[G.R. Nos. 78781-82. October 15, 1991.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PEDRO RAVELO, JERRY

RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE, HERMIE PAHIT AND JOSE RAVELO, Accused. PEDRO RAVELO,
BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE
AND HERMIE PAHIT, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Roberto J. Landas for Accused-Appellants.

DECISION

GUTIERREZ, JR., J.:

The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas
Guadalupe and Hermie Pahit appeal the two (2) judgments of the Regional Trial Court
of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one
Reynaldo Cabrera Gaurano and of frustrated murder of Joey Lugatiman.

In the murder case (Criminal Case No. 1187), each of the accused was sentenced to
serve the penalty of reclusion perpetua and to severally pay an indemnity of
P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case
No. 1194), each of them was sentenced to serve the penalty of imprisonment ranging
from eight (8) years and one (1) day of prision mayor as minimum to ten (10) years of
prision mayor as maximum.

The accused were all charged with kidnapping with murder and kidnapping with
frustrated murder. However, the trial court found accused-appellants guilty only of
murder and frustrated murder as convicted. The accused Jose Ravelo and Jerry Ravelo
are still at large.

The present petition was originally one that sought the issuance of a writ of habeas
corpus. The Court instead resolved to treat it as an appeal in view of the near capital
nature of the crimes for which the appellants were convicted.

The accused-appellants are all members of the Civilian Home Defense Force (CHDF)
stationed at a checkpoint near the airport at Awasian in Mabua, Tandag, Surigao del
Sur. The prosecution alleged that they stopped the two (2) victims for questioning on
the suspicion that the latter were insurgents or members of the New People’s Army
(NPA).chanrobles.com : virtual law library

In Criminal Case No. 1187, the accused-appellants were charged with having
committed kidnapping with murder in the following manner: jgc:chanrobles.com.ph

"That at approximately 6:30 o’clock in the evening, May 21, 1984, in Barangay Dawis,
San Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, PEDRO
RAVELO, JERRY RAVELO, BONIFACIO "Patyong" PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and
mutually helping each other did, then and there, wilfully, unlawfully and feloniously
take, pick-up, kidnap by means of force, one REYNALDO CABRERA GAURANO, a minor,
while the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur,
then the above-named accused carried away the said, Reynaldo Cabrera Gaurano to
barangay Awasian and detained, kept and locked him in a room at the house of Pedro
Ravelo, one of the accused herein, from 7:00 o’clock in the evening, May 21, 1984 to
4:00 o’clock dawn, May 22, 1984, or a period of 10 hours under restraint and against
the will of said minor, Reynaldo Cabrera Gaurano and that the above named accused
during the said period of kidnapping, maltreated and refused to release said Reynaldo
Cabrera Gaurano, and while on the same period of time at about 4:00 o’clock dawn,
May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction
of this Honorable Court, the above-named accused, Pedro Ravelo, Jerry Ravelo,
Bonifacio ‘Patyong’ Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and Jose
Ravelo, conspiring, confederating, and mutually helping each other, armed with a
pistol, armalites, and carbines, with intent to kill, with treachery and evident
premeditation did, then and there wilfully, unlawfully and feloniously, assault, attack,
cut, slash, and burn, the said Reynaldo Cabrera Gaurano, hitting and inflicting upon the
latter, the following wounds or injuries: chanrob1es virtual 1aw library

1. Blisters formation noted all over the body reddish in color, which easily peel off on
pressure; containing clear fluids with hemorrhagic reaction beneath blisters;

2. Swollen face with contusion and hematoma formation; loosening of hair notes; right
ear missing with circular incised wound around;

3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx,
arteries and veins; up to the 2nd cervical bone in depth;

4. Contusions and hematomas noted anterior chest wall, abdomen and at the back;
upper and lower extremities of different sizes end forms." (Rollo, pp. 8-9).

In Criminal Case No. 1194, they were charged with kidnapping with frustrated murder
committed as follows: jgc:chanrobles.com.ph

"That on or about 1:00 o’clock in the morning on May 22, 1984 in barangay Awasian,
municipality of Tandag, province of Surigao del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above named accused PEDRO RAVELO, HERMIE
PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO
AND JOSE RAVELO, conspiring, confederating and mutually aiding one another armed
with the deadly weapons such as pistols, armalite and carbine, did then and there
wilfully, unlawfully and feloniously by means of force and at gun point stop the hauler
truck of the South Sea Merchant Company which was on the way to Tandag, Surigao
del Sur from sitio Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao
del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by
forcibly taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo
then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while
thereat and in pursuance of their conspiracy, with intent to kill, with evident
premeditation and treachery and by taking advantage of their superior strength being
armed with deadly weapon did then and there wilfully, unlawfully and feloniously
assault, by hitting and inflicting upon the latter the following wounds or injuries.
chanrobles.com:cralaw:red

1. Small abrasion and hematoma, both wrist and left ankle;

2. Multiple small abrasions, chest and right neck and right ankle,

3. Multiple small abrasions and small hematoma, back;

4. Abrasion, upper left lips." (Rollo, pp. 18-19).

The trial court based its findings on evidence presented by the prosecution of the trial
proper which commenced several months after the informations were filed. The
prosecution evidence in Criminal Case No. 1187 are quoted from the judgment, thus: jgc:chanrobles.com.ph

"Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that
he knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas
Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a
certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc
to attend a dance. The dance not having began being too early yet, they decided to go
back to Dawis. On their way back while crossing the Tandag bridge across the Tandag
river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo
Aspirin, Hermie Pahit and Nicolas Guadalupe stopped them by pointing their guns. He
and Diego Gallardo ran away towards a group of old junk tractors and hid there. He saw
Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the
house of a certain Fernando Cortes which was just opposite the tractors they were
hiding, and which was just across the road in front of the house of Fernando Cortes.
Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla and
Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a waiting
pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo
Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo. All
the accused, together with Reynaldo Gaurano rode on the pick-up towards the Tandag
airport at Awasian. After Reynaldo Gaurano disappeared, he and Diego Gallardo went to
the police and reported the matter that Reynaldo Gaurano was brought by the accused
to the airport.

On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano
under a mango tree near the Tandag airport and pointed to the investigator that was
the body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck.
Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag,
Surigao del Sur in that morning of May 23, 1984.

Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that
he knew very well all the accused and that he personally saw them in the early dawn of
May 22, 1984. He declared that he was at the Awasian creek near a mango tree
catching crabs with the use of a ‘panggal’, a bamboo knitted trap. From a distance of
around twenty meters away, he saw a man hanging from the mango tree over a fire.
He saw the accused Jerry Ravelo placed fire on the hanging person and the accused
Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the
hanging person. The man hanging was not known to him. The man hanged was also
surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and
Bonifacio Padilla. For five minutes watching, he saw the clothing and body burned, he
heard the moanings of the person and heard the laughters of the accused. After
witnessing that horrible incident he went home hurriedly. On cross examination he
further stated that he saw for the first time the man already hanging under a fire (sic).

Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all
the accused are known to him for a long time. On May 21, 1984, with ten companions
they went to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five
hours stay, he, together with his companions left Maticdum past midnight for Tandag
on a logging truck. As soon as they passed by the airport, they were stopped by the
accused and were told to go down from the truck for questioning. He was brought to
the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was
Joey Lugatiman and if he knew Reynaldo Gaurano. There at the headquarters, he was
asked if he was an NPA. For almost an hour stay at the headquarters he was boxed,
kicked and manhandled by Pedro Ravelo and by the other accused with the use of their
guns until he became almost unconscious. Then, from the headquarters at Mabua on
that early dawn he was brought again back in the same pick-up to Awasian airport, to
the house of Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding
to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter away,
already weak with bruises on his face, hands tied at the back and with a gag around the
mouth, moving as if in the act of trying to free himself, with a bleeding mouth. When
he reached the house of Bonifacio Padilla, he was chained and tied to the wall near the
window of the house. Alone, he peeped through the window and saw Reynaldo Gaurano
hanging up the mango tree with fire below him. He heard the meaning of Reynolds
Gaurano while hanging from the mango tree thirty meters away from the window of the
house of Bonifacio Padilla. He saw Pedro Ravelo and Jose Ravelo set fire on the body of
Reynaldo Gaurano. At 5:00 o’clock a.m., May 22, 1984, when alone, after being told
that he would be killed at 9:00 o’clock in the evening at the Awasian bridge, he escaped
by being able to untie himself at 10:00 o’clock in the morning of May 22, 1984. He
reported what happened to him and to Reynaldo Gaurano, to his parents and then to
the police authorities and later submitted for physical examination on that day, May 22,
1984 in connection with this case. On cross examination he said that he knew all the
accused. He knew that all the accused are members of the CHDF. chanrobles virtual lawlibrary

Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified
that she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City
on April 12, 1984 for Tandag. On May 22, 1984 she received a telegram from her sister
Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of
the telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the
Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano
inside the coffin and she saw many parts of the body of her son with burns. She
suffered moral damages and other expenses to the tune of P64,350.00.

Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag
testified that Reynaldo Gaurano is her nephew because his mother Zosima is her
younger sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On May
20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go
home to the house of her sister. After the second day, May 22, 1984 at around 6:00
o’clock in the afternoon Edilberto Salazar and Diego Gallardo informed her that
Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was
relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the following day, May
23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo and
the nearby surroundings at Awasian. She was made to identify an exhumed body at the
back of the house of Pedro Ravelo near the mango tree. She saw the dead body of her
nephew Reynaldo Gaurano without an ear, the neck was almost cut, entire body with
blisters, and naked. His body was pictured and later on brought to the Mata Funeral
Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial
Hospital to conduct an autopsy and after which the dead body of Reynaldo Gaurano was
embalmed to await the arrival of the mother from Cebu City.

Witness Dr. Romeo delos Reyes, a senior resident physician of the Tandag Provincial
Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo
Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by
fire burns throughout; the body was reddish and skin peels off easily; swollen face,
hematoma, contusion, losing of hair, wound around the neck; and these injuries could
have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was
issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano
died.

Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a
photographer at Tandag, testified that he took the pictures of a dead man inside a hole
upon orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in
Exhibit "C" "C-1" ; he took 8 positions of the dead body. While yet inside the hole
exhibit "D" and as shown in Exhibits "E" and "F", that was the dead body of Reynaldo
Gaurano near the mango tree; Exhibit "G", while the cadaver was inside the hole and
Exhibit "H" is the picture while the body was lying on the mat.
chanrobles law library : red

Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified
that at around 8:00 o’clock in the morning of May 23, 1934, he was the assistant team
leader of the group that proceeded to Tambacan, Awasian, Tandag to look for and
inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango
tree and about 25 meters near the house of Bonifacio Padilla the group recovered a
P.25 coin, a small comb, two zippers and burned pieces of cloth and burned coconut
leaves, together with new excavated soil. Further search under the mango tree led to
the very place where the body of Reynaldo Gaurano was buried. At around 10:00
o’clock a.m., May 23, 1934, they exhumed the dead body which was buried under a
depth of around one meter under the mango tree which was around 25 meters from the
house of Bonifacio Padilla and around 150 meters from the house of Pedro Ravelo. The
cadaver was first identified to be that of Reynaldo Gaurano by Edilberto Salazar. A
photographer was called and pictures were taken of the dead body of Reynaldo
Gaurano from the hole and then the body was brought to the surface and placed on the
mat. Not one of the accused was present during the period while the group was
searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo Gaurano
shows signs of burns and several injuries, and was finally brought to the funeral parlor
at Tandag.

As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at
Awasian, Tandag, Surigao del Sur. His death was the result of the shock secondary to
the wound around the neck, Exhibit "A", and occurred while he was hanged by the
accused with hands tied to a branch of a mango tree. Sufferings of pains, through his
meaning, were augmented and aggravated by the tortures inflicted as vividly seen
through the removal of the right ear, the wound around the neck and placing of fires on
his body, and the fire below his feet. Not only were these acts brutal and cruel but also
heartless and savage acts of the accused, devoid of an iota of sympathy, who, instead,
were happy and delighted to see the miseries suffered by their victim. Further, it was
shown that they helped one another or conspired with one another in torturing with the
use of their firearms, and in killing Reynaldo Gaurano." (Rollo, pp. 10-16).

Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows: jgc:chanrobles.com.ph

"The evidence of the prosecution consisted of the testimonies of the witnesses and the
Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag,
Surigao del Sur testified that he personally knew all the accused for quite a long time.
On May 21, 1984 with ten companions he went to a place called Maticdum, Tandag,
Surigao del Sur. After staying at Maticdum for five hours he went home on board a
cargo truck. On the way near the Tandag Airport they were stopped by all the accused.
They, including himself, were ordered by the accused Pedro Ravelo to come down from
the truck. Then he was brought to the nearby house of Pedro Ravelo and there he was
asked if he was Joey Lugatiman and if he knows Reynaldo Gaurano.

His companions were ordered to proceed to Tandag while he was loaded on a service
pick up driven by the accused Pedro Ravelo. He was brought by all the accused to the
Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the
Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his
denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro
Ravelo and his co-accused. He was manhandled by the accused with the use of the
firearms for almost an hour. Later he was brought back again to Awasian Airport to the
house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But
before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano
one meter away, already weak with bruises on the face, hands, tied at the back and
gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the
act to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio
Padilla he was chained and hogtied near the open window by the companions of Pedro
Ravelo. Not long after, through the window, he saw Reynaldo Gaurano hanging up the
mango tree and a big fire was set on the ground. He heard the groaning and moaning
of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right
and left side of Reynaldo Gaurano with the use of dried coconut leaves. He saw all the
accused surrounding and watching the hanging and burning of Reynaldo Gaurano. It
was Pedro Ravelo who cut the right ear and who also slashed the neck of Reynaldo
Gaurano. He could not shout because he was afraid. While lying down after he saw the
horrible incident he fell asleep. At around 5:00 o’clock in the morning of May 22, 1984
he awoke and saw Bonifacio Padilla bringing nylon line with which he was tied to a piece
of wood; while Nicolas Guadalupe gagged him, and he was blind folded by Hermie
Pahit. While the three were about to leave him behind, he heard them saying that they
will kill him at the Awasian bridge at 9:00 o’clock in the evening of May 22, 1984. When
he was left alone in that house he successfully freed himself. He jumped out of the
window and escaped via the nipa palm grove. As consequences of the manhandling of
the accused, he suffered several bruises on the breast, at the back and his mouth. He
was physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A",
"A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross
examination, he testified that he escaped at around 10:00 o’clock in the morning from
the house of Bonifacio Padilla, and that he knew all the accused to be members of the
Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and
the house of Bonifacio Padilla are around one hundred (100) meters away from each
other.

Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial
Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical
certificate, Exhibit "A." All her findings were placed down in Exhibit "A." Upon being
cross-examined, she testified that the hematomas, small abrasions will not cause
death. When she examined Joey Lugatiman, she found that he was weak and haggard
caused by the injuries mentioned in Exhibit "A."  cralawnad

Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified
that while he was tendering his carabao near the house of Bonifacio Padilla he was
surprised to see Joey Lugatiman, wearing blue T-shirt and a jogging pants jumped out
of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw
Joey Lugatiman ran towards the nipa palm then ran towards the airport. He knew Joey
Lugatiman because during the barrio fiesta Joey used to stay in his house at Awasian.

Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on
May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio
Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper
from 5:00 o’clock in the afternoon and started to go home at around 11:00 o’clock p.m.
for Tandag. On the way, near the airport, he, together with his companions on a
logging truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo,
Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were
ordered to come down and were made to identify each other. He saw Bonifacio Padilla
dragged Joey Lugatiman to the house of Pedro Ravelo. It was Pedro Ravelo who later
brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except
Joey Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused
Bonifacio Padilla ordered the group to proceed to Tandag while Joey Lugatiman was left
behind. He reported to the police authorities that his companion Joey Lugatiman was
being held under arrest at Awasian and that he knows all the accused before this
incident." (Rollo, pp. 21-24).

The accused-appellants were not able to or did not present evidence on their behalf,
nor were they themselves able to confront the prosecution witnesses who testified
against them except through a counsel de oficio appointed by the trial judge to
represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in
place of their defense counsel, Atty. Eliseo Cruz.

The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made
requests for postponements by telegrams stating his inability to appear for health
reasons, led to the refusal by the accused-appellants to be present at the trial. The
accused-appellants alleged that Atty. Cruz left an instruction that they will not submit
themselves to trial without him.
The accused-appellants now maintain that they did not "waive" their right to be present
during the trial because their refusal was not done by their own free will but only in
accordance with their lawyer’s instructions.

The Court notes that Atty. Cruz resorted to several other delaying tactics aside from
sending telegraphic notes requesting for postponements. He filed a petition for change
of place of detention and venue for trial before this Court, which denied it; a first
petition for habeas corpus on the ground that they should be tried by a military
tribunal, which petition was denied; and a motion for new trial on the ground of lack of
due process due to improper waiver of presence at the trial. This motion for new trial
was granted to give the accused-appellants a last chance to be heard and be present.
Still, the defense counsel failed to appear and so did the appellants.

In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz
failed to file the required brief. The Court then appointed a new counsel de oficio for
the Accused-Appellants.

Accused-appellants raised the following alleged errors of the trial court: chanrob1es virtual 1aw library

THE LOWER COURT’S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF

FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW.

II

THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED

THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO
PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144)

It is contended that there can be no frustrated murder committed in Criminal Case No.
1194 absent any proof of intent to kill, which is an essential element of the offense of
frustrated murder.

Appellants aver that the trial court erroneously based its conclusion on the fact that
when Lugatiman was tied and gagged, the latter heard one of the accused-appellants
utter that they would kill him at Awasian bridge.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

The trial court made the following inference which we find to be erroneous: jgc:chanrobles.com.ph

"To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in
the morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie
Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged
him; and when the accused said they will kill him (Joey Lugatiman) at 9:00 o’clock p.m.
at Awasian bridge. These final and parting words uttered to Joey Lugatiman eloquently
expressed intent to kill. Killing, however, was not consummated because Joey
Lugatiman was able to escape at around 10:00 o’clock in the morning of May 22,
1984." (Rollo, p. 25)
The facts and evidence on record do not show anything from which intent to kill could
be deduced to warrant a conviction for frustrated murder. A mere statement by the
accused stating that Lugatiman would be killed is not sufficient proof of intent to kill to
convict a person of frustrated murder.

In a crime of murder or an attempt or frustration thereof, the offender must have the
intent or the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be
manifested by external acts. For there to be frustrated murder, the offender must
perform all the acts of execution that would produce the felony as a consequence, but
the felony is not thereby produced by reason of causes independent of the will of the
perpetrator. A verbal expression that Lugatiman would be killed sixteen (16) hours
after such statement was made is not sufficient to show an actual design to perpetrate
the act. Intent must be shown not only by a statement by the aggressor of the purpose
to kill, but also by the execution of all acts and the use of means necessary to deliver a
fatal blow while the victim is not placed in a position to defend himself. However, after
the performance of the last act necessary, or after the subjective phase of the criminal
act was passed, the crime is not produced by reason of forces outside of the will of the
aggressor. (People v. Borinaga, 55 Phil., 433 [1930]).

Tying the victim’s left leg with a chain on a 2" by 3" piece of wood and leaving him
inside the house of accused-appellant, Bonifacio Padilla are not acts that would result in
death. These were done only to restrain his liberty of movement for the period of time
the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano
some thirty (30) meters away from where Lugatiman was left. Also, tying Lugatiman’s
hands behind his back and his whole body to the wall, and blindfolding him were for the
purpose of restraining his liberty until the evening of May 22, 1984 came.

Accused-appellants also maintain that the injuries sustained by Lugatiman from the
manhandling at the Headquarters of the Airborne Company were not fatal as stated by
the prosecution’s expert witness, Dr. Petronila Montero; hence, there can be no
frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal
Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose
consciousness as a result of the blows he sustained. (TSN, May 31, 1985, p. 49,
Record, p. 115).

It is worthy to note that the trial court, in concluding the existence of frustrated
murder, did not even use as its basis, the manhandling of Lugatiman. The trial court in
fact concedes that the real purpose of the manhandling or torture was to have
Lugatiman admit and confess his being a member of the New People’s Army (NPA) and
the activities of the NPA’s. It was the statement made by the accused-appellant Nicolas
Guadalupe that Lugatiman would later be killed, that was the basis of the court for
inferring the commission of frustrated murder. According to the trial court, murder was
not committed because of the timely escape. Escape from the aggressors cannot
establish frustrated murder without first showing that the aggressors intended to kill
and that they really attacked the victim.

Under the circumstances, Accused-appellants could not even be convicted of an attempt

to commit murder. There was no commencement of the criminal act by overt acts
which have a direct connection with the crime of murder intended to be committed. As
stated earlier the manhandling, express statement of purpose, and the restraint of
liberty were not such as to put the victim in danger of an imminent death. The small
abrasions and hematomas of the victim resulting from the torture by the accused were
not mortal. After the victim was restrained of his liberty immediately before Gaurano
was killed, he was able to watch how Gaurano was burned hanging upside down from a
mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was
even able to lie down and sleep after looking at the horrible incident. (TSN, May 31,
1985, pp. 22-23)

During the long period of time Lugatiman was informed that "he would be killed" and
was left behind (5:00 in the morning) until he was able to escape at 10:00 in the
morning, it was not certain whether or not appellants would really kill him as they did
to Gaurano. Anything could have happened in between. There was no distinct evidence
to prove that the accused appellants were really decided on killing him at the time
specified.chanrobles virtual lawlibrary

The records show that Lugatiman himself was not sure that the accused-appellants
would pursue it.

The uncertainty can be seen from Lugatiman’s testimony on cross-examination, thus:

library
chanrob1es virtual 1aw

x          x           x

Q Why did you say a while ago that ‘I will be the next one to be hung and to be killed
by Ravelo and his group’?

A I was just afraid that I will be the next.

Q Now, when you saw these persons burning the body of Reynaldo, did you hear also
what the people around Reynaldo were talking of?

A What I heard was their laughing and the moaning.

Q And you heard their laughing?

A Yes.

Q Why did you know that they were laughing?

A Because I heard it.

Q Their appearance you can see?

A Their appearance is clear because there is a big light.

Q And your name was never mentioned that you will be the next to be hung?

A I did not hear them saying.

Q There were also no other people like you who were apprehended or being detained by
Pedro Ravelo and his group?

A I did not see.

Q You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group
on May 21, in the early morning rather, on May 22, 1984 dawn?

A Yes." (TSN, May 31, 1985, pp. 54-55).

After a review of the allegations of the information in Criminal Case No. 1194 and the
evidence received and admitted by the court a quo, the Court is of the view that
accused-appellants are not guilty of frustrated murder but only the crime of slight
physical injuries. There is evidence to show that the several small abrasions on the
chest, right neck and right ankle of Lugatiman as well as the hematoma at his back was
due to the hitting by a rough, hard object like a butt of a gun. The prosecution witness,
Dr. Montero testified that the injuries were inflicted by some other persons aside from
the victim, and needed medical treatment of four (4) to five (5) days to avoid infection.
(TSN, June 4, 1985, pp. 21-26)

Accused-appellants aver that there was no deliberate waiver on their part of their right
to be present at the scheduled hearing dated because they "did not appear to know the
import of their decision not to appear in the trials." According to them, the judge should
have explained to them the meaning and the consequences of their decision not to
appear.

The issue of due process had been dully considered by this Court when we acted on
the habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the
reasons for our finding of dilatory tactics on the part of the petitioners and their counsel
and why the lower court correctly proceeded with trial. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

After stating the various incidents characterizing the initial proceedings and the trial of
the case, we stated: chanrob1es virtual 1aw library

x          x           x

"The petitioners are members of the Civilian Home Defense Force (CHDF) who have
been convicted of murder and frustrated murder committed under particularly brutal
circumstances. A notice of appeal was filed thirty-nine (39) days from the promulgation
of judgment and was clearly out of time. A motion for new trial was also characterized
by plainly dilatory tactics in its handling.

"Were it not for the effectivity of the present Constitution, there is a likelihood that the
petitioners would have been sentenced to capital punishment. The near-capital nature
of the crimes for which the petitioners were convicted and the rather unusual
circumstances surrounding the trial of the two cases and the failure to appeal, however,
call for a closer look at the judgments of conviction. This can best be done by calling for
all the records of the case including the transcripts of stenographic notes. If, after the
consideration of the cases as appealed cases, there appears to have been a miscarriage
of justice or a need for further evidence, the case can always be remanded for further
proceedings as instructed. Otherwise, the judgment will have to be affirmed or reversed
on the basis of all the present records." (Rollo, p. 73)

For purposes of this decision, we emphasize that in the morning of May 30, 1985, the
date of the first day of the trial proper, or after five (5) postponements, the accused-
appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz
allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a
vehicular accident and requesting a resetting of the hearing date. The several instances
in which the Court received similar telegrams including one where he claimed a "very
sick heart ailment" led the trial court to doubt and disregard the last request of the
defense. The court had earlier categorically stated that it would entertain no further
requests for postponement.

The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30,
1988 and in appointing two (2) counsel de oficio for the accused-appellants did not only
consider the right of the accused to speedy trial which should not be abused by the
defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos,
66 Phil. 215 [1938]). Despite their new counsel who appeared to be doing their best,
the accused-appellants insisted on absenting themselves stating that they cannot and
would not appear without Atty. Cruz and allegedly for fear that they would be harassed
by members of the New People’s Army. At this point, the Court informed them of (1)
the importance of the appointment of competent counsel de oficio considering the
gravity of the offense and the difficulty of the questions that may arise during the trial;
and (2) the fact that there is no legal obstacle to proceeding with the reception of
prosecution evidence in their absence.

Absence at the trial did not deprive the accused-appellants of cross-examination except
the right to personally confront the prosecution witnesses face to face. Notwithstanding
their absence, they were represented by the counsel de oficio who took turns in cross-
examining each of the prosecution witnesses.

Accused-appellants also maintain that they did not actually refuse to present evidence
on their behalf. They argued that the counsel de oficio misapprehended a telegram of
Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985
trial because he had a prior engagement in another court in Ilocos Sur on those dates.
They also contend that their failure to appear and present evidence was "simply
because of their misplaced trust and obedience to the instructions of their counsel, Atty.
Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite
the seriousness of the crimes charged, had caused injustice to the Accused-Appellants.’
They ask this Court to take their case as an exception to the rule that a client shall
suffer the consequences of negligence or incompetence of his counsel. chanrobles.com:cralaw:red

The actual desire of the accused-appellants to testify and present other evidence is not
manifest from a thorough review of the records of the case. It were true that they
wanted to present evidence, they should have taken advantage of the opportunity to be
present, to be heard and to testify in open court with the assistance of their appointed
lawyers. As a matter of fact, they were able to convince the lower court to grant them a
chance to have a new trial. However, they still failed to make use of their last
opportunity. They cannot now claim that they were denied their right to be present and
to present evidence. This Court upholds the lower court’s position that the accused-
appellants were given more than generous time and opportunity to exercise their
constitutional rights which should not be overemphasized at the expense of public
policy.

The circumstances of the case do not preclude the application of the rule that a client is
bound by the acts of his counsel who represents him. Nevertheless, at the time when
the lower court appointed the de oficio counsel, the court already had ample notice of
the futility of waiting for Atty. Cruz to come and appear for the defense. From the time
the accused-appellants were represented by Atty. Montenegro and Atty. Cuartero, their
decision not to attend the trial nor to present evidence is clearly a product of their own
free will.

WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are
hereby, respectively, affirmed and modified as to the crime proven. The accused-
appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced: cralawnad

(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of
FIFTY THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and

(2) To serve the penalty of arresto menor in Criminal Case No. 1194.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.