FORTU NAVSPEOPLE

FACTS:
Diosdada and her brother Mario Montecillo was waiting for a ride home when
suddenly a mobile patrol stopped in front of them. The policeman seatedin the front right
seated alighted and with out a word frisked Mari o. He tookMarios belt and pointed to
the supposed blunt object and uttered evidence. Hethen mentioned to Mario to board the car.
Mario being terrifi e d obeyed andseated himself at the back with another
policeman. Diosdada instinctivelyfollowed suit and sat beside Mario.The driver asked Mario
why he was carrying a deadly weapon. Marioanswered that its for self-def ense. They
frightened Mario that for carryin g adeadly weapon he will be brought to Bicutan police
station where he would beinterrogated by the police, mauled by prisoners and heckled by the
press. Thepoliceman told the Montecillos that the bailband for carrying a deadly weapon
would be Php 12,000.00. At this point the driver asked them how much moneythey
had.Diosdada was then made to alight the car. The driver followed her and forced
her to take out her wallet. He counted her money which amounts to Php5,000.00. He took the
Php 1,500 and instructed Diosdada to tell his companionsthat she only had Php 3,500.00.O n c e i n t h e
c a r t h e p o l i c e m a n d i r e c t e d h e r t o p u t h e r m o n e y i n t h e console box. The car
then proceed to Harrison Plaza and unload Diosdada andher brother Mario.T h e f o l l o w i n g
d a y D i o s d a d a r e c o u n t e d h e r h a r r o w i n g s t o r y t o h e r employer who
accompanied her to the office of the then General Diokno wherethey lodged their complaint.
General Diokno directed one of his policemen tol o o k f o r t h e e r r i n g p o l i c e m e n . A
l i n e u p o f p o l i c e m e n w a s a s s e m b l e d a n d Diosdada recognized them.They were found
guilty of having conspired to commit a crime by the trialcourt and it was affirmed by the appellate
court.However, Fortuna contends that the trial and appellate court erred in their decision
that he took part in the cons piracy. He argued that the evidence dpresented by the
prosecution did not support the theory of conspiracy againsthim.The supreme court, however,
was convinced that the trial court and theappellate court did not erred in holding the accused
appellant Fortuna guilty for conspiring with the other policemen. A s a p o l i c e o f fi c e r , i t
i s h i s p r i m a r y d u t y t o a v e r t b y a l l m e a n s t h e commission of an
off ense. As such, he sho uld not have kept his silence but, i n s t e a d , s h o u l d
have
protected
the
Montecillos
from
his
mulcting
colleagues. This accused-appellant failed to do. His silence then could only bev i e w e d a s
a form of moral support which he zealously lent to his
c o - conspirators.
ISSUE:
Whether or not the aggravating circumstance under Article 14 paragraph 1or the abuse of public position
should be appreciated in the case at bar?
HELD:
Yes. The mere fact that the three accused were police officers at the timeof the robbery placed them in
the position to perpetrate the offense. If they werenot police officers the Montecillos would

not have been terrified on boarding thepatrol car and hand them their money. Precisely on
account of their authoritythat the Montecillos believed that Mario committed a crime and would be
broughtto the police station for investigation unless they gave them money.Therefore, the Supreme Court
affirmed the decision with modificationsappreciating the aggravating circumstance on the case at bar.

SECOND DIVISION

[G.R. No. 135784. December 15, 2000]

RICARDO FORTUNA Y GRAGASIN, petitioner, vs.PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
BELLOSILLO, J . :
Perhaps no other profession in the country has gone through incessant maligning
by the public in general than its own police force. Much has been heard about
the notoriety of this profession for excessive use and illegal discharge of power.
The present case is yet another excuse for such vilification.
On 21 July 1992 at about 5:00 oclock in the afternoon, while Diosdada
Montecillo and her brother Mario Montecillo were standing at the corner of Mabini
and Harrison Streets waiting for a ride home, a mobile patrol car of the Western
Police District with three (3) policemen on board stopped in front of them. The
policeman seated on the right at the front seat alighted and without a word
frisked Mario. He took Marios belt, pointed to a supposedly blunt object in its
buckle and uttered the word "evidence." [1] Then he motioned to Mario to board
the car. The terrified Mario obeyed and seated himself at the back together with
another policeman. Diosdada instinctively followed suit and sat beside Mario.
i

They cruised towards Roxas Boulevard. The driver then asked Mario why he
was carrying a "deadly weapon," to which Mario answered, "for self-defense
since he was a polio victim." [2] The driver and another policeman who were both
seated in front grilled Mario. They frightened him by telling him that for carrying a
deadly weapon outside his residence he would be brought to the Bicutan police
station where he would be interrogated by the police, mauled by other prisoners
and heckled by the press. As they approached Ospital ng Maynila, the mobile
car pulled over and the two (2) policemen in front told the Montecillos that the
bailbond for carrying a "deadly weapon" was P12,000.00. At this point, the
driver asked how much money they had. Without answering, Mario gave his
P1,000.00 to Diosdada who placed the money inside her wallet.
ii

