For the killing of Marciana Garcia in the morning of April 24, 1967, inside her stall at the Public Market of Binalonan, Pangasinan, a complaint for murder was filed on June 23, 1967, in the Municipal Court of Binalonan, Pangasinan, against Jose T. Orpilla, alias "Totoy" and Jesus Torio.^[1]

After the preliminary investigation, the Municipal Court on August 7, 1967 remanded the case to the Court of First Instance of Lingayen, Pangasinan, for further proceedings.^[2] A reinvestigation was conducted by the prosecuting fiscal who found out that there existed a prima facie case for Robbery with Homicide against both accused Orpilla and Jesus Torio.^[3] An information dated January 15, 1968 for Robbery with Homicide was filed, as follows:

"The undersigned, after having conducted a preliminary investigation under the provisions of existing laws, hereby accuses JOSE T. ORPILLA and JESUS TORIO of the crime of ROBBERY WITH HOMICIDE committed as follows:

"That on or about the 24th day of April, 1967 in the municipality of Binalonan, province of Panga­sinan, Philippines and within the jurisdiction of this Honorable Court, the above named accused, cons­piring together and mutually aiding one another, with violence against and intimidation of person and with intent of gain, did then and there, wilfully, unlaw­fully and feloniously take, rob and carry away with them P1,860.00 cash, two rings and two pairs of err­ings valued at P3,500.00 and Spanish coins valued at P500.00 with a total value of FIVE THOUSAND EIGHT HUNDRED AND SIXTY PESOS (P5860.00) belonging to Marciana Garcia against her will and consent and to her damage and prejudice in the aforesaid amount of P5,860.00; and that on the occasion and by reason of said robbery and in furtherance thereof, the above named accused, pursuant to the conspiracy aforementioned and under the circumstances above narrated, with intent to kill did then and there, wilfully, un­lawfully and feloniously attack, assault and stab the offended party Marciana Garcia, thereby inflict­ing upon her a fatal incised wound in the neck which caused her death.

"Contrary to Art. 294 par. 1 of the Revised Penal Code."^[4]

After trial, the lower court promulgated its decision dated April 30, 1969, convicting both the accused, with dispositive portion as follows:

"WHEREFORE, finding both accused Guilty beyond reasonable doubt of the crime of Robbery with Homicide charged in the information and in view of the absence of any mitigating or aggra­vating circumstances, both accused are hereby sentenced to suffer the penalty of Life Imprison­ment (Reclusion Perpetua) and to indemnify the heirs of the deceased Marciana Garcia, the sum of P13,860.00, without subsidiary imprisonment in case of insolvency and to pay the costs.

"SO ORDERED."^[5]

Both accused appealed from the decision of the trial court.^[6] Accused Jose T. Orpilla was granted temporary liberty under bail bond pending appeal.^[7]

After this case was submitted for decision per resolution dated January 28, 1971, by this Court,^[8] and after several requests for early decision by accused-appellant Jesus Torio^[9] he was allowed to withdraw his appeal per resolution of this Court on July 1, 1978.^[10]

The version of the prosecution is as follows:

Marciana Garcia, a 68-year old, married woman was discovered dead in the morning of April 24, 1967 at the kitchen of her stall situated inside the Public Market of Binalonan, Pangasinan.^[11]

The Municipal Health Officer, Dr. Angel Rosario, conducted the post mortem examination on the cadaver of the deceased right inside her stall at about 10:45 a.m. that same morning.  He stated that she must have been dead for about an hour, more or less.  He also found that the cadaver was not yet in rigor mortis.^[12]

The deceased was first seen by Matias Grafite, a jueteng collector, when he peeped inside the victim's store to get her bet in the jueteng.  He saw her lying flat on her back on the cement floor, dead, with a washing basin (batya) placed over her stomach.  Grafite went immediately to inform Patrocinio Garcia, a sister of the victim, who had a store inside the public market.  Patrocinio Garcia, upon being informed; rushed to the stall of the victim to­gether with Grafite.  Patrocinio then removed the basin over the body.  This revealed her sister's stomach because her (patadyong) skirt was pulled down while her chemise was raised up.  She also examined the waistline of the deceased for the belt which the latter used to keep her money and jewelry on her person, but the same was missing.^[13]

Dr. Angel Rosario, the municipal health officer, arrived.  He called for a photographer who took pictures of the victim and the surrounding area.^[14]

He reduced into writing the result of his autopsy,^[15] with these findings:

"Deep incised wound thru and thru, from left lateral to the right lateral side of neck.  Point of entrance 2.8 cm., left lateral side neck, just below adam's apple directed hori­zontally to right of neck point of exit 2 cm. at right side of neck.  Posterior upper trachea and left jugular vein was incised.

"Cause of death:

a.      Asphyxia

b.      Loss of blood, severe

c.      Stab wound, neck, thru and thru."

The victim used to live alone in her stall inside the public market of Binalonan where she was selling rice and corn derived from lands owned by her and her husband Jose Solis, located in Binalonan and San Manuel, Pangasinan.  Her husband, although residing in Dagupan City with his two daughters with the victim, used to go to Binalonan every morning on week days, except Sundays, and used to return to Dagupan City in the evening.^[16]

The week before April 24, 1967, the victim sold 40 cavans of clean rice at P46.50 per cavan, for the total amount of P1,860.00, which she kept in a belt she was wearing around her waist that morning of April 24, 1967, as was her wont, ever since there was a fire in Binalonan about a year prior to her death.^[17]

C.I.S.  Investigator Jose Fortich interviewed several witnesses who verbally told him they saw appellants Torio and Orpilla on that morning of April 24, 1967, enter the stall of the victim.  With that lead, Fortich investigated appellants.^[18]

During the investigation, accused Torio admitted in an affidavit,^[19] that about three days prior to the killing of the victim, appellant Jose Orpilla approached Torio and tried to convince the latter that they would rob the late Marciana Garcia because Orpilla was penniless and he needed money to buy the materials needed in his store, but Torio claimed he did not agree to the proposal.^[20]

According to Investigator Fortich, Orpilla verbally admitted his participation in the crime while they were riding in a public bus to Camp Crame, but Orpilla refused to put down in writing said admission when they reached Camp Crame.^[21]

The alleged confession of Orpilla, as narrated by Investigator Fortich, was that the plan to rob the victim Marciana Garcia was carried out on the morning of April 24, 1967, by appellants who entered at the backdoor when the deceased went out. When they gained entrance, they ransacked the place, but while doing so, the victim arrived.  Upon seeing appellants inside, victim tried to run and call for help, but appellant Torio grabbed her, held her hands, neck and mouth, while Orpilla stabbed her throat with a pointed ice-pick.  Thereafter, appellants came out thru the back door and entered the adjoining stall on the west owned by Orpilla.  Witness Laluan saw them coming out of the stall of the deceased.^[22]

On the strength of the evidence for the prosecution and dis­regarding the defense of alibi, the trial Court convicted the accused.

The version of the defense is as follows:

On April 24, 1967, at about 9:30 a.m. when the victim Marciana Garcia was slain, accused Jose Orpilla was on board Pan­tranco Bus No. 809, which left Binalonan at about 6:00 a.m., bound for Manila.  At about 12:51 p.m. of that day, Orpilla's time card at the Bureau of Census and Statistics in Manila showed that he punched in, indicating his half day presence in that Office in the afternoon.  Therefore, appellant Jose Orpilla could not have been in and around the vicinity of the scene of the crime between 9:30 a.m. and 10:00 a.m. of April 24, 1967, when the victim was slain.^[23]

On the aforementioned date when victim Marciana Garcia was slain, accused Jesus Torio was working as a house painter in Calumpang, Marikina, Rizal, and he could not have been in Binalonan, Pangasinan, on that morning of April 24, 1967.  Torio was in Bina­lonan on March 23, 1967 during the Holy Week when he was on vacation and after Binalonan, he went to see his mother at Baloan, La Union, where he stayed two days.^[24]

Accused Jose T. Orpilla denied the alleged verbal confession he made to Investigator Fortich inside a public bus that was boarded by them on their way to Camp Crame.^[25]

Accused Jesus Torio denied that he voluntarily and intelli­gently signed his alleged confession Exhibit "F", wherein he al­legedly stated that accused Jose Orpilla invited him to rob Marciana Garcia a few days before she was slain.^[26]

The conviction of both accused is primarily anchored on cir­cumstantial evidence as no witness was presented who actually saw the crime committed.  At best, the prosecution could present only a witness who allegedly saw both accused in the vicinity of the scene of the crime at about the time it was committed, and the alleged verbal confession of accused Orpilla and the recanted written confession of Torio, Exhibit "F".

Be that as it may, the determination of moral certainty in the guilt of the accused would primarily hinge on the credibility of the witness who allegedly saw and identified both accused in the vicinity of the scene of the crime and the strength of the alibi put up by both accused.

As to the evidence on the time of victim's death, the pro­secution established beyond doubt that the victim met her death after 9:30 a.m. of April 24, 1967.  On this score, prosecution witness Tommy C. Bolasoc testified that the recess in his school was at 9:30 a.m.^[27] He stated that on April 24, 1967, at 9:30 a.m. he went to the stall of the victim Marciana Garcia to ask from the latter the winning number of a jueteng bet given by Tommy to her before going to school, and Tommy saw Marciana Garcia still alive.^[28]

According to Dr. Rosario, who conducted the post mortem examination on the victim, Marciana Garcia must have been killed an hour or more before the autopsy at 10:45 a.m. of April 24, 1967, because rigor mortis had not yet set in and fresh blood was still flowing from the wound on the neck of the victim.  Decedent must have been killed at about 9:45 a.m. on April 24, 1967.

Market Collector and prosecution witness Garcia corroborated Tommy Bolasoc's statement when he stated that around 10:00 a.m. of April 24, 1967, Mr. Grafite shouted that Marciana was dead. ^[29] Even the prosecuting fiscal opined that victim was killed after 9:30 a.m. ^[30]

However, prosecution witness Timoteo Laluan claimed that in the morning of April 24, 1967, just after 8:30 a.m., he saw both accused Orpilla and Torio come out of the victim's stall.

Timoteo Laluan is from Pozorrubio, Pangasinan and not Binalonan where the crime was committed.  He and his wife have a stall in Baguio City where they sell vegetables.  Three days a week, on Mondays, Wednesdays and Saturdays, witness and his wife used to buy "talong", "ocra, and "ampalaya" from the Binalonan Public Market to be sold in Baguio City.  Binalonan, Pangasinan by bus, is more than two hours ride to Baguio City.

Witness Laluan stated that while standing on the other side of the street from victim Garcia's stall on April 24, 1967, in the morning he saw accused Torio come out of victim's stall followed by Orpilla, and both of them went to Orpilla's stall.  Not long afterwards, witness heard shouts that Marciana Garcia was killed.  He peeped through the door and saw the dead body of Marciana Garcia.  Then his wife arrived and they immediately boarded a jeep and proceeded to the plaza of Pozorrubio, where his wife waited for a bus going to Baguio City.^[31]

Witness Laluan, however, admitted that he did not know the names of both accused, showing that he was not familiar with them.^[32] Laluan also stated that he did not tell anybody else about his alleged seeing the two accused come out of the stall of the victim that morning.^[33] Laluan likewise stated that they left the market place of Binalonan about 15 minutes to 10:00 a.m. that morning of April 24, 1967.^[34]

It is immediately observable that Laluan could not be depended upon as a credible witness who allegedly saw the ac­cused Torio and Orpilla come out of the stall of the victim at about 8:30 a.m. of April 24, 1967, and immediately thereafter heard shouts that Marciana Garcia was dead, because the victim died according to prosecution's own evidence, after 9:30 that morning, whereas witness Laluan was sure it was 8:30 a.m. when he allegedly saw both the accused.  Besides, if Laluan's wife had to sell in Baguio City vegetables bought from Binalonan, Panga­sinan, (at least 2 hour's ride by bus) the couple would have left Binalonan at around 7:00 a.m. to reach Baguio City at about 9:00 a.m. to sell those vegetables.

We have serious doubts as to the actual presence of the witness Laluan in Binalonan on that morning of April 24, 1967, after 9:00 a.m.; and likewise his having seen the two accused on that occasion, not only because of the above stated reasons, but also because of his admitted failure to report to the authorities im­mediately what he allegedly saw.  In fact, when the complaint for murder was filed with the municipal court on June 23, 1967, Laluan was not even mentioned as a witness, belying his statement that he reported the incident to Investigator Fortich, who filed the information in the municipal court.  What increases Our doubt is witness Laluan's admission that he was not personally acquainted with the accused.  Furthermore, witness Laluan did not mention any­thing about Ben Custodio who according to the prosecution's version was one of the three perpetrators of the crime.  Ben Custodio was not included as an accused because he was killed while in P.C. custody.

Witness Laluan also stated that when he saw the two accused on that morning of April 24, 1967, both doors of victim's stall were still closed, but victim's own sister testified that at 8:30 a.m. victim's stall was already open and there were customers already.^[35]

The following circumstances cannot be ignored.  After the information was filed on January 7, 1968 in this case, the pro­secution presented evidence during the hearings of February 6, 7; March 11 and 12, 1968.  Investigator Fortich had been cross?examined and the hearing was scheduled for March 13, 1969.  The remaining evidence for the prosecution was on minor matters, when the trial court intimated to the prosecution and Investigator Fortich that the evidence for the prosecution was not sufficient to support conviction as what Fortich testified to was information allegedly gathered from persons who refused to testify.  Hence, the prosecution, to cover up the deficiency, presented witness Laluan, whose testimony cannot but be doubted.^[36]

The uncorroborated testimony of witness Laluan that he saw both accused leave the stall of the victim at 8:30 a.m. of April 24, 1967, cannot be given weight, as it runs contrary to prosecution's own evidence.  It is clear that the victim died after 9:30 a.m. and yet witness Laluan claimed that immediately after he saw both accused that morning, Matias Grafite discovered the victim already dead.  That uncorroborated circumstantial evidence is certainly not sufficient for conviction of the accused, specially when the evidence itself is in serious doubt.^[37] It is fundamental that to justify a conviction based on circums­tantial evidence alone, the inferences to be derived from the established circumstances must be inconsistent with any reasonable theory of innocence.^[38]

The allegation of Investigator Fortich that accused Orpilla verbally confessed to him while they were riding in a public vehicle on their way to Camp Crame, an alleged confession never placed in writing nor mentioned during the investigation, cannot be given much credibility.

We cannot ignore some circumstances tending to prove bias against the accused on the part of Investigator Fortich.  The latter could not identify the eyewitnesses he mentioned who allegedly saw the crime because of the lame excuse that they refused to execute written statements because they could not be given security.  He claimed he had documentary evidence to prove that accused Orpilla was absent from office the whole day of April 24, 1967, when he had none.  He even stated that Orpilla "punch in" on April 24, 1967 at 12:51 p.m.^[39]

Investigator Fortich also introduced as evidence Exhibit 1 allegedly signed by one Federico Mariano, a fictitious person never presented as witness, who claimed that accused Torio told the former that Torio with Ben Custodio and Orpilla were res­ponsible for the victim's death.  This exhibit was never identified.

Investigator Fortich also testified that he knew accused Orpilla did not punch his time record at 12:51 on April 24, 1967, because a woman watcher told him so, but that unidentified woman watcher never appeared as witness and allegedly disappeared according to Fortich.^[40]

This investigator also suppressed the May 26, 1967 written statement of accused Torio.  There were two statements made by the accused Torio.  The first, Exhibit "G", was executed on May 26, 1967.  The second, Exhibit "F", was executed on June 26, 1967.  Fortich tried to make it appear that the second statement was the one executed on May 26, 1967.^[41] The reason for the suppression must be the inconsistent statements appearing on both Exhibits "G" and "F".

As to the evidence for the defense, Exhibit I-Orpilla, proves that accused Orpilla timed in at his office at the Bureau of Census and Statistics in Manila on April 24, 1967 at 12:51 p.m. thus negating the possibility of Orpilla's presence in Binalonan after 9:30 a.m. of that same day.^[42]

The mere testimony of Investigator Fortich of the possibility that the time record might have been tampered with, unsupported by any concrete evidence that it was actually tampered with, cannot overcome the credibility of the documentary evidence which has in its favor the presumption of regularity of performance of official duties.

By and large, and for the reasons previously stated, We find it difficult to conclude that the requirements of evidence beyond reasonable doubt or moral certainty have been sufficiently met in this case.

WHEREFORE, the decision dated April 30, 1969 should be, as it is hereby REVERSED and SET ASIDE and another one entered ACQUITTING the appellant JOSE ORPILLA, alias "Totoy", of the charge against him.  The Clerk of Court is hereby directed to forward a copy of this deci­sion to the President of the Philippines, through the Ministry of Justice, for consideration of the propriety of extending to the other accused Jesus Torio, whose appeal had been withdrawn, the benefits of executive clemency.  With costs de oficio.

SO ORDERED.

Barredo, Abad Santos, De Castro, Ericta, and Escolin, JJ., concur.
Aquino, J., seedissent.

---

^[1] p. 1, Original Record, Criminal Case No. 22985, CFI, Pangasinan, Branch II.

^[2] p. 51, Id.

^[3] pp. 55 to 58, Id.

^[4] p. 59, Id.

^[5] pp. 374-375, Id.

^[6] p. 378, Id.

^[7] pp. 386-398, Id.

^[8] p. 261, rollo.

^[9] pp. 268-281, rollo.

^[10] p. 285, rollo.

^[11] Exh. "D", p. 2, Original Record' pp. 62-63, t.s.n., Feb. 7, 1967.

^[12] Exh. "D"; p. 5, t.s.n., March 11, 1968; p. 9, t.s.n., March 11, 1968.

^[13] pp. 62-64, t.s.n., Feb. 7, 1968; p. 5, t.s.n., Feb. 6, 1968; pp. 8-9, t.s.n., Feb. 6, 1968.

^[14] Exhibits "A", "B", "C", and "D", pp. 46-49, Original Record.

^[15] Exh. "D", p. 2, Original Record.

^[16] pp. 32-34, t.s.n., Feb. 6, 1968.

^[17] pp. 39-40, t.s.n., Feb. 6, 1968; pp. 30-37, t.s.n., Feb. 6, 1968; p. 42, t.s.n., Feb. 6, 1968.

^[18] pp. 23, 25, t.s.n., March 11, 1968.

^[19] Exh. "F-5", p. 25, Original Record.

^[20] p. 38, t.s.n., March 11, 1968.

^[21] pp. 30-31, 41, t.s.n., March 11, 1968.

^[22] pp. 31-32, t.s.n., March 11, 1968; p. 113, t.s.n., March 12, 1968; pp. 151-152, t.s.n., March 21, 1968; p. 151, t.s.n., March 11, 1968.

^[23] Exh. 5-Torio, pp. 134-135, Original Record; p. 40, t.s.n., Aug. 23, 1968; pp. 41-43, t.s.n., Aug. 23, 1968; Exh. 7-Orpilla, p. 130, Original Record; p. 341, t.s.n., Sept. 27, 1968; pp. 343-355, t.s.n., Sept. 27, 1968; pp. 17-22, t.s.n., Aug. 23, 1968.

^[24] pp. 229-232, t.s.n., May 2, 1968; pp. 305-308, t.s.n., Aug. 1, 1968; pp. 320-325, t.s.n., Aug. 1, 1968.

^[25] pp. 332-334, t.s.n., Sept. 27, 1968; pp. 340-341, t.s.n., Sept. 27, 1968.

^[26] pp. 268, t.s.n., May 28, 1968; pp. 269-271, t.s.n., May 28, 1968, pp. 280-281, t.s.n., May 28, 1968.

^[27] p. 15, t.s.n., June 21, 1968.

^[28] Exhibit 5-Torio.

^[29] pp. 34, 51, Feb. 27, 1968.

^[30] pp. 21-22, t.s.n., June 21, 1968.

^[31] pp. 148-155, t.s.n., March 21, 1968.

^[32] p. 151, t.s.n., March 21, 1968.

^[33] p. 166, t.s.n., March 21, 1968.

^[34] p. 194, t.s.n., March 21, 1968.

^[35] pp. 164, t.s.n., March 21, 1968; pp. 22-23, t.s.n., Feb. 6, 1968.

^[36] p. 122, t.s.n., March 12, 1968; pp. 122-123, t.s.n., March 12, 1968.

^[37] Section 5, Rule 133, Rules of Court.

^[38] 4 Jones on Evidence, 5th Ed., pp. 1860-61.

^[39] pp. 103-104, t.s.n., March 12, 1968; Exh. 3-Orpilla, p. 85, rollo.

^[40] Exh. 3-Orpilla, pp. 108-109, rollo, Exh. 3-Orpilla, pp. 111-112, rollo.

^[41] pp. 34-35, t.s.n., March 11, 1968.

^[42] Section 24, Rule 132, Rules of Court.

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