This is an automatic appeal from a decision of the Circuit Criminal Court, Seventh Judicial District in Criminal Case No. CCC-VII-922 Rizal, dated October 11, 1971, the dispositive part of which reads as follows:

"WHEREFORE, finding the accused Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, GUILTY, beyond reasonable doubt of the crime of Kidnapping with Murder as defined under Article 248 of the Revised Penal Code, in relation to Article 267 thereof, as charged in the Information, the Court hereby sentences each one of them to suffer the penalty of DEATH; to indemnity the heirs of the deceased Henry Chua, the amount of P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages jointly and severally; and to pay their proportionate share of the costs."^[1]

The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against (1) Benjamin Ong y Kho, (2) Bienvenido Quintos y Sumaljag, (3) Fernando Tan, alias, "Oscar Tan," and (4) Baldomero Ambrosio alias "Val", the latter two being then at large, reads:

That on or about April 23 to April 24, 1971, inclusive, in the municipality of Parañaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then private individuals, conspiring and confederating together and mutually helping one another did then and there wilfully, unlawfully and with treachery and known premeditation and for the purpose of killing one Henry Chua and thereafter extorting money from his family through the use of a ransom note, kidnap(ped) and carry(ied) away said Henry Chua, initially by means of a friendly gesture and later through the use of force, in an automobile, and later after having taken him to an uninhabited place in Caloocan City, with the use of force detained him (Henry Chua) and killed) him in the following manner to wit:  The accused after gagging and tying up Henry Chua and repeatedly threatening him with death, assured him that if he would write and sign a ransom note for the payment by his family of the sum of $50,000.00 (US), he would not be killed and would be released upon receipt of the ransom money, but after said Henry Chua agreed and did execute such a ransom note, he was again gagged and tied up by the accused, and thereafter stabbed in the abdominal region, several times with an icepick, inflicting upon him (Henry Chua) mortal wounds on his vital organs, which directly caused his death.

"All contrary to law with the following generic aggravating circumstances:

(a)    Evident premeditation;
(b)    Grave abuse of confidence;
(c)    Nighttime;
(d)    Use of a motor vehicle;
(e)    Use of superior strength; and
(f)    Cruelty."^[2]

Personal Circumstances of the Two Appellants
At the time of the trial before the lower court in September of 1971, the accused Benjamin Ong was 31 years old, employed with the Acme Shoes, Rubber and Plastic Corporation, a firm owned by his brother-in-law, Chua Pak, for the past 11 years, the last 6 of which was as an assistant manager.  He was already receiving a monthly salary of P1,800.00 excluding yearly bonuses of P30,000.00 and other representation allowances or a total annual income of from P60,000.00 to P70,000.00.  He had his elementary schooling at the Assumption Academy in San Fernando, Pampanga; his first and second years of high school at Chiang Kai-shek High School in Manila; and his third and fourth years at the Mapua Institute of Technology.  He was a third year Commerce student, majoring in accounting at the University of the East, when he quit schooling in 1959.  He married Athena Caw Siu Tee Ong on November 25, 1962 at the St. Jude Catholic Church, by whom he already had four children:  Connie Louis, 7 years old; Dennis, 5 years old; Edgar, 3 years old; and Fanny, 1 year old.^[3]

On the other hand, accused Bienvenido Quintos was 39 years old, single, an unlicensed surveyor and computer for two years already at the Robes Francisco Realty Corporation with a relatively "small" income.  He was a third year engineering student when he stopped studying.  In 1954 he was charged of Resisting Arrest and Assault Upon an Agent in Authority but this case was settled amicably.^[4]

Brief Synopsis of the Testimony of the Prosecution's Witnesses
The prosecution presented several witnesses to prove its charge of kidnapping with murder.  First to testify was Patrolman Marciano Roque of the Crime against Property Division of the Detective Bureau of the Caloocan City Police Department who declared that:  He knew Benjamin Ong for about 6 years already because he usually investigated theft and robbery cases at the Acme Firm and at times received some money from Ong.  In a series of 6 meetings with Benjamin Ong starting from the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000; that he would ask for money from the latter's parents; and that after which, he would kill the victim.  Benjamin Ong's determination was shown when his godson was even introduced to him as one who would help him.  Benjamin Ong brought him to Barrio Makatipo in Novaliches, Caloocan City and described it as a suitable place where to bring the victim.  Ong also told him that he had acquired a bag, flashlight and a piece of cloth.  He was prevailed upon by Banjamin Ong to participate in his plan assuring that he could resign from the government service once the money is collected.  Patrolman Roque revealed this plan to his Division Chief, Capt. Duenas, the Officer-in-Charge, Lt. Manapat, and the Chief of Police, Celestino Rosca.  However, the three did not believe that Benjamin Ong had the guts to do it.  After the incident, Patrolman Roque said that he and Police Chief Rosca met with Atty. Nestor Gonzales of the National Bureau of Investigation to supply the early leads in this case although they did not find a trace of the crime when they went to Barrio Makatipo.^[5]

Miss Ligaya Tamayo testified next.  She declared that:  She worked as an entertainer at the Wigwam Nightclub in Parañaque, Rizal and knew Henry Chua very well.  At around 1:30 o'clock in the early morning of April 24, 1971, she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their guests.  The two talked in Chinese and had some drinks.  Benjamin Ong showed her a check in favor of Henry Chua which he claimed that the latter won in a gambling game.  She, however, did not actually see him give it.  At around 1:30 that same morning, she accompanied the two to the door and saw them leave the place and ride in a Mustang car.^[6]

Sy Yap, older brother of Henry Chua, was the third witness.  He testified that:  He was with Atty. Nestor Gonzales and other agents of the NBI on September 2, 1971 in Barrio Makatipo after Benjamin Ong pinpointed the place of burial, and there he saw the decomposing body of the victim under the ground, immersed in water.  He saw and identified the following personal effects found with the body:  a white gold watch which stopped at the hour of 6:22 and date of "24"; Driver's License No. 32219 with the name of Sy Sing Biok alias Henry Chua; Diner's card Diner Group 0004149-1; pass issued by the Bureau of Customs for Henry Chua dated January 19, 1971; receipt for payment of the license of the car; residence certificate; lighter; wallet; currencies in different denominations; shirt jacket; pair of shoes; socks; brief; undershirt; T-shirt; and trousers with a mark "Especially tailored for Henry Chua, 2-2-71, No. 95812."^[7]

Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI, appeared as the fourth witness.  He testified on his post mortem examination made on September 2, 1971 at La Funeraria Paz, of the deceased Henry Chua, 31 years old, single, and on his necropsy report, Exhibit "M".  He said that the deceased sustained two wounds on the liver and large intestine caused by a long pointed cylindrical instrument similar to an icepick.  He added that most likely, the assailant was in front of and on a higher level than the victim.  Although this did not appear in his report, he theorized that the two wounds were not the immediate cause of death since there was only a slight degree of hemorrhage in the vicinity of the punctured wounds.  He said that the liver and large intestine had no sufficient time to bleed because something else must have happened which was the asphyxiation or suffocation of the victim due to his burial.^[8] He stated, however, in his necropsy report, Exhibit "M", that the cause of death of the deceased was "punctured wounds of the abdomen."

Miss Clarita Teh, travel agent of Skyways Travel Service located at Ongpin St., Sta. Cruz, Manila, declared that:  At about 4:00 p.m. of April 22, 1971, Benjamin Ong called her up by phone to ask for a reservation ticket for Hongkong and Taipei.  On the morning of April 23, 1971, Benjamin Ong went to her office but forgot to bring along his papers including his Alien Certificate of Registration.  In the afternoon of April 24, 1971, Benjamin Ong went back to the office, this time with the pertinent papers plus P4,000 cash.  She said that he changed his destination from that of Hongkong and Taipei to that of Canada.  However, he needed P7,000 for this purpose.  On April 29, 1971, Mrs. Ong got back the P4,000 because the latter said that her husband did not have enough money.^[9]

Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan, followed next on the witness stand.  He stated that on April 25, 1971, he was on his tour of duty from 4:00 o'clock to 8:00 o'clock a.m. at the poblacion when he received information that an unidentified car was parked in a gasoline station.  He therefore sought the company of Patrolman Ceferino Castro and they went to Barrio Tibag where they saw the locked Mustang car parked in a gasoline station with plate number 16-02B, L-P.C., series '71.  They reported the matter to their head, Lt. Herminio Angeles.^[10]

Severo "Boy" Roslin, mechanic, gave the next testimony.  He knew Fernando Tan since 1965.  On April 29, 1971, early morning, he saw Fernando Tan and another, introduced to him as Alfredo Hernandez, who happened to be Banjamin Ong.  Fernando Tan requested him to bring them to the airport and obtain airplane seats for the Visayas.  He accompanied them but they failed in this endeavor so that they proceeded to the pier.  Likewise, they were frustrated in getting a passage to the South.  They ended up taking a train ride to Lucena City.  Roslin said that he went back to Manila that same day.  On May 1, 1971, he and Fernando Tan went to the house of Bienvenido Quintos near Abad Santos St. in Manila.  They did not see him so that they had to come back at noon.  They then took him with them and, after passing by a laundry shop, they went to Singalong where they picked up Benjamin Ong at around 7:00 p.m. Roslin claimed that they were using his Chevy car.  They went to Barrio Balugo, Oas, Albay and stayed at his parent's house.  He, Quintos, and Tan stayed there for one half month where they took themselves into swimming at the river.  They left Benjamin Ong there.^[11]

Enrique Lacanilao, an NBI agent, testified that:  Exhibits "N" and "O" are the voluntary written statements signed respectively by Benjamin Ong on September 1, 1971 and by Bienvenido Quintos on September 3, 1971.  He said that Benjamin Ong pinpointed to them the place of burial at Barrio Makatipo, and Sy Yap was with them during the examination.  They found the mouth of the victim gagged and his hands tied.  It was in a state of decomposition.  The victim's body was facing downward with the buttocks protruding up.  The hands were tied just above the chest while the feet were far apart.  The buttocks were one foot from the surface while the face was one and a half feet below facing down.  There were no houses in the area which he believed was the Araneta subdivision.  He directed the reenactment of the crime.  It appeared in their reenactment that Fernando Tan and Bienvenido Quintos were the ones who grabbed Henry Chua from his Mustang car when Benjamin Ong was urinating; that the victim's mouth was gagged while his hands were tied at the back; that during the making of the ransom note, Tan was holding the gun while Quintos was focusing the flashlight; that afterwards, Henry Chua's hands were tied again, this time in front; that he was stabbed after he was made to lie down facing up; that Baldomero Ambrosio and Bienvenido Quintos pulled the victim to the hole; that Baldomero Ambrosio shovelled while Bienvenido Quintos held the flashlight; that at the time the ransom note was being prepared Benjamin Ong was near the car, about 50 meters from the hole, so that his person did not appear in the picture of the reenactment of this portion.  Benjamin Ong was taken by the NBI into custody from the 2nd PC Zone on September 1, 1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that same night, his written testimony was taken down up to past 12:00 midnight.  He had a small bandage around his wrist because of an attempted suicide on his part.  Bienvenido Quintos, on the other hand, he said, was arrested on September 3, 1971 and his extrajudicial statement was taken on the same day at around 7:00 or 8:00 p.m.^[12]

Diego H. Gutierrez, also an NBI agent, testified last for the prosecution.  He identified Exhibits "Q" and "R" as the voluntary supplementary extrajudicial statements respectively of Bienvenido Quintos and Benjamin Ong.  Gutierrez' testimony focused on Bienvenido Quintos' admission that the hole was dug and covered with fresh twigs after the group's second meeting at the Barrio Fiesta Restaurant.^[13]

Brief Synopsis of the Testimony of the Witnesses for the Defense
The defense started the presentation of their evidence with the testimony of Dr. Mariano P. Lara, retired Chief Medico-Legal Officer of the Manila Police Department.  His testimony centered on the matter of asphyxiation.  He said that asphyxiation as the possible cause of death was nowhere reflected on the necropsy report of Dr. Ibarrola of the NBI; and that the death of the victim could have been due to shock as a result of the wounds inflicted on him.^[14]

Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then testified.  He said that he went to the NBI on September 8, 1971 in order to follow up the clearance papers of his deceased father.  By coincidence, he discovered that Quintos was detained there, so, he tried to get in touch with him.  He gathered that Quintos was "okay" although later on the latter revealed that he was hurt also.

Artemio R. Quintos an engineer and father of accused Bienvenido Quintos, followed next.  He said that he visited his son on September 3, 1971 along with Atty. Bonicilla at around 7:00 p.m. at the NBI.  The guard refused to tell him where his son was so that the following day, September 4, he went back to the NBI in the morning as well as in the evening.  Still he did not find his son.  On September 5, he delivered clothes for the use of his son to the jailer, Benjamin Laforteza, and was issued a receipt therefor.  On September 6, he brought a letter addressed to the Director of the NBI requesting him that he be allowed to see his son.  It was only on September 7, at 4:00 p.m. he claimed, that he met his son.  He said that Bienvenido Quintos showed to him his stomach with some bluish discoloration at the navel.  On that day, he also received his son's dirty clothes and found bloodstains on it.^[15]

Bienvenido Quintos then took the witness stand.  He revealed that he came to know Fernando Tan when they were still in Dagupan City long time ago.  He said that he was invited on April 23, 1971 by Fernando Tan and that they met at around 7:00 p.m. of that day.  They proceeded to the Barrio Fiesta Restaurant in Caloocan City where he was introduced to Benjamin Ong and Baldomero Ambrosio for the first time.  At 9:00 p.m., they went to Brown Derby Supper Club in Quezon City after which they proceeded to Amihan Nightclub at around 10:30 p.m. at Roxas Boulevard.  He, Fernando Tan, and Baldomero Ambrosio were left in the car.  Later, Benjamin Ong went out of the Amihan Nightclub and took Fernando Tan with him.  Fernando Tan returned and after a while he was invited to the nearby Wigwam Nightclub.  They hurriedly left the place and Fernando Tan took the front seat of the Biscayne car while he took the back seat and followed a certain car.  When that car stopped, he saw Benjamin Ong vomitting.  Fernando Tan and Baldomero Ambrosio went down and Fernando Tan pulled out his gun.  The victim was dragged and forced into the rear part of their car.  The victim's hands and feet were tied by Baldomero Ambrosio while the mouth was gagged by Fernando Tan with a flannel cloth.  Bienvenido Quintos made clear in his testimony that the victim was lying on his back inside the car so that his face was up and his hands were on his breast.  Fernando Tan then threatened him with his gun should he not cooperate with them.  At Barrio Makatipo, the victim laid down on the ground and Benjamin Ong got the shovel and flashlight and gave them to Fernando Tan.  The victim was made to walk a little distance and then lie down again face up.  Benjamin Ong gave to Fernando Tan an icepick who then gave it to Baldomero Ambrosio and in turn gave it to him.  He refused to stab the Victim so that he returned it to Fernando Tan who made the actual stabbing on the victim's chest twice:  According to him, there was already a hole in that place.  He also claimed that Exhibit "O" was not a voluntary statement of his and that he was maltreated by more or less 5 men.  He said that he went to Oas, Albay on May 1, 1971 but that he was never contacted by the group between April 24; and 30.  At a certain point during the proceedings, the court suspended his testimony for about 15 minutes after he complained of an aching head.^[16]

Benjamin Ong testified last for the defense.  He related that Henry Chua was a friend and that they were slightly related to each other.  He felt that he was cheated because he was the only one who continuously lost in their mahjong sessions.  Henry Chua's group, including Ko King Pin, Go Bon Kin and Marcelo Tanlimco, went to his office and humiliated him there.  On April 21, 1971, Henry Chua called him up by phone and invited him to the Amihan Nightclub where he could settle the gambling debt.  He admitted responsibility for Henry Chua's death but emphasized that his purpose was merely to kill him.  He added that nothing was taken from the body of the victim.  He asked the assistance of Fernando Tan and Baldomero Ambrosio who merely drove the car.  He denied the testimony of Patrolman Marciano Roque regarding his revelation of his plan.  He believed that Henry Chua knew that he had a grudge against him during that fatal day.  He waited for them to dig and cover the hole which took about one hour and a half after the stabbing.  He attempted suicide by slashing his wrist 7 or 8 times while he was still in the custody of the P.C. at Camp Vicente Lim in Laguna.  He was also brought by the NBI to the Salem Motel where he was investigated from 8:30 in the evening up to 5:30 in the morning of the next day.  Exhibit "N", his extrajudicial statement, was taken while he was groggy and very weak.  He likewise pinpointed the grave.  At a certain juncture during Benjamin Ong's testimony, his counsel sought the court's permission to exclude the public from the hearing because Ong's wife would testify on something that would constitute a "great shame" to their family.  Benjamin Ong, however, refused to go ahead with said testimony.  Benjamin Ong further claimed that he decided to kill Henry Chua on April 22, 1971.  He was hurt by the threatening words on the part of the victim which humiliated him and, as such, he was forced to resign from his job.  He went to the Skyways Travel Service only after the incident.  He, however, changed his destination and wanted to go instead to Canada and Europe.  The reason why he was not able to pursue his departure was because Sy Yap called him up and asked him about his brother's whereabouts so that he seriously felt that the authorities were already after him.  He left Manila on April 29, 1971 and went to Legaspi City with Fernando Tan but found no acquaintance there so that they went back to Manila.  It was Fernando Tan who contacted Boy Roslin and Bienvenido Quintos after which they went to Oas, Albay and stayed there for about two to three days.  He hid himself on top of the mountain with an old man.  Furthermore, he said that Henry Chua was aware that he resented him.  Benjamin Ong likewise denied having called Fernando Tan at anytime, to come in with him to the nightclub.^[17]

Non-Conflicting Facts

Non-conflicting facts, as shown in the testimonies of the accused and witnesses in open court, and reiterated in the respective briefs of the parties, are as follows:  For more or less one year and a half prior to the dreadful incident, the accused Benjamin Ong used to play mahjong with the deceased Henry Chua and the latter's companions, Ko King Pin, Go Bon Kim and Marcelo Tanlimco.  In those sessions, he lost substantially that at one time, it amounted to as much as P150,000.00 He suspected that he lost in unfair games and was completely cheated by Henry Chua and the latter's companions, who made things worse by pressing him to pay his gambling debt with a threat of bodily harm upon his person and that of his family.  The deceased and his companions embarrassed Benjamin Ong, incident after incident, especially when they went time and again to Benjamin Ong's office at the Acme Shoes, Rubber and Plastic Corporation to confront him.  The extent of his embarrassment was made manifest by the fact that he had to resign from his job.

On April 21, 1971, Henry Chua repeated his demands for early settlement of his gambling debt and, as such, invited Benjamin Ong to see him on April 23, 1971 at the Amihan Nightclub and bring with him the money owed (P150,000.00).  That same day that Henry Chua phoned Benjamin Ong, the latter contacted and sought the assistance of Fernando Tan, a technical supervisor also of the Acme Firm.  Benjamin Ong told Fernando Tan about his grudge and plans against Henry Chua in order to avenge the embarrassment and humiliation he suffered before the eyes of his subordinates.

Fernando Tan, who incidentally, owed Benjamin Ong his job,^[18] was very accommodating and he shared Ong's feelings against Henry Chua.  And, according to Benjamin Ong, Tan said "Why not just kill him."^[19] Tan immediately contacted Baldomero Ambrosio, Benjamin Ong's godson in marriage and a former Acme employee, and likewise called upon his boyhood friend Bienvenido Quintos at the latter's office at the Robes Francisco Realty Corporation.

On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan City and finalized their plan to liquidate Henry Chua.  The group, riding in Benjamin Ong's Biscayne car; then went to the Amihan Nightclub and arrived there at past nine o'clock in the evening.  The two, Benjamin Ong and Henry Chua met there and had a couple of drinks.  Benjamin Ong asked for patience and leniency with regard to his indebtedness and ample time for its settlement.

From the Amihan the two went to the nearby Wigwam Nightclub where they tabled two hostesses, Ligaya Tamayo and Mickie Yaro and had some more drinks.  At around 1:30 a.m. of the following day, April 24, 1971, the duo left the place and rode in Henry's Mustang car.  Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio, riding in Ong's Biscayne car, followed the couple down Roxas Boulevard, then to Quiapo and Quezon Boulevard Extension in Quezon City where, after passing the Sto Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue.  When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car in order to urinate, to which the latter obliged.  It was at this time that the Biscayne car arrived and stopped in front of the Mustang car whereupon Fernando Tan and Baldomero Ambrosio alighted with a flashlight and pretended to be policemen.  Fernando Tan poked his gun at Henry Chua and pulled him down from his Mustang car with Baldomero Ambrosio giving him help.  They then guided and forced him inside the rear part of the Biscayne.  He was made to lie, face up.  His hands were tied and his mouth gagged with a flannel cloth.  Fernando Tan and Bienvenido Quintos then rested their feet on him.  Baldomero Ambrosio drove the Biscayne while Benjamin Ong drove the Mustang and followed them from behind.

The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los Santos Avenue, right to the North Diversion Road, and right again to Novaliches until they reached a deserted place that looked like an idle subdivision in Barrio Makatipo, Novaliches, Caloocan City.  It was here that Henry Chua was stabbed twice with an icepick, allegedly by Fernando Tan, and buried there with all his belongings with him consisting of a Piagot watch, lighter, wallet containing P50 bills, driver's license, diner's card, etc.

After this, the group proceeded to Barrio Tibag, Balivag, Bulacan with Benjamin Ong and Fernando Tan on the Mustang.  There they left it locked near a gasoline station.  The foursome then regrouped in the Biscayne and proceeded back to Caloocan City where they separated at about 7:00 o'clock in the morning.

On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin Ong was arrested by operatives of the 2nd PC Zone and later turned over to the NBI.  On the other hand, Bienvenido Quintos was apprehended on September 2, 1971 in his residence at Tayabas St., in Sta. Cruz, Manila by members of the MPD and later turned over to the NBI also.

Important Points of Conflict
The prosecution adds more to what the defense claims and conflicts appear in various instances.  One such instance was the testimony of the first prosecution witness, Patrolman Marciano Roque of Caloocan City, to the effect that one month or so before the execution of the crime, Benjamin Ong solicited his help in consummating his plan.  Patrolman Roque testified that he tried his best to convince Benjamin Ong to desist but to no avail.  It was this witness who revealed Benjamin Ong's plan to ask for money from the rich family of the deceased and, with said money, he, Roque, could already resign from his job should he participate.^[20]

In his testimony before the lower court, Benjamin Ong vehemently denied having revealed such plan to the witness.^[21] However, in his brief, accused Benjamin Ong claims that this testimony if ever there was such, does not reveal his intention to kill Henry Chua that early.  At most, he said, it was a mere "infantile thought of wishing someone dead" and no more.^[22]

On this point, counsel for the accused Ong, argued as follows in their well-written brief:

"Pat. Roque has not categorically asserted that he was a friend of Benjamin Ong.  They came to know each other when he, as a policeman, investigated theft and robbery cases on the complaint of the Acme Shoe and Rubber Corporation where Benjamin Ong worked as Assistant Manager.  (pp. 5-7, t.s.n., Sept. 16, 1971) As to why Benjamin would reveal a plan to kidnap another to a policeman, in the absence of a close and long association, is just too incredible to merit belief.  Pat. Roque said that Benjamin Ong "confided to me that I am the only person whom he can trust so he further enumerated a detail that he intended to get a money and ask for the money from the parents of the victim." (Id., p. 10) As to why he merited the trust of Benjamin Ong, he did not say.

"Pat Marciano Roque said that he has no criminal record (Id., p. 42).  He has not conveyed to Benjamin Ong any information that he is a gun for hire (p. 43), nor does he have that reputation (Id., p. 43).  If he were a criminal or he had a reputation as a professional killer, it is perhaps possible for one in Benjamin Ong's position to have made the proposition to him.  Moreover, when he was cross-examined on the alleged intention to collect ransom, he committed material contradictions such as to raise serious doubt on the veracity of his testimony.  He could not categorically assert whether the alleged intention of Benjamin Ong was to kill the victim first and demand money from his parents after, or detain him first, and after receiving ransom money, kill the victim.

ATTY. QUISUMBING:
Q	Your testimony is as follows: that he told you that after demanding the money to kill the man, you remember that?
A	That was what he said.
Q	In other words, this was not the way he told you, that he would grab the man so that he could get the money by extortion or by ransom?
A	He said that after having in his possession his intended victim he would demand some money from his parents.
Q	I will recall in your direct testimony ... you said that afterwards if he could get the money he will kill the man, that was your first testimony, which is correct?
A	He lost one hundred fifty thousand.
Q	And he needed money and so he would demand money from the father or parents of the victim, is that your testimony?
A	Yes, sir.
Q	And afterwards he wanted to kill the man?
A	No, sir.
Q	And so what is your testimony now?
A	After he got the man he will demand money from the parents or ransom money from the parents of the victim.
Q	So it is the other way. He first would kill the man and afterwards get the money.
ATTY. DE SANTOS:
	The question is misleading.
COURT:
	Answer.
WITNESS:
A	No, sir, he said that after receiving the money the man may be killed.
Q	Is that your testimony? That he will kill the victim or the victim may be killed?
A	No, sir.
Q	So which is which?
A	He will kill the victim?
A	After getting the money?
A	Yes, sir. (pp. 38-41, t.s.n., Sept. 16, 1971)"

Another point of conflict is the claim of the prosecution that a ransom note was indeed written and copied by Henry Chua from a prepared note before the latter was icepicked and buried.  It appears that co-accused Bienvenido Quintos stated in his supplementary extrajudicial statement before the NBI that:

"Yes sir.  After we have brought victim some meters away from the road, FERNANDO TAN ordered victim to lie face down on the ground at the same (time) he untied victim and removed the gag while his gun was still pointed at the head of Victim.  Thereafter he ordered the victim to copy a prepared ransom note in a piece of yellow paper saw the figure $50,000.00 because I was holding then the flashlight. It was only after the ransom note was written and was submitted to BENJAMIN ONG that FERNANDO TAN returned to us."^[23]

This is hearsay as against Benjamin Ong and Ong vehemently denied the same in his testimony, in open court when he said upon questioning:

"Q	In this statement Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Viscain (sic) car and then brought to that uninhabited place in Barrio Makatipo; what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo?
A	My purpose was just to kill him, and there is (sic) not going to be any delay.
"Q	Was there any purpose of detaining him for sometime?
xxx                                  xxx                                              xxx
A	No, there was no purpose to detain him any further."[24]
Also, in his extrajudicial statement, he said:
"Q	When you hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom money from the family of HENRY CHUA?
A	Never, the question of ransom money never entered my mind."[25]

Admittedly, no such genuine ransom note was received by the family of the deceased.  Undoubtedly, its presence in the crime could aggravate it, allowing the imposition of the capital punishment of death.^[26]

Also conflicting is the matter of Bienvenido Quintos' participation at the time Henry Chua was dragged into the Biscayne car.  The briefs of both parties tend to show that it was Fernando Tan and Baldomero Ambrosio who pulled Henry Chua out off his Mustang car, forced him into the Biscayne car, tied and gagged him.^[27] However, Agent Lacanilao testified that in the reenactment of the crime it was shown that Bienvenido Quintos and Fernando Tan were the ones who dragged Henry Chua out of his car.^[28] Added to this is the claim of Benjamin Ong that Baldomero Ambrosio merely drove the Biscayne for the group.^[29]

The prosecution likewise claims in its brief that as early as a week before the incident, the group already chose a site and prepared a hole where to bury Henry Chua;^[30] that this group was in constant search of the victim along the nightclub row in Roxas Boulevard during the succeeeding evenings but failed to see him;^[31] that a day before the unfortunate evening, Ong contacted Miss Clarita Teh of the Skyways Travel Service at Ongpin St., Sta. Cruz, Manila, and asked for a booking for Hongkong and Taipei, and deposited P4,000.00 therein.^[32] Similarly, it is alleged that on April 29, 1971, a few days after the incident, Tan and Ong contacted Severo "Boy" Roslin, a long-time friend of Tan, to help them obtain airplane seats for the Visayas, but they failed;^[33] that they also proceeded to the pier to seek passage to the South on a boat but they were likewise frustrated;^[34] that instead, they took a train ride to Lucena City where Roslin left them and after which, they continued to Legaspi City;^[35] that finding no acquaintance there, they went back to Manila;^[36] that on May 1, 1971, Tan again engaged Roslin's services and with the latter driving his car, they picked up Quintos and Ong and went to Barrio Balugo, Oas, Albay and stayed there in the house of Roslin's parents;^[37] that Ong was left there while Roslin, Tan and Quintos went back to Manila.^[38]

A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos and some NBI and MPD agents who played the role of their co-accused Fernando Tan and Baldomero Ambrosio.^[39]

The trial of this case in the lower court proceeded with commendable speed, although separate trials for the two accused who had been arrested so far at that time were held upon the latter's request.  Both entered a plea of "not guilty" to the crime charged upon arraignment on September 4, 1971.  However, in the case of Benjamin Ong, he invoked the doctrine laid down in the case of People vs. Yturriaga^[40] to the extent that the prosecution should not nullify the mitigating circumstance of a plea of guilty, by counteracting it with "unfounded allegations" of aggravating circumstances in the information.  In other words, he admitted his guilt in so far as the crime of simple murder was concerned.^[41]

Before this Court, the accused Benjamin Ong maintains that:

I
"The Court a quo erred in finding the accused guilty of the crime of kidnapping with murder because

(a)  There was no evidence offered against the accused which would prove that the crime of kidnapping was committed at all;

(b)  Kidnapping cannot be complexed with murder.

(c)  In those cases where the Supreme Court convicted the accused of Kidnapping with Murder, there was shown an intention to deprive the victim of his liberty, and it was held that the kidnapping was a necessary means to commit the crime of murder.

II
"The court a quo erred in finding that the killing of the deceased was attended by the generic aggravating circumstances of

(a) Abuse of superior strength;
(b) Nighttime;
(c) Uninhabited place;
(d) Abuse of confidence;
(e) Use of motor vehicle; and
(f) Cruelty.

and the qualifying circumstances of

(a) Alevosia
(b) Evident premeditation.

III
"Assuming that the killing of Henry Chua was attended by the aggravating circumstance of alevosia, the aggravating circumstance of abuse of superior strength and nighttime, if present, are absorbed by treachery.

IV
"The court a quo erred in not appreciating (a) plea of guilty, and (b) circumstances of a similar nature or analogous to Article 13, paragraphs 1 to 9 of the Revised Penal Code as mitigating.

V
"The court a quo erred in imposing the death penalty upon the accused.

VI
"The court a quo erred in sentencing the accused to pay excessive damages."^[43]

For his part, the accused Bienvenido Quintos argues that:

"1.  The lower court erred in giving full weight and credit to the extrajudicial statement of the defendant-appellant.

"2.  The lower court erred in not finding that there was no conspiracy between defendant-appellant Bienvenido Quintos and the other accused.

"3.  The lower court erred in not acquitting defendant-appellant Bienvenido Quintos."^[44]

OUR RULING
The Evidence on the Alleged Writing of a Ransom Note is Insufficient to Support a Finding in Favor of the Prosecution:
First, Benjamin Ong vehemently denied asking for ransom.

"In the extrajudicial statement of Benjamin Ong, he was asked this question:  'Q.  When you hatched the plan to kill HENRY CHU A, did it ever occur to you to demand or ask for any ransom money from the family of HENRY CHUA?' to which he answered:  'Never, the question of ransom money never entered my mind.'" (Question No. 5, Exh. N.)

Secondly, no ransom note was presented as evidence by the prosecution, nor did the latter show that a demand for money was made upon the family of the victim.  In the case of People vs. Manzanero, Jr.,^[44] We held:

"Furthermore, what could have been the motive for the kidnapping?  According to the trial court, the ransom money was needed by Manzanero to defray the huge expenses for the day-to-day living of his lawful wife and seven children, and of his mistress and his five children by her, and his repair shop that was earning only about P1,000 monthly could hardly meet the salaries of his 16 workers and mechanics.  But is it credible that Manzanero, 'being the intelligent and shrewd man that he appears to be,' according to the trial court, could even have entertained the illusion that the kidnapping that he was to perpetrate so clumsily and amateurishly would be profitable to him, and he could escape from criminal prosecution?  And what is strange is, if the ransom note was indeed written, why was it never presented in evidence?  The claim that it was lost is unbelievable.  That ransom note, if it ever existed, was the most important piece of evidence that could support the prosecution's theory that the kidnapping was for ransom.  Certainly, that piece of evidence should be kept and preserved.  No plausible explanation was given how that ransom note got lost.  Neither the father nor mother of Floresita was made to testify regarding the alleged ransom note.

"Moreover, if ransom was the purpose of the kidnapping, why did Manzanero so easily, and without apparent reason, give up his alleged criminal enterprise, when he could have pursued it to a successful end?  If there was really that ransom note, and that ransom note was sent, the most logical thing that Manzanero would have done was to send instructions to Floresita's family on how, when, and to whom the ransom money should be delivered.  There is no evidence that Manzanero ever made any follow up in order to get the ransom.

"Furthermore, barely two days after the alleged kidnapping for ransom, Manzanero, without having obtained even part of the ransom money, released Floresita.  Would a kidnapper, as Menzanero was alleged to be, readily release the victim without realizing his purpose?" (Italics Supplied)

Thirdly, the extrajudicial statement of accused Quintos wherein he stated that Fernando Tan ordered Henry Chua to prepare a ransom note wherein he saw the figure S50,000.00, is tainted with serious doubts due to the apparent maltreatment that Quintos received from the NBI and MPD men on September 3, 1971.^[45] The medical certificates and case record^[46] issued by the Philippine General Hospital support the findings and remark of the examining physician, Dr. Florencio Lucero, that in the person of accused Quintos, "intramascular hematoma is evident." BeSides, it is hearsay and therefore incompetent evidence against Benjamin Ong.  And in the reenactment, as testified to by NBI agent Lacanilao, while the ransom note was being prepared, Benjamin Ong was about 50 meters away from the place where the note was being prepared.

Fourthly, although both parties in their briefs agree that the victim's hands ere tied after he was shoved into the rear floor of the Biscayne car, neither, makes a categorical claim that the hands were tied at his back.  In fact Acting Solicitor General Hector C. Fule submits in his brief that the victim was made to lie down "face up".^[47] This leads to the conclusion that the rope around the victim's hands was never removed at any instance up to the time that he was buried and exhumed.  This discounts the idea that before the victim was made to a copy prepared ransom note the hands at his back were tied, and after the writing, his hands were again tied, this time in front.  Bienvenido Quintos in open court positively stated that the victim was made to lie on his back inside the car and hands tied on his breast.^[48] The contrary evidence on this point are those of Agent Lacanilao on the reenactment of the crime which was based on the extrajudicial statement of Bienvenido, Quintos.^[49] However, as shown above, this statement is of dubious veracity.

Finally, that appellants never intended to make money out of the murder of Henry Chua, can be clearly deduced from the fact that Chua was buried with everything in his person; and during the exhumation of his body, his brother, Sy Yap Chua, identified the articles found in the body of the deceased, such as a Piaget watch worth around P10,000.00 (Exh. B), a wallet together with money, with P50 bills and other denominations.

In the light of the foreging facts and circumstances, We cannot give any credence to the testimony of Patrolman Roque that about the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000.00; that he would ask for money from the latter's parents and after which he would kill the victim.  And the facts brought out on cross examination of this witness, which We have discussed earlier, show the incredibility of Ong confiding to Patrolman Roque his criminal intention, particularly, his intention to ask money from the parents of the intended victim.  As a matter of fact, this witness, on cross examination, got lost, so to speak, on the point of whether according to Ong, he would first kill the intended victim and demand money from his parents afterwards, or detain him first and, after receiving a ransom money, kill the victim.  Furthermore, from the first week of April, 1971, when this intention was allegedly revealed by Ong to this witness, Ong could have changed his mind with respect to the demand for money when the victim was actually taken and killed in the early morning of April, 1971.

There was no Kidnapping to Make the Crime a Complex one of Kidnapping with Murder
The extrajudicial confession (Exhibit N) of accused Benjamin Ong was affirmed and confirmed by him in open court, thus:

"Q	I show you this document marked as Exhibit "N", statement of Benjamin Ong, dated September 1,1971, do you admit that this is your statement given to the NBI?
A	Yes, sir.
Q	In this statement, Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Biscayne car and then brought to the uninhabited place in Barrio Makatipo, what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo?
A	My purpose was just to kill him, and there is not going to be any delay.
Q	Was there any purpose of detaining him for sometime?
A	No, there was no purpose to detain him any further."

The evidence on record shows clearly that the deceased Henry Chua and Benjamin Ong left the Wigwam Nightclub at Parañaque, at about 1:30 a.m. on April 24, 1971, in the car of Chua.  Chua went voluntarily with Ong, so much so that Chua himself drove his car.  They were already in Del Monte Avenue, near the place in Caloocan where Chua was killed and buried when they tied the hands of the deceased; that there were still disagreement among the four accused oh who would kill the deceased, until finally it was the co-accused Fernando Tan who stabbed him with an icepick; and that the four accused including two others, parted from each other at 7:00 o'clock in the early morning of April 24, 1971 after they brought the car of Chua and left it in Bo. Tibag, Balivag, Bulacan.

In view of the foreging facts and circumstances, We hold that there was no kidnapping, but only murder, because the detention of Chua was only incidental to the main objective of murdering him and was not a necessary means for the commission of the murder.  From the Commentaries on the Revised Penal Code of Justice Aquino, an acknowledged authority in criminal law, We find the following:

"If the detention of the victim is only incidental to the main objective of murdering him, and is not a necessary means for the commission of the murder, the crime is only murder and not the complex one of murder through kidnapping.  In the Guerrero case, the accused Huks brought to the mountain two persons, father and son.  The father was killed.  The son, a 14-year old minor, was able to escape on the second night following his detention.  HELD:  The accused were guilty of murder as to the father and kidnapping as to the son.

"In a 1902 case, the victim was taken from his house and then brought to an uninhabited place, where he was murdered.  HELD:  The crime was murder only.  There was no illegal detention 'since it does not appear that it was the purpose of the accused to commit this offense.' The primary objective was to kill the victim:

"Where after the robbery committed in a house, three of its inmates were taken to a place near the river one kilometer from the house, where they were killed, the kidnapping was deemed absorbed in the crime Of robbery with homicide.

"Where the appellants kidnapped the victim at his house at Aviles Street, Manila and forced him to ride in a car, but while the car was at the intersection of Libertad Street, Pasay City, the victim jumped from the car and was shot to death, the crime was held to be murder only." (I Revised Penal Code by Justice Aquino).

And We quote from the brief of appellant Ong:

"The crime committed was only murder.

"As early as the case of US vs. Nicolas Ancheta,.et al. (No. 422, March 14, 1902; 1 Phil. 165), it was held that where the accused kidnapped the victim, Ventura Quinto, took him to a place called Radap, and there by order of Nicolas Ancheta and Sebastian Dayag, the victim was killed, the crime committed by them was murder.  The acts committed by the accused do not constitute the crime of illegal detention since the deceased was captured in his house and taken by the accused to an uninhabited place selected by them for the purpose of killing them there.  (At p. 169).  In the case of US vs. Teodoro de Leon (No. 522), March 10, 1902; 1 Phil. 163), there was a demand for the payment ransom.  Nevertheless, the accused was found guilty not of kidnapping with murder but of murder only.  In this case, the deceased, Don Julio Banson, was forcibly removed from his house by Fabian Tolome, by order of Teodoro de Leon.  He was tortured and maltreated by the defendant until they arrived at a place called Bulutong.  'Not satisfied with torturing the deceased by himself he (Teodoro de Leon) ordered Tolome to give him a blow upon the chest with a bolo.  Don Julio begging for mercy, the defendant sent one of his servants to the wife of the deceased to ask for $1,000.00 for his ransom.  After the servant had been sent all were led to a place called Cosme and upon arriving there the defendant ordered Fabian and Tomome to conduct Don Julio to a ditch.  At the same time the witness and his three companions were given their liberty by the defendant, who remained with his two companions and with Don Julio.  Don Julio was never afterwards seen alive and his headless body was found two or three days later in this same place.' The accused was found guilty of the crime of murder.  Similarly, in the case of US vs. Emiliano Cajayon, et al. (No. 981, Oct. 8, 1903; 2 Phil. 570) twelve armed men kidnapped Tranquilino Torres and took him with them to the barrio Maliig, in the town of Lubang, Cavite province, where they killed him and buried him in a hole dug for that purpose.  It was held that the crime committed was murder.  The pertinent facts of the case are stated briefly as follows:  About 20 armed men forced their way into the house of Felix Marin, made him and his son prisoners, and carried them off with their arms tied behind their backs.  From there they proceeded to the house of the head man of the barrio which they set on fire, and after capturing all the inmates, brought them to an estero called the "Pasig" where they set all prisoners free, except Felix Marin and Isabel Beltran.  These two they took away in a boat and carried to a clump of manglares, at the edge of the estero, where Maris, still bound, was decapitated by one of the band with a single stroke of a bolo.  Isabel Beltran was set free.  It will be noted that as to Isabel Beltran, the son of Felix Maris and the others, who were made prisoners, there was deprivation of liberty.  Nevertheless, the accused was found guilty of murder, and not of kidnapping with murder.  In the case of People vs. Magno Quinto, et al. (L-1963, Dec. 22, 1948; 82 Phil. 467), it was established that Gregorio Caling was picked up at his home in Floridablanca, Pampanga by a band of Hukbalahap on the night of December 9, 1945 and taken to the bank of the Gumain River, Gregorio Caling was investigated in connection with his arms, maltreated, and subsequently killed.  The judgment finding him guilty of murder was affirmed.  In the case of People vs. Juan Bulatao (L-2186, Jan. 29, 1949; 82 Phil. 743), one Jose Tan was forcibly taken by four armed men, among them the accused.  The following morning, the victim was found dead.  It was also held that the accused was guilty of murder.  In the case of People vs. Eufracio Lansang (L-1187, Jan. 25, 1949; 82 Phil. 662) the accused who participated in the kidnapping of the victim who was thereafter killed was found guilty as an accomplice in the crime of murder.  The case of People vs. Alejandro Mendiola, et al. (L-1642, 44, Jan. 29, 1959; 82 Phil. 740) is more significant.  In this case the Supreme Court said:

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

'The three appellants were correctly found by the trial court guilty as authors of the crime of murder. . .'

In the case of People vs. Francisco Moreno (L-2335, March 7, 1950; 85 Phil. 731), several armed men went to the house of Manuel Artates in barrio Pagoncile, Aguilar, Pangasinan, and took him to the Marapudo Mountains in Mangatarem where, he together with one Jose Jasmin, was beheaded.  Thereafter, 'the defendant Francisco cautioned all the men who took part in or witnessed the execution as well as the kidnapping of the two men not to reveal to anyone what they had seen that night under penalty of punishment.' The decision of the trial court finding the appellant guilty of murder was affirmed.  In the case of People vs. Alfredo Riparip, et al. (L-2408, May 31, 1950; 85 Phil. 526), one Enrique Roldan was on December 27, 1944 kidnapped and on the following day killed by certain guerilla units.  The accused were found guilty of the crime of murder.  In People vs. Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil. 189, the deceased Federico Agonias, was taken by the accused from the house of Guillermo Calixto in barrio San Marcelino, Balugao, Pangasinan, and he was killed about 50 meters from the house.  They were found guilty of murder.  In People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952; 91 Phil. 111), it appeared that the four accused took the victim Sabiano Bucad from his house, placed him in a banca and sailed towards the opposite shore of the Bato lake where the victim was maltreated and killed by the accused.  It was held that the crime committed was murder.  In the case of People vs. Eligio Camo and Buenaventura Manzanido (L-4741, May 7, 1952; 91 Phil. 240), the accused took the deceased Patricio Matundan from his house in the barrio of Conda to the barrio of Talaan, both of the Municipality of Sariaya, Quezon.  Upon reaching a place near the mangroves, the group stopped, and accused Came shot and killed the victim.  The accused were charged with the crime of murder with kidnapping.  The Supreme Court held:

'The Solicitor-General next contends that the offense committed was the complex crime of kidnapping with murder.  Again, we are inclined to agree with the trial court that the crime committed was simple murder.  It is true that Patricio was taken from his home but it was not for detaining him illegally for any length of time or for the purpose of obtaining ransom for his release.  In quite a number of cases decided by this court where the victim was taken directly from his house to the place where he was killed, kidnapping was not considered to raise the offense to the category of a complex.' (At p. 246)

In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952; 92 Phil. 48), the accused with about 10 armed men met Mercedes Tobias, accompanied by Eusebio Gerilla and Lucia Pilo, on the way to her home in the barrio of Guiarona, Municipality of Dagami, Province of Leyte.  The accused took hold of Mercedes Tobias and dragged her, while at the same time striking her with the butt of his rifle at different parts of her body.  Eusebio Gerilla and Lucia Pilo saw Mercedes being dragged towards the sitio of Sawahan.  Hardly had they walked one kilometer when they heard gun reports.  The following day, Mercedes was found dead in Sawahan with two gunshot wounds.  Nestorio Remalante was charged and found guilty by the trial court of the crime of kidnapping with murder.  As to the charge of kidnapping, the Supreme Court held:

'There is no sufficient evidence of intention to kidnap because from the moment Mercedes Tobias was held and dragged to the time when the gun reports were heard nothing was done or said by the appellant or his confederates to show or indicate that the captors intended to deprive her of her liberty for sometime and for some purposes and thereafter set her free or kill her.  The interval was so short as to negative the idea implied in kidnapping.  Her short detention and ill-treatment are included or form part of the perpetration of the crime of murder.' (at p. 51)

In the case of People vs. Silvino Guerrero, et al., (L-9559, May 14, 1958; 103 Phil. 1136, Unrep.), the appellants were found guilty for the murder of Candido Disengano and the kidnapping of Paulo Disengano.  As to the killing of Candido Disengano, it was held:

As the court a quo has correctly held, appellants cannot be convicted of the complex crime of kidnapping with murder under Article 48 of the Revised Penal Code, for the reason that kidnapping was not a necessary means to commit the murder.  Candido was detained and brought to the mountains to be killed - this we have held may not be considered kidnapping with murder but mere murder.  (People vs. Camo, G.R. No. L-4741, May 7, 1952; People vs. Remalante, G.R. No. L-3512, 48 O.G. 3881-3883; People vs. Villapa, et al., G.R. No. L-4259, April 30, 1952) [13 Velayo's Digest (new Series) 337; please see also 103 Phil. 1136]'

In People vs. Santos Umali, et al. (L-8860-70, January 23, 1957; 100 Phil. 1095 Unrep.), the accused were charged and convicted by the trial court of kidnapping with murder.  The evidence shows that the deceased was killed in front of his house.  The crime committed is only murder.  (13 Velayo's Digest [New Series], p. 340).

In People vs. Cenon Serrano alias Peping, et al. (L-7973, April 27, 1959; 105 Phil. 531), the accused were charged with illegal detention with murder.  After a drinking spree, the accused, Cenon Serrano, suggested to the deceased Pablo Navarro to leave Bacolor, Pampanga for San Fernando for a good time, to which suggestion the latter agreed.  While the victim together with the accused Cenon Serrano and others were on the way to San Fernando, Cenon Serrano suggested that they proceed to Angeles for a good time to which Pablo Navarro agreed.  Upon reaching barrio San Isidro, Cenon Serrano ordered the driver to proceed to barrio Dolores, Bacolor, Pampanga where the deceased was detained and questioned at the stockade of the civilian guards.  That same afternoon, Pablo Navarro was taken out of the stockade and was brought to sitio Castilang Malati where the deceased was shot and killed.  The trial court found the defendants guilty of the crime of murder.  The decision was affirmed by the Supreme Court.  In People vs. Rosario Lao, et al. (L-10473, January 28, 1961; 1 SCRA 42), one Rosa Baltazar was taken by two of the accused and killed beside a creek about 6 to 10 meters away from the hatchery of the Lao poultry farm where she was staying.  The trial court found them guilty of the crime of kidnapping with murder.  The Supreme Court held that 'the crime committed is not kidnapping with murder as stated in the title of the information but murder.'

In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960; 110 Phil. 588), a group of five armed men forcibly took from their houses the victims Juan Galaraga and Victor Alamar to a place about 40 meters away from the house where they were shot.  Juan Galaraga died.  Victor Alamar was seriously wounded.  The trial court convicted the accused of the complex crime of kidnapping with murder.  The Supreme Court held that this was error.  'Nothing was said or done by the accused on his confederates to show that they intended to deprive their victims of their liberty for some time and for some purpose.  There was no appreciable interval between their being taken and their being shot from which kidnapping may be inferred.' (See People vs. Remalante, 92 Phil. 48; O.G. ^[9] 38881).

From the foregoing discussion, it seems clear that the weight of authority is in favor of the proposition that where the victim was taken from one place to another, solely for the purpose of killing him and not for detaining him for any length of time or for the purpose of obtaining ransom for his release, the crime committed is murder, and not the complex crime of kidnapping with murder.  This ruling is entirely consistent with the law.  Art. 267 of the Revised Penal Code penalizes a person 'who shall kidnap or detain another,' and the penalty becomes capital 'where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person.'

x x x                                        x x x                                           x x x
In the case at bar, the only evidence appreciable against the appellant Benjamin Ong regarding the surrounding circumstances of Henry Chua's death are (1) the extrajudicial statement of Benjamin Ong, (2) the testimony of Benjamin Ong during the trial, (3) the testimony of agent Enrique Lacanilao about the reenactment of the crime.

In the extrajudicial statement (Exhibit N) Benjamin Ong said that from the Wigwam nightclub, Henry Chua and he rode on Henry's Mustang car with the latter driving it.  Fernando Tan and his friend were in the Biscayne car of Benjamin Ong following the Mustang.  (Answer to Question No. 40, p. 3, Exh. N).  At Araneta Avenue in Quezon City, Benjamin Ong requested Henry Chua to stop the car to enable him to urinate.  When Henry Chua complied, Fernando Tan and his friend stopped in front of the Mustang car, pretending to be policemen, and ordered Henry Chua to go with them to the police precinct.  (Id., p. 5) Fernando Tan drove the Biscayne car, while Benjamin Ong in Henry Chua's car followed.  From Araneta Avenue, Fernando Tan drove to Novaliches where Henry Chua was killed.  (Id.) It will be noted that no appreciable time elapsed from arrival at Novaliches up to the time Henry Chua was killed, to indicate a separate intention to deprive the latter of his liberty.  When Benjamin Ong testified on September 22, 1971, he affirmed his admission of responsibility for the death of Henry Chua (t.s.n., Sept. 22, 1971, p. 26).  He further testified as follows:

ATTY. QUISUMBING:
Q	In this statement Exhibit "N", you admitted that Henry Chua was taken from the mustang car and transferred to the biscayne car and then brought to that uninhabited place in having the late Henry Chua taken from his car and brought to Makatipo?
A	My purpose was just to kill him, and there is not going to be any delay.
Q	Was there any purpose of detaining him for sometime?
xxx                                 xxx                                       xxxx
A	No, there was no purpose to detain him any further. (Id., pp. 27-28)

The narration of agent Enrique Lacanilao about the re-enactment of the crime showed that there was no detention of the deceased Henry Chua for any length of time.  He was killed and promptly buried.  (Please see pp. 43-47, t.s.n., Sept. 18, 1971).  On the basis of the foregoing evidence, the accused can hardly be held liable for kidnapping as well.  It may not be amiss to state that an accused is entitled to acquittal unless his guilt is shown by proof beyond reasonable doubt.  (Rule 133, Section 1, Revised Rules of Court).  The evidence at hand hardly satisfied the requirement of proof beyond reasonable doubt as to the charge of kidnapping.  The necessary result is that the accused can be held liable only for the killing of Henry Chua." [Brief for the Appellant Benjamin Ong y Kho, pp. 43 to 56]

And the evidence on record clearly show that Henry Chua voluntarily went with Benjamin Ong when they left the Wigwam Nightclub at Parañaque at about 1:30 a.m. on April 24, 1971, so much so that they rode in the car of Chua and it was driven by Chua himself.  The two drove straight down Roxas Boulevard, then to Quiapo, and Quezon Boulevard Extension in Quezon City; and after passing Sto. Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue.  When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car for the former to urinate to which the latter obliged.  The Biscayne car where Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio were riding, stopped.  Fernando Tan poked his gun at Chua and pulled him down from his Mustang car with Ambrosio giving help.  His hands were tied, his mouth gagged with a flannel cloth, and he was placed in the Biscayne car.  Tan and Bienvenido Quintos then rested their feet on him.  Then Ambrosio drove the Biscayne while Ong drove the Mustang.  They proceeded towards Barrio Makatipo, Novaliches, Caloocan City, where Henry Chua was stabbed to death and buried.

In other words, the time interval when the deceased Henry Chua was actually deprived of his liberty was short (from Del Monte Avenue to Barrio Makatipo, Novaliches, Caloocan); and the same was only incidental to the main objective of murdering him.

The only authority cited by the prosecution on this point is that of the case of Parulan vs. Rodas (88 Phil. 615).  But the ruling in the Parulan case cannot be applied to the case at bar, because in the Parulan case, the Court found that the kidnapping was a necessary means for the purpose of extorting ransom from the victim and killing him if the desired amount could not be given; and that the defendants had to kidnap or carry the victim from Manila (where he was already deprived of his liberty, with Parulan poking his gun on the victim), to a faraway and secluded place (a river in Bambang, Bulacan) in order to better secure the consent of the victim through fear to pay the ransom, and kill him if he refuses to accede to their demands, as in fact he was killed by Parulan because of his (victim's) refusal to pay the ransom.

We Hold that Both Appellants are Guilty of Murder
The killing of the victim in this case was attended by several qualifying and aggravating circumstances.  The facts on record prove this, beyond reasonable doubt, even if we were to disregard the extrajudicial confession of Benjamin Quintos which he denied and was allegedly extracted from him through force and intimidation.

Treachery (alevosia) qualified the killing to murder.  Undisputed facts show that Henry Chua's hands were tied and his mouth was gagged with a flannel cloth before he was stabbed twice with an icepick and buried in a shallow grave near a creek.  These facts portray well that the tied hands of the victim rendered him defenseless and helpless thereby allowing the accused to commit the crime without risk at all to their person.^[50]

The accused Benjamin Ong and Bienvenido Quintos, however, were quick to insist that this circumstance should not be taken against them because they did not do the actual stabbing (which was done by Fernando Tan).  Easily, the weakness of this claim can be discerned.  Conspiracy, connivance and unity of purpose and intention among the accused were present throughout in the execution of this crime.  The four participated in the planning and execution of the crime and were at the scene in all its stages.  They cannot escape the consequence of any of their acts even if they deviated in some detail from what they originally thought of.  Conspiracy implies concert of design and not participation in every detail of execution.^[51] Thus, treachery should be considered against all persons participating or cooperating in the perpetration of the crime.^[52]

With regards to the aggravating circumstance of abuse of superior strength, the same should be deemed absorbed in treachery.  This position is itself supported by the Acting Solicitor General in his brief and is sustained in a long line of decisions.^[53]

In the same vein, the accused would like the aggravating circumstance of nighttime (nocturnidad) to be absorbed in treachery in that it forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime.  The case of People vs. Berdida^[54] provides the exception to this rule and is applicable to the case at bar.  It was there held that:

"From the facts and evidence of record in this case, it is clear that appellants took advantage of nighttime in committing the felonies charged.  For it appears that to carry out a sentence they had pronounced upon Antonio Maravilla and Federico Canalete for the death of one Pabling, they had evidently chosen to execute their victims under the cover of darkness, at the dead of night, when the neighborhood was asleep.  Inasmuch as the treachery consisted in the fact that the victim's hands were tied at the time they were beaten, the circumstance of nighttime is not absorbed in treachery, but can be perceived distinctly therefrom, since the treachery rests upon an independent factual basis.  A special case therefore is present to which the rule that nighttime is absorbed in treachery does not apply."^[55]

This aggravating circumstance was correctly appreciated by the lower court regardless of whether or not the same was purposely and deliberately sought by the accused for it is clear that the darkness of the night facilitated the commission of the crime and was taken advantage of by them.^[56]

The purposive selection of an uninhabited place (despoblado) is likewise clear from the evidence.  The killing was done in Barrio Makatipo, Novaliches, Caloocan City, an isolated place that resembled that of an abandoned subdivision.  The place was ideal not merely for burying the victim but also for killing him for it was a place where the possibility of the victim receiving some help from third persons was completely absent.  The accused sought the solitude of the place in order to better attain their purpose without interference, and to secure themselves against detection and punishment.^[57] As aptly stated in the "Sentence" of the lower court:

". . . The possibility of the victim calling for succor or assistance from any third person was ruled out by the chosen site.  Trees, lush vegetation and thick cogon grasses hide the place where the crime was committed from the view of even a chance passerby.  The choice of an uninhabited place for the killing of Henry Chua, therefore, further aggravated the offense committed by the accused.  People vs. Curiano, L-15256-57, October 31,1962; U.S. vs. Vitug, 17 Phil. 1)."^[58]

In the case of the aggravating circumstance of abuse of confidence (abuso de confianza), it appears that the lower court wrongly appreciated this circumstance.  In order for this circumstance to obtain, it is necessary that there be a relation of trust and confidence between the accused and the one against whom the crime was committed, and that the accused made use of such relation to commit the crime,^[59] It is essential too that the confidence be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence.^[60]

Nowhere in the records does it appear that Henry Chua reposed confidence upon the person of Benjamin Ong.  If any, Henry Chua was simply not afraid of Benjamin Ong, having told and bragged to the latter about his violent exploits in the past and threatened him with bodily harm in case of failure to pay.^[61] He knew that he was far stronger than Benjamin Ong in terms of influence and money.  He thought that Benjamin Ong would fear him.  The fact that Henry Chua invited Ong for nightclubbing that fatal evening and accommodated him in his car on their way home from the nightclub does not mean that Henry Chua had confidence in him.  There was no special relation of confidence between them.  He knew that Benjamin owed him a substantial amount and that its settlement had long been overdue which fact irritated him very much.  Benjamin Ong and Henry Chua were together that night in the nightclub as well as in the car not because of said confidence.  It was simply because Benjamin Ong had some accounts to settle with him.  Thus, in the case of U.S. vs. Cruz, et al.,^[62] it was held that:

"...The fact of Cabaya having simulated friendship and desire for work, together with the companions who went with him, and the fact that he received food and work immediately upon being accepted by the Americans to work in the mines, is not, as stated in the judgment, a degree of treachery, according to law, sufficient to constitute the aggravating circumstance of abuse of confidence.  It may however, be argued as unworthy conduct and ingratitude, but not as abuse of confidence.  It is necessary first to show what has been the confidence granted or given in order to determine whether there was or was not an abuse of it, and in the present case there is nothing to show what the confidence given or conceded to Cabaya was, that could facilitate the commission of the crime."

Likewise, in the case of People vs. Brocal,^[63] it was held that:

"There is no abuse of confidence in attempted rape where on the day of the crime the accused was in the company of the offended girl, not because of her confidence in him, but because they were partners in a certain business."

More convincing this time is the aggravating circumstance of use of motor vehicle in the commission of the crime.  The Biscayne car of Benjamin Ong was used in trailing the victim's Mustang car from Wigwam Nightclub up to the time that it was overtaken and blocked.  It carried the victim on the way to the scene of the killing; it contained at its baggage compartment the pick and shovel used in digging the grave; it was the fast means of fleeing and absconding from the scene.  Again, the motor vehicle facilitated the stark happening.  It has been held that the use of motor vehicle is aggravating in murder where the said vehicle was used in transporting the victim and the accused.^[64]

Cruelty (ensañamiento), as an aggravating circumstance, cannot be considered here.  The brief of the Acting Solicitor General agrees with that of the accused in denying the attendance of cruelty as an aggravating circumstance.  Indeed, as it appears from the record, the group intended merely to kill the victim, bury him, and flee from the locale of the fearful crime.  For cruelty to exist, it must be shown that the accused enjoyed and delighted in making their victim suffer slowly and gradually, causing him unnecessary physical or moral pain in the consummation of the criminal act.^[65] Even granting that the victim died because of asphyxiation when he was buried and not hemorrhage from stab wounds, as testified to by Dr. Ibarrola,^[66] which, however, has been contradicted by his own necropsy report which shows that the cause of death was the "punctured wounds in the abdomen," and by Dr. Lara who testified that the two wounds could have produced death due to shock, it appears that the victim's burial was not meant to make him suffer any longer but simply to conceal his body and the crime itself.

Concededly, the qualifying circumstance of evident premeditation (premeditacion conocida) attended the commission of the crime.  What else can better portray this circumstance than the frequent meetings^[67] of the four accused at the Barrio Fiesta Restaurant in order to discuss, lay out the plan, and secure the different paraphernalia consisting of the rope, icepick, flannel cloth, flashlight and shovel.^[68] Added to this is the careful selection of an "ideal" site for the grissly happening.^[69] Similarly, the plan to go to Taipeh and Hongkong immediately after the incident pictures the presence of evident premeditation.^[70] The accused meditated and tenaciously persisted in the accomplishment of the crime and were not prompted merely by the impulse of the moment.^[71]

Although the claim of the accused Benjamin Ong that the mitigating circumstance of plea of guilty should be appraised in his favor appears academic herein, as will be shown in the dispositive portion, for the sake of argument, however, the same is given weight here.  Indeed, the kidnapping portion of the crime cannot be appreciated here beyond reasonable doubt as stated at the outset.  Furthermore, it can be seen that the prosecution alleged so many aggravating circumstances which should be absorbed in one or the other.  To plead guilty to this information naturally would be most unfair for the accused especially where the penalty would be the capital punishment of death.  The accused showed signs of remorsefulness upon his arrest when he cooperated with the police authorities in the solution of the crime.  As held in the case of People vs. Yturriaga,^[72]

"x x x It only remains to consider briefly whether the defendant's plea of guilty in the form it was entered constitutes a voluntary confession of guilt before the court as defined in the same subsection of Article 13.  We think it does.

"Although the confession was qualified and introduction of evidence became necessary, the qualification did not deny the defendant's guilt and, what is more, was subsequently fully justified.  It was not the defendant's fault that aggravating circumstances were erroneously alleged in the information and mitigating circumstances omitted therefrom.  If such qualification could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this mitigating circumstance by counteracting it with unfounded allegations of aggravating circumstances."

We hold that the accused Benjamin Ong is likewise entitled to the mitigating circumstance that is analogous to passion and obfuscation (Art. 13, par. 10, Revised Penal Code), based on the following facts stated in his brief:

a)   Henry Chua and his companions went to the office of Benjamin Ong.  In a loud voice, with angry gestures, and in the presence of his subordinates and fellow employees, Henry Chua demanded payment, and threatened bodily harm to him and his family.

b)   Henry Chua went as far as to threaten the life of Benjamin Ong unless his obligation to Chua was paid.  "If you treasure your life, you better pay first."

c)   Because of this incident, he, Benjamin Ong, "was humiliated."

d)   His brother-in-law, Chua Pak, told him that he was holding a very responsible position in the company and so he should not be involved in any scandal.

e)  He was "discredited and degraded in front of my brother-in-law.  He was so embarrassed, he finally tendered his resignation from the company.

f)   Because of the threat of Henry Chua, the accused tried to get money from all sources but he was not successful.  The allotted time was so short.  To relieve him of the pressure brought to bear upon him to pay his gambling debt, he even thought of embezzling money belonging to the company in which he worked.

g)   Because of his inability to raise money to be paid to Henry Chua, he became "deeply depressed." He felt:  "I was being turned into a criminal.

h)   He begged Henry Chua to give him more time to raise the money.  "Nagmamakaawa na ako sa kanya." This was the night before Henry Chua was killed.  If Henry Chua had granted him time "the whole plan to kill Henry Chua might not materialize." But Henry Chua, while not relenting, but perhaps in utter contempt and disdain of Benjamin Ong instead decided to transfer from Amihan to Wigwam because he wanted to be entertained by a hostess.  Henry Chua, it will be noted, was well known to Wigwam hostess, Ligaya Tamayo.  Benjamin Ong was seen by her for the first time that evening.

i)   So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded with Henry Chua in vain for more time to pay the obligation.

x x x                                        x x x                                  x x x

In People vs. Timoteo Olgado, et al. (L-4406, March 31, 1952; 91 Phil. 908, Unrep.), the two accused were provoked to commit two murders because of the indecent propositions made to the women by Jalumio and his companions.  For Mario Aninias, this is the mitigating circumstance of passion and obfuscation or vindication of a grave offense to his wife.[73

In this regard, accused Benjamin Ong filed on October 10, 1973 before this Court a Petition for New Trial and/or to Consider Case as Simple Murder.^[74] In this petition, Benjamin Ong's wife, Athena Caw Siu Tee Ong, alleged in an affidavit an incident when her husband refused to allow her to testify on during the regular trial in the lower court.  She said that Benjamin Ong suppressed it became it would be a source of "great shame" to their family.  Indeed, the records show how Benjamin Ong's counsel vainly convinced him to tell it but he refused to do so.^[75] Lately, Benjamin Ong has changed his mind and has consented to his wife's divulging the story.  Said story simply consists of Henry Chua's proposal of love and attempted rape allegedly committed on the person of Athena on April 15, 1971 which Henry Chua asked in lieu of the payment of the gambling debt.  However, this matter is now academic because it would only tend to bolster the mitigating circumstance that is analogous to passion and obfuscation, which we have just considered in favor of the accused Benjamin Ong.

IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, are hereby found guilty beyond reasonable doubt of the crime of murder with the attendant qualifying circumstance of treachery, and the aggravating circumstances of evident premeditation and use of motor vehicle.  These two circumstances are offset by the mitigating circumstances of plea of guilty and one similar or analogous to passion or obfuscation which are appreciated in favor of accused-appellant Benjamin Ong who is hereby sentenced to reclusion perpetua.  Justices Teehankee and Makasiar, however, are of the opinion that the crime committed by the two accused-appellants Benjamin Ong and Bienvenido Quintos is kidnapping with murder and that the kidnapping was conceived for the purpose of extorting ransom, among other motives.  The members of the Court failed to arrive at a clear consensus on the existence of the aggravating circumstances of "nighttime" and "uninhabited place" (which Justice Barredo, in his concurring and dissenting opinion, concluded do not obtain in this case).

With respect to the accused-appellant Bienvenido Quintos, although no mitigating circumstance can be appreciated in his favor, and he should therefore be sentenced to death, the Court hereby imposes upon him the penalty of reclusion perpetua and not death, because of Our conclusion that his co-accused-appellant Benjamin Ong should be sentenced only to reclusion perpetua, and because Justice Barredo, in his concurring and dissenting opinion, even concluded that Bienvenido Quintos is guilty only as an accomplice; and hence, in any event, We would not have the necesssary ten votes for the imposition of the death penalty upon said accused-appellant.

As We hereby sentence the two accused-appellants Benjamin Ong and Bienvenido Quintos to suffer the penalty of reclusion perpetua, We affirm that part of the decision under review, which sentenced them jointly and severally to indemnify the heirs of the deceased Henry Chua in the amount of P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages; and to pay their proportionate share of the costs, as We find no reason to disturb the same.

Makalintal, C.J., Teehankee, Makasiar, Antonio, Esguerra, Muñoz Palma, and Aquino, JJ., concur.

Castro, J., concurs in the result.

Fernando, J., took no part.

Barredo, J., concurs and dissents in a separate opinion.

---

^[1] "Sentence", Rollo, p. 40.

^[2] "Information", Rollo, pp. 2-3.

^[3] TSN, Records, September 22, 1971, 2:00 p.m., pp. 5-11.

^[4] Ibid, pp. 2, 4; "Extrajudicial Statement Bienvenido Quintos," Exhibit "O", Records, September 3, 1971, pp. 49-50.

^[5] TSN, Records, September 16, 1971, pp. 2-59.

^[6] TSN, Records, September 16, 1971, pp. 59-73.

^[7] Ibid.

^[8] Ibid, pp. 74-97.

^[9] TSN, Records, September 17, 1971, pp. 2-8.

^[10] Ibid, pp. 8-12.

^[11] Ibid, pp. 12-23.

^[12] Ibid, pp. 2-88.

^[13] TSN, Records, September 20, 1971, pp. 2-32.

^[14] TSN, Records, September 21, 1971, 2:00 p.m., pp. 3-13.

^[15] Ibid, pp. 14-16.

^[16] Ibid, pp. 17-35.

^[17] Ibid, pp. 2-100.

^[18] TSN, Records, September 22, 1971, 2:00 p.m., pp. 3-90.

^[19] "Extrajudicial Statement of Benjamin Ong, Exhibit "N", Records, September 1, 1971, p. 43.

^[20] TSN, Records, September 22, 1971, p. 30.

^[21] TSN, Records, September 16, 1971, pp. 22-23.

^[22] TSN, Records, September 22, 1971, p. 31.

^[23] Brief for the Accused Benjamin Ong y Kho, p. 91.

^[24] "Supplementary Sworn Statement of Bienvenido Quintos," Exhibit "Q", Records, September 4, 1971, p. 63.

^[25] TSN, Records, September 22, 1971, pp. 26-28.

^[26] "Estrajudicial Statement of Benjamin Ong" Exhibit "N", Records, September 1, 1971, p. 46.

^[27] Artcile 267 of the Revised Penal Code, as amended provides:

"ART. 267.  Kidnapping and serious illegal detention.  Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1.  If the kidnapping or detention shall have lasted more than five days.

2.  If it shall have been committed simulating public authority.

3.  If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4.  If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense.  (As amended by Rep. Acts Nos. 18 and 1084, effective June 15, 1954 Italics ours.)"

^[28] Brief for the Defendant-Appellant (Bienvenido Quintos), pp. 5-6; Brief for the Plaintiff-Appellee, p. 10.

^[29] TSN, Records, September 18, 1971, p. 8.

^[30] TSN, Records, September 22, 1971, p. 31.

^[31] Brief for the Plaintiff-Appellee, p. 6.

^[32] Ibid., p. 7.

^[33] Ibid.

^[34] Ibid., pp. 13-14.

^[35] Ibid., p. 14.

^[36] Ibid.

^[37] Ibid.

^[38] Ibid.

^[39] Ibid.

^[40] Pcitures, Exhibit "P" to "P-20", Records.

^[41] 86 Phil. 534 (1950).

^[42] "Manifestation," September 14, 1971, Records, pp. 24-25.

^[43] "Brief for the Accused Benjamin Ong y Kho," pp. a-d.

^[44] "Brief for the Defendant-Appellant (Bienvenido Quintos)," pp. 17, 31, 37.

^[45] L-33698, December 20, 1973, 54 SCRA 335, 344.

^[46] TSN, Records, September 22, 1971, pp. 63-65, 73, 77.

^[47] "Medical Certificates," September 23 and 27, 1971, Records, pp. 108-109; "Case Record," Exhibit "4a-b," Records, pp. 118-121.

^[48] Brief for the Plaintiff-Appellee, p. 10.

^[49] TSN, Records, September 22, 1971, pp. 27-28.

^[50] TSN, Records, September 18, 1971, pp. 9-10; Extrajudicial Statement of Bienvenido Quintos, Exhibit "O", Records, September 3, 1971, p. 48.

^[51] People vs. Suday, L-33572, Oct. 10, 1974; People vs. Antonio, L-25845, August 25, 1970, 34 SCRA 401; U.S. vs. Indanan, 24 Phil. 203 (1913); U.S. vs. Colombo, 8 Phil. 391 (1907); U.S. vs. Cobe, 1 Phil. 265 (1902).

^[51] People vs. Mojica, L-17234, March 31, 1964, 10 SCRA 515.

^[52] People vs. Carandang, et al., 54 Phil. 503 (1930).

^[53] People vs. Ordiales, L-30956, Nov. 23, 1971, 42 SCRA 238; People vs. Brioso, L-28482, Jan. 30, 1971, 37 SCRA 336; People vs. Espejo, L-27708, Dec. 19, 1970, 36 SCRA 400; People vs. Layson, L-25177, Oct. 31, 1969, 30 SCRA 92; People vs. Lumantas, L-28355, July 17, 1969, 28 SCRA 764; People vs. Nabual, L-27758, July 14, 1969, 28 SCRA 747; People vs. Reyes, L-21445, May 30, 1967, 20 SCRA 304; People vs. Agustin, L-18368, March 31, 1966, 16 SCRA 467; People vs. Develes, L-18866, Jan. 31, 1966, 16 SCRA 47; People vs. Redona, 87 Phil. 743 (1950); People vs. Mabe, 81 Phil., 58 (1948).

^[54] L-20183, June 30, 1966, 17 SCRA 520.

^[55] See also the cases of People vs. Luna, L-28812, July 31, 1974, 58 SCRA 148; People vs. Sera Josep, 52 Phil. 206 (1928); U.S. vs. Perez, 32 Phil. 163 (1915); U.S. vs. Bredejo and Sudoles, 21 Phil. 23 (1911); U.S. vs. Salgado, 11 Phil. 56 (1908).

^[56] People vs. Villas, L-20953, April 21, 1969, 27 SCRA 947; People vs. Apduhan, L-19491, August 30, 1968, 24 SCRA 801; People vs. Baubay, L-13901, September 19, 1961, 3 SCRA 24; People vs. Corpuz, L-10104, January 28, 1961, 1 SCRA 33.

^[57] People vs. Cornelio, L-1289, June 10, 1971, 39 SCRA 435; People vs. Arpa, L-26789, April 25, 1969, 27 SCRA 1037; People vs. Luneta, 79 Phil. 815 (1947); People vs. Aguinaldo, 55 Phil. 610 (1931).

^[58] "Sentence," Rollo, p. 36.

^[59] U.S. vs. Rodriguez, 19 Phil. 150 (1911).

^[60] People vs. Luchico, 49 Phil. 689 (1926).

^[61] TSN, Records, September 22, 1971, p. 23.

^[62] 4 Phil. 252, 255 (1905).

^[63] CA, 36 O.G. 858 (1937).

^[64] People vs. Mitra, et al., 107 Phil. 851 (1960); People vs. Fortin, 97 Phil. 983 (1955); People vs. Valeriano, 90 Phil. 15 (1951); People vs. Cruz, 85 Phil. 577 (1950).

^[65] People vs. Llanera, L-21604-6, May 25, 1973, 51 SCRA 48; People vs. Dayug and Bannoisan, 49 Phil. 423 (1926); U.S. vs. Rivera, 41 Phil. 472 (1921).

^[66] TSN, Recrods, September 16, 1971, pp. 127-128.

^[67] "Supplementary Extrajudicial Statement of Bienvenido Quintos."

^[68] "Extrajudicial Statement of Benjamin Ong," Exhibit "N", Records, September 1, 1971, p. 41.

^[69] Ibid, p. 45.

^[70] TSN, Records, September 17, 1971, pp. 2-8.

^[71] People vs. Hanasan, L-25989, September 30, 1969, 29 SCRA 534; People vs. Sarmiento, L-19146, May 31, 1963, 8 SCRA 263; People vs. Bautista, 79 Phil. 652 (1947).

^[72] 86 Phil. 534, 539 (1950).

^[73] Brief for the Appellant Benjamin Ong, pp. 121-123, 124.

^[74] "Petition for New Trial and/or to Consider Case as Simple Murder," Rollo, p. 188.

^[75] TSN, Records, September 22, 1971, pp. 3, 41-47.


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