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VOL. 60, OCTOBER 28, 1974 303

People vs. Tumalip
*
No. L-28451. October 28,1974.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.POLICARPO TUMALIP alias Carpo, ANGELITO

BOSQUE aliasHeling, PEDRO FULLANTE alias Pedring, and ANTONIO BUENAVISTA, (At Large),
defendants-appellants.

Criminal Law; Conspiracy; Necessity to establish logical relationship between the commission of the crime and the
supposed conspirators.—Conspiracy presupposes the existence of a preconceived plan or agreement and in order to establish
the existence of such a circumstance, it is not enough that the persons supposedly engaged or connected with the same be
present when the crime was perpetrated. There must be established a logical relationship between the commission of the
crime and the supposed conspirators, evidencing a clear and more intimate connection between and among the latter, such as
by their overt acts committed in pursuance of a common design.
Same; Same; Degree of proof required to establish conspiracy.—Considering the far-reaching consequences of criminal
conspiracy, the same degree of proof required for establishing the crime is required to support a finding of its presence, that
is, it must be shown to exist as clearly and convincingly as the commission of the offense itself.
Same: Nature of liability; Principals by reason of conspiracy;Necessity to establish that the conspirator performed an
overt act in furtherance of the conspiracy.—To hold an accused guilty as coprincipal by reason of conspiracy, it must be
established that he

_______________

* SECOND DIVISION.

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ANNOTATED

People vs. Tumalip

performed an overt act in furtherance of the conspiracy either by actively participating in the commission of the crime,
or by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy.
Same; Same; Accomplices; Accused whose acts and presence not necessary mid essential to the commission of the
crime considered guilty as accomplices only.—Where the acts of the accused who, other than being present, and perhaps,
giving moral support to the principal accused, cannot be said to constitute a direct participation in the acts of execution and
their presence and company was not necessary and essential to the perpetration of the crime, such accused may only be
considered guilty as accomplices.
Same; Murder; Evident premeditation; Evident premeditation must be evident and not merely suspected.—
The circumstance of evident premeditation must be evident and not merely suspected by which is meant "a period sufficient
in a judicial sense to afford full opportunity for meditation and reflection and sufficient to allow the conscience of the actor to
overcome the resolution of his will if he desires to harken to its warnings."
Same; Same; Treachery; Sudden and unexpected attack with a deadly weapon constitutes treachery.—The attack on all
the victims was treacherous because it was done with a deadly weapon and was sudden and unexpected.
Evidence; Credibility of witnesses; Inconsistency in testimony of witnesses on minor details may be considered as badge
of veracity.—Ratherthan detract from their credibility, such variance on a minor detail may be considered as a badge of.
veracity, considering that witnesses react differently on what they see and hear depending upon their situation and state of
mind.
Same; Same; Early identification of the accused; Case at bar.—The early identification of accused by the prosecution
witnesses as the companions of the other accused in perpetrating the heinous offenses, which identification led to their
prompt arrest, bespeaks of their spontaneity and veracity.
Same; Part of the res gestae; Statement made almost immediately after the startling occurrence; Case at bar.—A few
hours after he was shot and suffering from the agony of his injuries, the victim positively identified the accused as the group
that fired at them. This statement, although not an ante-mortem declaration may.

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however, be considered as part of the res gestae, for it was made almost immediately after the startling occurrence.
Same; Extra-judicial statement of accused; Circumstances which show that statement made voluntarily; Case at bar.—
The accused never complained about his alleged maltreatment to the Municipal Judge when he confirmed under oath the
veracity of the declaration. Apart from this, the signature of the said accused appearing in the statement was written with a
firm and steady hand, which, otherwise, would not have been the case if the person affixing his signature thereon were
nervous and under emotional stress as a result of any maltreatment. What is more significant is the fact that the extrajudicial
statement contains exculpatory facts tending to show that the declarant was a mere innocent bystander. Certainly, if it were
not the voluntary statement of the accused but a concoction of the police authorities, it is quite incredible that the latter would
be more interested in exculpating the declarant rather than in proving clearly is criminal complicity.
Same; Alibi; Defense of alibi weak in the face of positive and convincing identification of the accused.—In the face of
the positive and convincing identification of the accused as those who participated in the commission of the crimes, their
denial and alibi are worthless.

APPEAL from a judgment of the Court of First Instance of Abra.

The facts are stated in the opinion of the Court.
ANTONIO, J.:
Appeal from the judgment of the Court of First Instance of Abra in Criminal Case No. 337 sentencing
appellants Policarpio Tumalip alias Carpo, Angelito Bosque alias Heling, alias Hilario Bosque, and Pedro
Fullante alias Pedring, to suffer each, triple life imprisonment, for the murder of Ambrocio Tierra, Felino
Callejo and Antenidoro Callejo, an indeterminate penalty ranging from eight (8) years and one (1) day of prisión
mayor, as minimum. to fourteen (14) years and eight (8) months of reclusion temporal, as maximum, for the
frustrated murder committed on Abdon Callejo, and an indeterminate penalty ranging from two (2) years and
four (4) months of prisión correccional, as minimum, to eight (8) years of prisión mayor, as maximum, for the
attempted murder of Pedro Callejo, to indemnify, jointly and severally, each of the
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heirs of Ambrocio Tierra, Felino Callejo and Antenidoro Callejo in the amount of six thousand pesos
(P6,000.00) without subsidiary imprisonment in case of insolvency and to pay the costs.

I.

The record discloses the following f acts:

At about eight o'clock in the morning of September 10, 1961, the brothers Antenidoro, Felino, Abdon, and
Pedro, all surnamed Callejo, of Barrio Libtec, Dolores, Abra, left their barrio to buy rice and other household
necessaries, in the town of Lagangilang, the day being Sunday and a market day in the latter municipality. After
walking about seven (7) kilometers they arrived in Lagangilang at about ten o'clock that same morning. In the
market place of Lagangilang, the Callejo brothers met Antonio Buenavista, together with appellants Policarpo
Tumalip and Angelito Bosque. Buenavista inquired from Antenidoro Callejo if it was true that he was the
paramour of Segundina Barcena, wife of Pedro Fullante. Antenidoro denied this accusation explaining that such
imputation had already been cleared up at a meeting in the house of barrio lieutenant Federico Buenavista of
Talugtog, Dolores, Abra. Buenavista, however, insisted saying, "You still deny fool?" to which Antenidoro
answered: "No, Manong." Appellants Bosque and Tumalip then intervened, saying: "We better give them." The
four Callejo brothers then retreated to the store of Julian Atmosfera, but the three followed them. Antonio
Buenavista thereupon challenged them to make a move if they were men, but Abdon Callejo replied that they
had no intention of picking up a quarrel. Abdon declared that he heard Tumalip and Bosque say, "We better fetch
now Pedro Fullante," then the three (Buenavista, Tumalip and Bosque) went away.
Apprehensive because of the threatening attitude of the three men, the Callejo brothers, instead of walking
home, decided to take a bus to Talugtog on their way to their barrio. It was already between three to four o'clock
in the afternoon when they got off at Talugtog. As they were walking towards Barrio Libtec, they spotted the
three appellants and Antonio Buenavista several meters ahead of them on the trail. Antonio Buenavista was
carrying a carbine, while Policarpo Tumalip, Angelito Bosque and Pedro Fullante were each armed with a bolo.
Fearful for their lives, the Callejo brothers instead of
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proceeding towards their home, sought refuge in the house of Ambrocio Tierra, a member of the barrio council
of Talugtog. The three appellants and Antonio Buenavista, however, saw and followed them. It was while the
Callejo brothers were in the house of Tierra that Antonio Buenavista, who stationed himself from an elevated
position near a bamboo grove northeast of the house, fired at the house with his carbine. The initial burst of
gunfire was followed after some interval by successive shots from the carbine. Instantly killed by the ensuing
fusillade were Ambrocio Tierra, Antenidoro Callejo and Felino Callejo. Felino Callejo's body was found
sprawled on top of the landing where the ladder leading to the house was situated. The body of Antenidoro
Callejo was lying on the southern portion of the house, in the ante-sala, while that of Ambrocio Tierra was in the
middle of the sala. Abdon Callejo was also hit but managed to crawl to the main part of the house. Pedro Callejo
was able to escape unscathed and succeeded in reaching the municipal building of Dolores where he reported the
shooting to the police authorities. According to
Abdon, after he heard the first gun report, he saw Antonio Buenavista, firing at them from a bamboo grove
northeast of the house, with Tumalip, Bosque and Fullante crouching at his side. Six (6) empty carbine shells
were later found by the police authorities in front of the bamboo grove, twenty-eight (28) meters northeast of the
house of Ambrocio Tierra. Abdon Callejo also declared that after the shooting, appellants Policarpo Tumalip,
Angelito Bosque and Pedro Fullante, armed with bolos, ascended the ladder of the house and upon seeing the
prostrate forms of the victims, Pedro was heard to remark, "They are all dead." After those words were uttered,
Antonio Buenavista called for them and thereafter the four men left the premises. According to Abdon Callejo,
he escaped further harm by feigning to be dead when the three appellants went up the house.
Among those who arrived at the scene of the incident and who gave succor to the wounded Abdon were
Venancio Atmosfera and Lino Talingden. It was they who brought Abdon to the hospital aboard a Philippine
Rabbit Bus.
At the hospital, a constabulary soldier investigated Abdon Callejo about the shooting. Due to the seriousness
of his wounds it was at f irst thought that his declaration that evening would be his ante-mortem statement
(Exhibit "F"). The
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statement of Pedro Callejo (Exhibit "1") was also taken by PC Sgt. Eduardo Malañgen the day following the
commission of the crime.
According to the autopsy conducted on the bodies of the deceased Ambrocio Tierra, Antenidoro Callejo and
Felino Callejo, the three died as a result of gunshot wounds, severe hemorrhage and traumatic shock (Exhibits
"C", "H", and "A", respectively). Abdon Callejo, as a result of his gunshot wounds, was hospitalized for fourteen
(14) days (Exhibit "D"). Dr. Jose M. Buhain, resident physician at the Abra Provincial Hospital, declared that if
he had not been brought to the hospital soon enough, he would also have died from loss of blood as well as
possible infection and tetanus.