Diosdada was then made to alight from the car. She was followed by the driver
and was told to go behind the vehicle. There, the driver forced her to take out

her wallet and rummaged through its contents. He counted her money. She
had P5,000.00 in her wallet. The driver took P1,500.00 and left her P3,500.00.
He instructed her to tell his companions that all she had was P3,500.00. While
going back to the car the driver demanded from her any piece of jewelry that
could be pawned. Ruefully, she removed her wristwatch and offered it to him.
The driver declined saying, "Never mind," [3] and proceeded to board the car.
Diosdada, still fearing for the safety of her brother, followed and sat beside him in
the car.
iii

Once in the car, Diosdada was directed by the policeman at the front passenger
seat to place all her money on the console box near the gearshift. The car then
proceeded to Harrison Plaza where the Montecillos were told to disembark.
From there, their dreadful experience over, they went home to Imus, Cavite.
The following day Diosdada recounted her harrowing story to her employer
Manuel Felix who readily accompanied her and her brother Mario to the office of
General Diokno where they lodged their complaint. Gen. Diokno directed one of
his men, a certain Lt. Ronas, to assist the complainants in looking for the erring
policemen. They boarded the police patrol car and scoured the Mabini area for
the culprits. They did not find them.
When they returned to the police station, a line-up of policemen was immediately
assembled. Diosdada readily recognized one of them as the policeman who
was seated beside them in the back of the car. She trembled at the sight of him.
She then rushed to Lt. Ronas and told him that she saw the policeman who sat
beside them in the car. He was identified by Lt. Ronas as PO2 Ricardo Fortuna.
A few minutes later, Gen. Diokno summoned the complainants. As they
approached the General, they at once saw PO2 Eduardo Garcia whom they
recognized as the policeman who frisked Mario. The following day, they met the
last of their tormentors, the driver of the mobile car who played heavily on their
nerves - PO3 Ramon Pablo.
The three (3) policemen were accordingly charged with robbery. After trial, they
were found guilty of having conspired in committing the crime with intimidation of
persons. They were each sentenced to a prison term of six (6) years and one
(1) day to ten (10) years of prision mayor, to restitute in favor of private
complainants Diosdada Montecillo and Mario Montecillo the sum of P5,000.00,
and to indemnify them in the amount of P20,000.00 for moral damages and
P15,000.00 for attorneys fees. [4]
iv

The accused separately appealed to the Court of Appeals. On 31 March 1997

the appellate court affirmed the lower court's verdict. [5] Accused-appellant
Ricardo Fortuna moved for reconsideration but the motion was denied. Hence,
this petition by Fortuna alone under Rule 45 of the Rules of Court. He contends
that the appellate court erred in holding that private complainants gave the
money to the accused under duress, the same being negated by the
v

prosecutions evidence, and in affirming the decision of the court below. He

argued that the evidence presented by the prosecution did not support the theory
of conspiracy as against him. [6]
vi

The issues raised by accused-appellant, as correctly observed by the Solicitor

General, are purely factual. We have consistently stressed that in a petition for
review on certiorari this Court does not sit as an arbiter of facts. As such, it is not
our function to re-examine every appreciation of facts made by the trial and
appellate courts unless the evidence on record does not support their findings or
the judgment is based on a misappreciation of facts. [7] The ascertainment of
what actually happened in a controverted situation is the function of the lower
courts. If we are to re-examine every factual finding made by them, we would not
only be prolonging the judicial process but would also be imposing upon the
heavily clogged dockets of this Court.
vii

We do not see any infirmity in the present case justifying a departure from this
well-settled rule. On the contrary, we are convinced that the trial and appellate
courts did not err in holding that accused-appellant Fortuna conspired with the
accused Pablo and Garcia in intimidating private complainants to give them their
money.
We are convinced that there was indeed sufficient intimidation applied on the
offended parties as the acts performed by the three (3) accused, coupled with the
circumstances under which they were executed, engendered fear in the minds of
their victims and hindered the free exercise of their will. The three (3) accused
succeeded in coercing them to choose between two (2) alternatives, to wit: to
part with their money or suffer the burden and humiliation of being taken to the
police station.
To our mind, the success of the accused in taking their victims' money was
premised on threats of prosecution and arrest. This intense infusion of fear was
intimidation, plain and simple.
Accused-appellant further argues that assuming arguendo that the element of
intimidation did exist, the lower court erred in holding that he conspired with his
companions in perpetrating the offense charged.
This indeed is easy to assert, for conspiracy is something which exists only in the
minds of the conspirators, which can easily be denied. However, conspiracy may
be detected and deduced from the circumstances of the case which when pieced
together will indubitably indicate that they form part of a common design to
commit a felony; and, to establish conspiracy, it is not essential that there be
actual proof evincing that all of the conspirators took a direct part in every act, it
being sufficient that they acted in concert pursuant to the same objective. [8]
viii

In the present case, accused-appellant would want to impress upon this Court
that his silence inside the car during Marios interrogation confirmed his claim
that he did not participate in the offense.
We do not agree. As a police officer, it is his primary duty to avert by all means
the commission of an offense. As such, he should not have kept his silence but,
instead, should have protected the Montecillos from his mulcting colleagues.
This accused-appellant failed to do. His silence then could only be viewed as a
form of moral support which he zealously lent to his co-conspirators.
In one case, we ruled that in conspiracy all those who in one way or another
helped and cooperated in the consummation of a felony were co-conspirators. [9]
Hence, all of the three (3) accused in the present case should be held guilty of
robbery with intimidation against persons.
ix

We however observe that the courts below failed to appreciate the aggravating
circumstance of "abuse of public position." [10] The mere fact that the three (3)
accused were all police officers at the time of the robbery placed them in a
position to perpetrate the offense. If they were not police officers they could not
have terrified the Montecillos into boarding the mobile patrol car and forced them
to hand over their money. Precisely it was on account of their authority that the
Montecillos believed that Mario had in fact committed a crime and would be
brought to the police station for investigation unless they gave them what they
demanded.
x

Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of
The Revised Penal Code, the penalty for simple robbery is prision correccional in
its maximum period to prision mayor in its medium period. In view of the
aggravating circumstance of abuse of public position, the penalty should be
imposed in its maximum period [11] while the minimum shall be taken from the
penalty next lower in degree, which is arresto mayor maximum to prision
correccional medium in any of its periods the range of which is four (4)
months and one (1) day to four (4) years and two (2) months.
xi

WHEREFORE, the Decision of the Court of Appeals which affirmed that of the
trial court finding accused-appellant Ricardo Fortuna guilty of robbery and
ordering him to pay complaining witnesses Diosdada Montecillo and Mario
Montecillo P5,000.00 representing the money taken from them, P20,000.00 for
moral damages and P15,000.00 for attorney's fees, is AFFIRMED with the
modification that accused-appellant Ricardo Fortuna is SENTENCED to the
indeterminate prison term of two (2) years four (4) months and twenty (20) days
of the medium period of arresto mayor maximum to prision correccional medium,
as minimum, to eight (8) years two (2) months and ten (10) days of the
maximum period of prision correccional maximum to prision mayor medium, as
maximum.

Costs against accused-appellant Ricardo Fortuna.

SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

i
ii
iii

ivEN BANC
[G.R. No.126043. April 19, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL MAGAYAC,

defendant-appellant.
DECISION
BELLOSILLO, J.:
MANUEL MAGAYAC, a member of the CAFGU, was found guilty of MURDER and sentenced
to DEATH by the court a quo. His conviction is the subject of this automatic review.[1] S djad
The records show that on 11 February 1994 at around 9:00 o'clock in the evening Jiminardo
Jimmy Lumague, Edwin Lumague, Tino Magayac, Manuel Magayac and other menfolk of
Barangay Paraiso, Pinamalayan, Oriental Mindoro, were on the shore preparing for night
fishing.[2] Jimmy was sitting on the kamarote when Tino Magayac, father of the accused,
pushed Jimmy for no apparent reason. When Jimmy asked, "Bakit mo ako tinabig (Why did
you push me)?" Tino answered, "Bakit, lalaban ka baga (Why, do you want to fight)?" Tino
then hit Jimmy at the back (dinagukan). Before they could come to blows, cooler heads
intervened.
Two (2) hours later, as the group was already at sea and the Lumague brothers were pulling
the fishnet for the night catch, Tino once more approached Jimmy and without any
preliminaries hit him at the collar and at the stomach. Accused Manuel Magayac also
advanced towards Jimmy and tried to box him with his right hand.[3] Again, the fight was
averted with the captain threatening to drop them into the sea if they did not stop. When
Jimmy's Uncle Kanuto asked, "Why are you ganging up on my nephew?" the accused
answered, "Bakit, lalaban ba kayo, bukas lagot kayo sa akin. (Why, do you want to fight?
Tomorrow, you will see)."[4]
At about 7:00 o clock early next morning, Jimmy Lumague and the accused met again and
exchanged blows.[5] In this one-on- one fight, it seemed that Jimmy was the better fighter.[6]
The protagonist were once more separated; it was however apparent that the accused was
furious for having obviously been beaten.
At about 6:00 o'clock the following evening, 12 February 1994, Eliza Lumague, Jimmy's
mother, was at home with her husband and Edwin when they saw the accused carrying a long
rifle pass by the store of Pikong Paez.[7] Advised by her husband to follow the accused an
warn Jimmy of possible reprisal, Eliza looked for her son at Nestor Balana's house near the
beach. She found him there sitting on a bench talking with Nicanor Jack Balana at the
balisbisan of Balanas house.[8] Eliza warned Jimmy of the accused's impending arrival and
urged him to go home. But he replied, "Inay, mang na na po kayo at ako ay susunod" (Mother,
please go ahead, I'll follow you). As Eliza turned to go, she saw the accused approach Jimmy,

the former saying to the latter, "Huwag kang tumakbo, hinde kita aanuhin" (Don't run, I won't
do anything to you). Jimmy who as about to run, upon hearing the remark, stopped. [9]
The accused then turned to Nicanor and said, "Jack, umalis ka na baka mapadamay ka pa"
(Go, Jack, you might get involved).[10] Nicanor immediately retreated to his brother's house, a
distance of two (2) to five (5) meters away. Jimmy was trying to leave the place when he was
shot by the accused and hit on his right stomach. Jimmy fell down on his knees and collapsed
on the ground, face down. Manuel cocked his gun again and shot at Jimmy's back several
times. Manuel then went to the 262nd PC Mobile Force where he surrendered. [11]
Jimmy's body was autopsied by Dr. Rosalinda Baldos at 9:00 o clock that same evening who
reported: "FINDINGS: General Physical Appearance shows a sthenic body with Multiple
Gunshot Wounds described as follows: (1) Four (4) Gunshot Wounds 0.5 CM in diameter at
the Left Posterior Chest with exit wounds (9 lacerated) at the Anterior Chest Left; (2) Two (2)
Gunshot Wounds Right Posterior Chest measuring 0.5 CM; (3) Gunshot Wound Hip Anterior
left 0.5 CM in diameter with exit wound at the Right Buttocks; and, (4) Two (2) Gunshot
Wounds Arm Posterior with exit wound at the Anterior Portion with Complete Fracture of the
Humerus. CONCLUSION: The cause of death is Cardiorespiratory Failure due to Shock due
to Severe External and Internal Hemorrhages due to Multiple Gunshot Wounds Body and
Extremities."[12] Sppedsc
In an Information dated 4 March 1994 the accused was charged with Murder for feloniously
shooting to death Jiminardo Jimmy Lumague with the qualifying circumstances of treachery
and evident premeditation and generic aggravating circumstance of taking advantage of
public position as a member of the CAFGU. [13]
The accused invoked self-defense. With himself as sole witness in his behalf he asserted that
between 5:30 and 6:00 o clock in the afternoon of 12 February 1994 he was walking to the
PC Camp to report for duty as CAFGU when Jimmy suddenly appeared about four (4)
armslength away. Jimmy was holding a balisong (fan- knife) on his right hand. He rushed
towards him (Manuel) so he had to fire his gun as he could no longer retreat. His back was
already against a housewall. He shot Jimmy on the front right side above his right thigh and
then promptly surrendered to Sgt. Martin Calingasan at the PC Camp. [14]
The accused failed to persuade the court to lean to his side. It found him guilty of murder
qualified by treachery or evident premeditation and aggravated by cruelty and taking
advantage of his public position as member of the CAFGU. His voluntary surrender was
appreciated as a mitigating circumstance. Nevertheless, he was sentenced to death. He was
also ordered to indemnify the heirs of Jiminardo Jimmy Lumague with P50,000.00 for loss of
life and P20,000.00 for funeral expenses.[15]
The accused now contends that the trial court erred in not acquitting him on the ground of
self-defense, and for appreciating treachery and evident premeditation as qualifying
aggravating circumstances along with the generic aggravating circumstances of cruelty and
taking advantage of public position in the commission of the crime.
The invocation of self-defense is an admission of the killing and of its authorship. By this
admission, the burden of proof shifts to the accused who must now establish with clear and

convincing evidence all the elements of this justifying circumstance, to wit: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means employed to
prevent or repel it; and, (c) lack of sufficient provocation on the part of the person resorting to
self- defense.[16] In proving these elements, the accused must rely on the strength of his own
evidence. He can no longer assail the weakness of the evidence against him simply because
it cannot be disbelieve after his open admission of responsibility for the killing. [17] C alrsc
Neither are we convinced of the accuseds theory of self-defense. There was no unlawful
aggression on the part of the victim to speak of. