, 16
October 1995, p. 12.
81 People v. Abrazaldo, G.R. No. 124392, 7 February 2003, 397 SCRA
137.
82 People v. De la Tongga, G.R. No. 133246, 31 July 2000, 336 SCRA
687, 700.
279
VOL. 420, JANUARY 20, 2004 279

People vs. Abes
83
appropriately given. Thus, in People v. Solamillo, which
involved robo
84
con homicidio, the computation in People v.
Abrazaldo fixing temperate damages at P25,000.00, which
is half the amount of the indemnity ex delicto, was affirmed.
We sustain also the award of P240,000.00 for loss of
earning capacity, based on the trial court’s computation.
The award of P50,000.00 as exemplary damages is likewise
justified, to stress the need for deterrence against the use of
firearms, particularly unlicensed ones. Finally, it follows
that the award of attorney’s fees must also be affirmed.
WHEREFORE, the decision of the Regional Trial Court
of Bacoor, Cavite, Branch 89, dated September 30, 1998, in
Criminal Case No. B-94-293 finding appellants Roberto
Bonto y Mendoza, Ricarte Bumagat y Ordoña, Simeon
Silvano, Jr. y Gutierrez, Raul Ybañez y Acebes, and Saldo
Ybañez y Acebes GUILTY beyond reasonable doubt of
Robbery with Homicide is AFFIRMED with
MODIFICATION. The death penalty imposed on them is
hereby REDUCED TO RECLUSION PERPETUA. They
are jointly and severally ORDERED to pay private
complainant CATALINA CALAYCAY, widow of the late
Antonio Calaycay, the sums of P131,000.00 as actual
damages, P240,000.00 for loss of earning capacity,
P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P25,000.00 as temperate damages and P50,000.00
as attorney’s fees, as well as the costs.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Vitug, Panganiban, Ynares-

Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ.,
concur.
Judgment affirmed with modification.
Note.—Alibi and denial cannot prevail over the positive

identification of the second as the perpetrator of the crime.
(People vs. Banela, 301 SCRA 84 [1999])
——o0o——
_______________
83 G.R. No. 123161, 18 June 2003, 404 SCRA 211.

84 Supra, note 80.
280
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1/16/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 420

VOL. 420, JANUARY 20, 2004 259

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO

Criminal Law; Robbery with Homicide; Evidence; As a rule,

Same; Same; Same; Denial and Alibi; Positive identification of

260 SUPREME COURT REPORTS ANNOTATED

People vs. Abes

and denial of appellants whose testimonies are not substantiated by

decide to commit it. Conspiracy as a mode of committing a crime

VOL. 420, JANUARY 20, 2004 261

People vs. Abes

tainable by the injured party, which usually means official or valid

AUTOMATIC REVIEW of a decision of the Regional Trial

The facts are stated in the opinion of the Court.

“ACCORDINGLY, finding all the accused (ANTONIO ABES y

hereby ordered, jointly and severally, to indemnify the private

The appellants in the present case were all long-time

1 Records, pp. 455-474.

262 SUPREME COURT REPORTS ANNOTATED

District. Their alleged victims, the late Antonio Calaycay

“That on or about the 20th day of March 1994 at around 7:30

1. Cash money amounting to P90,000.00;

then armed with the aforementioned deadly weapon and

3 Records, pp. 1-2.

VOL. 420, JANUARY 20, 2004 263

When arraigned, all of the appellants pleaded not guilty.

Before the Calaycay spouses could disembark from their

4 TSN, 26 October 1994, p. 13.

264 SUPREME COURT REPORTS ANNOTATED

it to Silvano, who then told his companions, “Hali kayo bilis,

At the trial, the appellants interposed the defense of

11 TSN, 19 April 1995, pp. 10-11.

VOL. 420, JANUARY 20, 2004 265

executed by at least fifteen (15) of his neighbors for the same

interment, they proceeded to the house of Reynaldo Silvano,

20 TSN, 29 January 1997, pp. 34-38.

266 SUPREME COURT REPORTS ANNOTATED

28 TSN, 18 November 1996, pp. 9-11.

VOL. 420, JANUARY 20, 2004 267

another thirty (30) days or until December 8, 2000, which we

36 Id., at pp. 108-110.

268 SUPREME COURT REPORTS ANNOTATED

On February 24, 2003, we resolved that “the copy of the

Per verification, the name JOSE L. SANENENG does not appear in

On May 6, 2003, we again resolved to require Atty.

VOL. 420, JANUARY 20, 2004 269

imposition of proper disciplinary action on counsel for the

THE TRIAL COURT ERRED IN FINDING ACCUSED-

THE TRIAL COURT LIKEWISE ERRED IN DISREGARDING

270 SUPREME COURT REPORTS ANNOTATED

ASSUMING THAT ACCUSED-APPELLANTS ANTONIO ABES

In his separate brief, appellant Bumagat assigns the

THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-

THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

In their brief, the brothers Saldo and Raul Ybañez assign as

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-

45 See Rollo, pp. 271-281.

VOL. 420, JANUARY 20, 2004 271

The assigned errors by the appellants present pertinent