II

The killing of the three victims, Antenidoro Callejo, Felino Callejo, and Ambrocio Tierra, as well as the
wounding of Abdon Callejo, as a result of the shots fired by Antonio Buenavista, who is at large, is not disputed.
At issue is the criminal participation of the three appellants, it being the claim of appellants Bosque and Tumalip
that they were innocent bystanders during the shooting, while appellant Fullante insists that he was not present at
the scene of the incident.
According to appellants Tumalip and Bosque, they could not have been with Buenavista at the time he
accused Antenidoro of being the paramour of Fullante's wife at Lagangilang, as, on that morning of September
10, 1961, they were grazing their carabaos north of the barrio of Piedad, in Dolores, Abra. At about noon, they
tied their animals and went home for lunch and had a short nap. Later, at about two o'clock in the afternoon, they
went to the place where their animals were tied and it was on that occasion when Antonio Buenavista, who was
in fatigue uniform and armed with a gun, invited them to join him in a picnic of goat's meat in the house of
Ambrocio Tierra. On the way to the place, Buenavista told them to ascertain whether their companions were
already in Tierra's house. Bosque and Tumalip went ahead and upon seeing some persons in the house, informed
Buenavista of the presence of persons in Tierra's place. All of a sudden, Buenavista fired his gun towards the
direction of the house of Ambrocio Tierra. Bosque and Tumalip, claiming that they were afraid, ran home and
reported the matter to their parents. Both denied having
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entered the house of Ambrocio Tierra after the shooting. Appellant Pedro Fullante likewise denied having been
in Lagangilang on the morning of September 10, 1961 and in having participated in the killing of the victims.
Fullante declared that at about four o'clock in the afternoon of September 10, 1961, while he was working in his
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farm in Talugtog, Dolores, Abra, he saw Antonio Buenavista pass by armed with a carbine. A few hours
thereafter, he heard gun detonations. He went home to inquire from his mother where the shooting occurred. His
mother told him that it was his duty as a barrio sub-lieutenant to investigate. Consequently, he proceeded to the
house of Ambrocio Tierra where he say the bodies of Antenidoro Callejo, Felino Callejo, and Ambrocio Tierra.
Upon noticing that Abdon Callejo was wounded, he brought him aboard a Philippine Rabbit Bus to the hospital
at Bangued. He impugned his extra-judicial statement before the police authorities (Exhibit "1-Fullante"),
claiming that the same was executed as a consequence of the maltreatment inflicted upon him by Police Chief
Claudio Castillo of Dolores, Abra.
Florendo Pilotin, testifying for the defense, declared that it was Antonio Buenavista who had a heated
argument with Felino and Teodoro (Antenidoro) Callejo about politics near the crossing south of the house of
one, Jesus Villamor, in Lagangilang. The discussion became so heated that one, Julian Atmosfera, allegedly had
to pacify them.
Irineo Balonzo and Justina Balonzo, wife of the deceased Ambrocio Tierra, also testified for the defense.
Irineo Balonzo, who is also known as Arsenio Balonzo, testified that he was inside the house of Ambrocio Tierra
between the hours of three and four o'clock in the afternoon of September 10, 1961 when the Callejo brothers
arrived; that "Doro" Callejo and "Lino" Callejo informed Tierra that while they were on their way to Libtec, they
saw some persons trying to ambush them, consequently they came to him to borrow his gun, but Tierra said he
had none; that Felino Callejo sat at the topmost rung of the ladder while Antenidoro, Abdon, and Pedro Callejo
remained downstairs; that all of a sudden, he heard gun reports, and he lay immediately on the floor with the
child he was then holding; that "Doro" Callejo, "Lino" Callejo and Ambrocio Tierra were immediately killed,
while Abdon was still able to enter the house; and that after the firing had
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subsided, several persons arrived, one of whom was appellant Pedro Fullante, who was sent to get a ride to bring
the wounded to the hospital. This witness, however, admitted that he never related immediately the incident to
the police authorities as he was in a temporary state of shock. It was only on September 25,1961 when he was
able to give a statement to the Assistant Provincial Fiscal on the matter. Justina Balonzo also testified that she
heard gun reports but she did not notice where they came from. She denied, however, that the three appellants
came up the house to verify if the victims were already dead. She said that Fullante only arrived after the
shooting to help the wounded. On cross-examination she admitted that after the death of her husband she
abandoned her conjugal home to live without benefit of marriage with Celedonio Aldaca in Manila.
Abdon Callejo, on rebuttal, denied that Pedro Fullante was among those who brought him to the hospital,
claiming that those who took him there were Domingo Atmosfera, Aning Alcantara and his brother, Pedro
Callejo.

III

The incident at Lagangilang on Sunday morning, September 10, 1961 when Antonio Buenavista, in the presence
of appellants Tumalip and Bosque, accused Antenidoro Callejo of being a paramour of his niece, Segundina
Barcena, appears to be sufficiently established by the evidence. Appellants in their attempt to impugn Pedro
Callejo's credibility contend that in Pedro's sworn statement of September 11, 1961, before Sgt. Eduardo
Malañgen of the Constabulary (Exhibit "1-Bosque & Tumalip) he only mentioned the names of Antonio
Buenavista and Pedro Fullante as the two who had a verbal altercation with the Callejos in the morning of
September 10, 1961. It is noteworthy, though, that Pedro Callejo was referring only to the identity of the persons
who accused Antenidoro, and not to the identity of all the persons present at the time when Buenavista
confronted Antenidoro. Such statement does not therefore inveigh against the fact that Tumalip and Bosque were
also present during that incident. The testimony of Jesus Villamor that he saw only Antonio Buenavista
quarrelling with one of the Callejo brothers near the market at Lagangilang that Sunday morning, certainly does
not entirely exclude the possibility that appellants Tumalip and Bosque were also present. For Villamor himself
admitted that while Buenavista
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was quarrelling with one of the Callejo brothers, "there were many people roaming around them" as it was
market day. It is true that there is an apparent inconsistency between the testimony of Pedro Callejo and that of
his brother Abdon on the presence of appellant Pedro Fullante during that quarrel. For while Pedro Callejo
testified that Fullante was present and even accused his brother, Antenidoro, of telling a lie when the latter
denied the imputation, his brother, Abdon Callejo, on the other hand, made no mention of appellant Fullante's
presence. This variance in their testimonies is of no moment, considering that there were many people near
Buenavista when he unleashed his verbal tirade at Atenidoro, and it is probable that Abdon might have failed to
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notice the presence of Pedro Fullante. Rather than detract from their credibility, such variance on a minor detail
may be considered as a badge of veracity, considering1
that witnesses react differently on what they see and hear
depending upon their situation and state of mind. Both Pedro Callejo and Abdon Callejo were, however,
positive that Antonio Buenavista, who was then armed with a carbine, and the three appellants, who were all
armed with bolos, were waiting for them at about four o'clock in the afternoon of September 10, 1961 when they
were walking towards Barrio Libtec; that realizing the danger to their lives if they continued on their way, the
four brothers sought refuge in the house of Ambrocio Tierra, a member of the barrio council of Talugtog; that
the four men still followed them; that appellants Tumalip and Bosque even tried to verify their presence in the
house of Tierra and it was only after they were certain that the Callejos were there that Antonio Buenavista fired
his automatic carbine towards the house of Tierra; that while Buenavista was firing his gun, the three appellants
—Tumalip, Bosque and Fullante—were crouching by his side. According to Abdon Callejo, after he was
wounded he crawled to the interior of the house and it was at that juncture when appellants Tumalip, Bosque and
Fullante with drawn bolos went up the house, and upon reaching the stairs Pedro Fullante remarked: "They are
all dead," then he heard Antonio Buenavista call for them: "You come down already." After that they left the
premises.

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1 People vs. Pascual, No. L-4801, June 30,1953; People vs. Mones, No. L-2029, May 6,1950.

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There are other circumstances which strongly indicate the spontaneity of the identification of appellants by these
witnesses: (1) A few hours after he was shot and suffering from the agony of his injuries, Abdon Callejo.
positively identified Antonio Buenavista, Policarpo Tumalip and another one from "the same barrio of Policarpo
Tumalip," as the group that fired at them.

"Q — Who were they who shot you?

A — They are Antonio Buenavista, Policarpo Tumalip and
another one, I don't know his name 1*who is from the
same barrio of Policarpo Tumalip." (Exhibit "F").

This statement, although not an ante-mortem declaration, may, however, be considered as part of the res
gestae, for it was made almost immediately after the startling occurrence. (2) Pedro Callejo, as early as
September 12, 1961, declared under oath before the Justice of the Peace of Dolores, Abra, on the fact that
Antonio Buenavista and the three appellants—Tumalip, Bosque and Fullante—were the ones responsible for the
attack made upon his brothers and Ambrocio Tierra on the afternoon of September 10,1961.

"Q — What place did they stay to shoot you if you know?
A — On the northeast of the house of Ambrocio Tierra,
sir.
Q — Who shot you?
A — Antonio Buenavista, stood near the bamboo grove in
a position with his carbine aimed at us, then he shot
us followed with a volley of gun fire, and Policarpo
Tumalip, Pedro Fullante and Angelito Bosque stayed
near him, Pedro Fullante on the right side, and
Policarpo Tumalip on his left side, also Angelito
Bosque sat behind him.
Q — Where were your brothers, Abdon, Felino,
Antenidoro, Ambrocio Tierra and also you when
there was gun fire and the sound of gun fire coming
from the place where Antonio Buenavista was?
A — Felino Callejo was sitting on the stair of the house,
Antenidoro Callejo was standing near the stair facing
my elder brother Felino toward the south, my
younger Brother Abdon was also standing facing
Felino, Ambrocio Tierra was then making eyeglasses

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for fishing, at the door of their house and myself was

facing a bamboo grove where these people who shot
us stayed at the east side of the house where we
stayed.

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1* Appellant Angelito Bosque is from the same barrio as that of Policarpo Tumalip.

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Q — What happened after the sound of gun fire, if any?

A — I saw my elder brother Felino, lying near the stair, and
my elder brother Antenidoro went up the stair, fell
and lie down on the bangzal (anteroom) of the house,
Ambrocio Tierra went inside the house, Abdon was
bent to the ground near the stair and then went up
inside the house, and when I have seen my brothers
lying down, I lie down myself on my belly near the
house, and when there is no more sound of gun fire, I
ran coming to this Municipal Building of Dolores,
Abra, and I reported all that happened to us.
xx xx xx xx xx
Q — Do you know what is the cause why Antonio
Buenavista, Policarpo Tumalip, Pedro Fullante and
Angelito Bosque shot you?
A — They accused my elder brother Antenidoro Callejo, to
be the paramour of Segundina, the wife of Pedro
Fullante, the reason why they shot us." (Exhibit "1-
Bosque & Tumalip")

The early identification of appellants by the prosecution witnesses as the companions of Antonio Buenavista in
perpetrating 2these heinous offenses, which identification led to their prompt arrest, bespeaks of their spontaneity
and veracity.
In the face of the positive and convincing identification of appellants as those who participated in the
commission of the crimes in the case at bar, their denial and alibi are worthless. For one thing, appellants
Tumalip and Bosque admitted their presence at the scene of the shooting, although they claimed that they joined
Buenavista unaware of his criminal intention. This claim is unworthy of credence. It is rather highly improbable
that they would have joined Buenavista, knowing that he was armed with an automatic carbine, without even
asking him why he was armed, considering that they were allegedly going to a picnic. Besides, why should
Buenavista bring the two appellants with him to the place where he was going to commit a crime unless the two
had a previous understanding with him on the matter. Obviously, Buenavista did not bring the two appellants just
to enable the latter to witness his criminal act. As regards appellant Pedro R. Fullante, his denial on the witness
stand on his participation is contradicted by his admissions contained in his sworn statement on September 11,
1961 before the Justice of the Peace of Dolores, Abra. In that statement, he admitted that he

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2 People vs. Corpus, 107 Phil., 48,

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was with appellants Bosque and Tumalip, together

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with Antonio Buenavista, when the latter shot the

victims.
"Q — Why are you here now in the Municipal Building, in
the office of the Chief of Police of Dolores, Abra?
A — I have come to give a statement of the truth of what I
have witnessed in the shooting of Ambrocio Tierra,
Teodoro Callejo, Felino Callejo and Abdon Callejo
by Antonio Buenavista, Policarpo Tumalip and
Angelito Bosque in the house of Ambrocio Tierra in
Barrio Talugtog, Dolores, Abra, yesterday September
10,1961.
Q — Give all what you know how Teodoro Callejo,
Ambrocio Tierra, Felino Callejo and Abdon Callejo
were shot?
A — At around the hour of 2:30 o'clock in the afternoon
of September 10, 1961, I was near my ricefield
grazing my carabao, not very long, Policarpo
Tumalip, Angeling Bosque, Antonio Buenavista
approached where I was, and Policarpo Tumalip
said: 'We were almost killed by Teodoro Callejo,' and
Antonio, also said, 'Doro, is there', and what I
answered, They are not there uncle.' (Tata) and he
again said, 'Are you telling a lie.' and he immediately
followed with a statement, 'You follow us and see
them.' That way I followed them asfar as near the
place east of our house, and Antonio Buenavista,
sentAngeling Bosque, and Policarpo Tumalip to see
and verify where isTeodoro Callejo, and not very
long Angeling Bosque and Policarpo Tumalip
returned to where we were and informed us that they
were near the house of Ambrocio Tierra, and
Antonio Buenavista, who is armed with a carbine at
once told me, "Let's go Angeling, Carpo, to shoot
them, and you Pedring, you stay in a place not far
from me, you see if there are people there, because, I
was afraid I obeyed what he asked me to do and if I
do not follow, he will shoot me.
Q — What did Antonio Buenavista, Angeling Busque and
Policarpo Tumalip do?
A — Antonio Buenavista stood up and shoot Felino
Callejo, who was sitting in the place of the stair and
the anteroom (bangzal) was the place were his other
brothers were when the sound of a rapid fire came
from the gun held by Antonio Buenavista, and after
the shooting they ran away to the east, I also went
away to see my cow and carabao at the place where I
left them to graze.
Q — Where did Antonio Buenavista place himself to
shoot Teodoro Callejo, Felino Callejo, Ambrosio
Tierra and Abdon Callejo and what is their relative
position at the time they were shot?
A — On the northeast of the house of Ambrosio Tierra,
and north of my house.
Q — How many meters away is Antonio Buenavista, in
shootingTeodoro Callejo, Felino Callejo, Ambrosio
Tierra and Abdon Callejo?
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A — More or less twenty (20) meters, sir.

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Q — Are you related to Antonio Buenavista?

A — I am not related to him, but he is the uncle of my wife
Segundina Barcena,
Q — Are you holding any position in your barrio, if any?A
A — 2nd barrio lieutenant of Barrio Talugtug, Dolores,
Abra.
Q — You stated that you followed, what is also your
weapon?
A — I am not armed, sir.
Q — What is your participation, if any?
A — I did not do anything against those who were killed,
and that now, I have come to give a statement of the
truth of what I have witnessed these three, namely:
Antonio Buenavista, Angeling Bosque and Policarpo
did."
xx xx xx xx xx

(Exhibit "1-Fullante").
It is true that appellant Fullante later repudiated said extrajudicial statement (Exhibit "1-Fullante") by
claiming that he was maltreated by the Chief of Police of Dolores, Abra, and that he signed the same after Sgt.
Eduardo Malañgen held his head and bumped it to the table saying "You sign that now and nothing will happen
to you." It should be noted, however, that Fullante never complained about his alleged maltreatment to the
Municipal Judge when he confirmed under oath the veracity of said declaration. Apart from this, as observed by
the trial court, the signature of said appellant appearing in Exhibit "1-Fullante" was written with a firm and
steady hand, which, otherwise, would not have been the case if the person affixing his signature thereon were
nervous and under emotional stress as a result of any maltreatment. But what is more significant is the fact that
the extra-judicial statement contains exculpatory facts tending to show that Pedro Fullante was a mere innocent
bystander. Certainly, if they were not the voluntary statement of said appellant but a concoction of the police
authorities, it is quite incredible that the latter would be more interested in exculpating the declarant rather than
in proving clearly his criminal complicity. According to appellant Fullante, he was arrested by the Chief of
Police of Dolores and P.C. Sgt. Eduardo Malañgen at about sunset, just a few hours after the slaying of the the
three victims. This circumstance shows that Fullante was immediately identified as one of the perpetrators of the
offense by the witnesses.
Appellants place much reliance on the testimony of Irineo Balonzo and Justina Balonzo, that said witnesses
did not see
316

316 SUPREME COURT REPORTS ANNOTATED

People vs. Tumalip

appellants enter the house of Ambrocio Tierra immediately after the shooting for the purpose of verifying
whether or not the victims were already dead. It must be noted that the aforesaid declaration of Irineo Balonzo is
inconsistent with his sworn statement before Special Counsel Montero of the Provincial Fiscal's Office of Abra,
dated September 25, 1968 (Exhibits "G" to "G-1"), wherein he stated, inter alia, that when the Callejo brothers
were about to leave, he heard successive gun reports coming from northeast of the house; that Doro and
Ambrocio Tierra shouted "We are dying!"; that immediately he lay down on the floor face downward; that after
the firing stopped, he raised his head to see whether anyone was hit, and he saw Felino lying prostrate, Doro was
lying sidewise and so with Ambrocio Tierra; while Abdon Callejo entered to seek refuge inside the house and
lay down on the eastern corner of the house; that since there was no noise from Felino Callejo, Antenidoro
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Callejo and Ambrocio Tierra, he went to see what happened to them, and saw them already dead; that not long
after he saw Pedro Fullante, Policarpo Tumalip and Angelito Bosque approaching, followed by Antonio
Buenavista, who remarked that they will kill the victims if they were not yet dead; that Policarpo, Pedro and
Angelito were armed with bolos and went near the victims; that he heard Antonio Buenavista and Pedro Fullante
saying "Stab those victims who are still alive". It is true that Irineo Balonzo tried to deny the execution of this
sworn statement, but his evasive, ambiguous and even uncertain answers to the questions of the prosecuting
fiscal and by the court regarding the aforesaid statement only served to underscore the complete unreliability of
his denial. As to Justina Balonzo, it must be recalled that on the date she testified for the defense on July 31,
1967, she was already living, without benefit of marriage, with another man. While she claims that she did not
see Pedro Fullante enter their house together with Bosque and Tumalip immediately after the shooting, her
conduct during the investigations shows that such a claim is devoid of spontaneity and sincerity. As the trial
court observed, if what Justina Balonzo said in court regarding the incident were true, she could have presented
herself without delay before the police authorities, the Provincial Fiscal, or the Municipal Judge of Dolores,
Abra, after knowing that appellant Pedro Fullante was already arrested and detained for the death of her
husband, and not wait for more
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VOL. 60, OCTOBER 28, 1974 317

People vs. Tumalip

than five years and after the defense counsel, Atty. Jeremiah Zapata, had approached her to tell this story, It is
very evident that such claim is a mere afterthought, for if it were true that she was an eyewitness of the incident,
her statement would certainly have been taken by the police at the time they were investigating the case. As
admitted by her, however, she was not even questioned by the police. The trial court was therefore justified in
not giving much weight and credence to the testimonies of these witnesses.

IV

The next question that confronts the Court is whether or not conspiracy among the accused existed. It is evident
that only Pedro Fullante and Antonio Buenavista had strong motives to go after Antenidoro Callejo. Pedro
Fullante, as husband of Segundina Barcena, was naturally infuriated over the report that his wife was the
paramour of Antenidoro Callejo. It is highly probable that to avenge such a dishonor, he must have prevailed
upon Antonio Buenavista, uncle of Segundina, to assist him in the elimination of Antenidoro. This is shown by
the fact that after the verbal altercation that Sunday morning between Buenavista and Antenidoro Callejo,
Buenavista was seen later in the afternoon already armed with an automatic carbine, while Pedro Fullante was
with him also armed with a bolo, the two and their companions apparently waiting for Antenidoro and his
brothers. 3
In People v. Madera, citing People v. Custodio, We said: "It is well to recall the settled rule that conspiracy
presupposes the existence of a preconceived plan or agreement and in order to establish the existence of such a
circumstance, it is not enough that the persons supposedly engaged or connected with the same be present when
the crime was perpetrated. There must be established a logical relationship between the commission of the crime
and the supposed.conspirators, evidencing a clear and more intimate connection between and among the latter,
such as by their overt acts committed in pursuance of a common design. Considering the far-reaching
consequences of criminal conspiracy, the same degree of proof required for establishing the crime is required to
support a finding of its presence that is, it must be shown to exist as clearly and convincingly as the commission
of the offense itself."

_______________
3 57 SCRA 349.

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318 SUPREME COURT REPORTS ANNOTATED

People vs. Tumalip
4
In People v. Peralta, We declared that to hold appellants "guilty as co-principal by reason of conspiracy, it must
be established that he performed an overt act in furtherance of the conspiracy either by actively participating in
the commission of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them
to executing the conspiracy." In the case of appellants Tumalip and Bosque, there is no evidence that they had
any personal enmity or grudge against the intended victim. Their participation in the criminal act appears to be
limited to being present in the premises while their companions had a verbal altercation with Antenidoro, and
later in the afternoon when Buenavista fired at the victims. We have previously held that where the acts of the
co-defendants who, other than being present, and perhaps, giving moral support to the principal accused, cannot
be said to constitute a direct participation in the acts of execution and their presence and company was not

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necessary and essential to the perpetration of the murder in question, such co-defendants may
5
only be considered
guilty as accomplices. (People v. Tamayo, 44 Phil., 38; People v. Bantogan, 54 Phil., 834).
As to the nature and gravity of the multiple crimes committed, the trial court was correct in considering
evident premeditation as qualifying the killing of Antenidoro Callejo as murder. The killing of Felino Callejo
and Ambrocio Tierra, and the wounding of Abdon Callejo, were apparently thought of on the spur of the
moment, after the Callejo brothers went to the house of Tierra. This court in previous cases had laid down as a
rule that the circumstance of evident premeditation must be evident and not merely suspected by which is meant
"a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and sufficient to
allow the 5*conscience of the actor to overcome the resolution of his will if he desires to harken to its
warnings." The attack, however, on all the victims was treacherous because it was done with a deadly weapon
and was sudden and unexpected. Treachery, therefore, qualified the killing of Felino Callejo and Ambrocio
Tierra as two separate crimes of murder, and the infliction of physical injuries on Abdon Callejo as frustrated
murder.

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4 25 SCRA 759, 777.
5 People vs. Ubina, 97 Phil., 515, 533, 534.
5* People vs. Yturriaga, 86 Phil., 534.

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VOL. 60, OCTOBER 28, 1974 319

People vs. Tumalip

In view of the absence of any evidence showing that the accused Antonio Buenavista or the appellants intended
to kill Pedro Callejo and performed overt acts directly designed to realize that intention, We cannot hold
appellants guilty of the crime of attempted murder, We, therefore, reverse the judgment insofar as it finds them
guilty of the said offense. As appellant Pedro Fullante is liable as a co-principal for all the crimes committed in
furtherance of the conspiracy, irrespective of the degree of his actual participation, We, therefore, affirm the
judgment of the court a quo insofar as the penalties imposed on said appellant is concerned, except that the civil
indemnity in favor of each of the heirs of the deceased Ambrocio Tierra, Felino Callejo and Antenidoro Callejo
should be increased to P12,000.00 instead of P6,000.00.
Appellants Tumalip and Bosque, as accomplices in the three (3) crimes of murder and that of frustrated
murder should, pursuant to Articles 52 and 54 of the Revised Penal Code, be sentenced to suffer a penalty6
next
lower in degree than that prescribed by law for each of the crimes of murder and the frustrated murder.
We, therefore, modify the judgment, with respect to appellants Policarpo Tumalip and Angelito Bosque, by
sentencing each of them to suffer a triple indeterminate penalty, ranging from SIX (6) YEARS and EIGHT (8)
MONTHS of prisión mayor in its minimum period, as minimum, to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of reclusion temporal in its minimum, as maximum, for each of the crimes of murder, and, in
addition, each of them to suffer an indeterminate penalty ranging from TWO (2) YEARS and ELEVEN (11)
MONTHS of prisión correccional, as minimum, to SIX (6) YEARS and SEVEN (7) MONTHS of prisión
mayor, as maximum, for the crime of frustrated murder. With respect to the civil liability, by apportioning the
indemnity of P12,000.00 each of the heirs of the three deceased aforementioned', or a total of P36,000.00, as
follows: (1) the

_______________
6 The penalty one degree lower to reclusion temporal in its maximum period to death, which is prescribed for murder, is prision mayor in

its maximum period to reclusion temporal in its medium period (10 years & 1 day to 17 years & 4 months). The penalty prescribed by law
for accomplices in frustrated murder is prision correccional in its maximum period to prision mayor in its medium period (4 years, 2 months
& 1 day to 10 years).

320

320 SUPREME COURT REPORTS ANNOTATED

People vs. Tumalip

principal, Pedro Fullante, shall be liable primarily for P18,000.00; and (2) the two accomplices, Policarpo
Tumalip and Angelito Bosque, shall be liable, jointly and severally (in solidum) for P18,000.00. The subsidiary
liability
7
of all of them shall be enforced in accordance with the provisions of Article 110 of the Revised Penal
Code.
WHEREFORE, with the aforementioned modifications, the appealed judgment is hereby aff irmed.

Fernando, Barredo, Fernandez and Aquino, JJ., concur.

Judgment affirmed with modifications.

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Notes.—a) Nature of conspiracy.—In conspiracy, no formal agreement between the parties to do the act
charged is necessary. It is sufficient that the minds of the parties meet understandingly so as to bring about an
intelligent and deliberate agreement to do the acts and to commit the offense charged, although such agreement
is not manifested by any formal words. A mutual implied understanding is sufficient, so far as the combination
or confederacy is concerned, to constitute the offense. Previous acquaintance is unnecessary, and it is not
essential that each conspirator shall take part in every act, or the other conspirators in the execution of the act of
conspiracy. Conspiracy implies concert of design and not participation in every detail of execution x x x. If the
object of the combination is unlawful, the means contemplated to effect such object is immaterial, x x x and it is
not even necessary that the means should have been agreed on, or that any time

_______________
7 Article 110 of the Revised Penal Code provides that "Notwithstanding the provisions of the next preceding article, the principals,

accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and
subsidiarily for those of the other persons liable. The subsidiarily liability shall be enforced, first against the property of the principals; next,
against that of the accomplices, and, lastly, against that of the accessories. Whenever the liability in solidum, or the subsidiary liability has
been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective
shares." (See also People v. Bantagan, 54 Phil. 834; People v. Cortes, 55 Phil. 143; Lumiguis v. People, No. L-20338, April 27,1967,19
SCRA 842.)

321

VOL. 60, OCTOBER 28, 1974 321

Trimica, Inc. vs. Polaris Marketing Corporation

should have been set for the accomplishment of the design (People vs. Ging Sam, L-4287, December 29,1953).

b) Accomplices.—It is an essential condition for conviction as an accomplice not only that there be a
relation between the acts done by the principal and those attributed to the person charged as an
accomplice, but also that the latter, with knowledge of the criminal intent, cooperate in the promotion of
the intention by supplying material or moral aid in an efficacious way (Cariño vs. People, L-14752,
April 30, 1963). Two elements are required in order that a person may be considered an accomplice in a
crime, namely, that he takes part in the execution of the crime by previous or simultaneous acts and that
he intend by said acts to commit the crime or take part in its execution (Cariño vs. People, ibid.).

LEGAL RESEARCH SERVICE

See SCRA Quick Index-Digest, volume one, page 10 on Accomplice; page 84 on Alibi; page 369 on Conspiracy;
page 570 on Criminal Law; and page 826 on Evidence.
See also SCRA Quick Index-Digest, volume two, page 1872 on Res Gestae; and page 2143 on Witnesses.

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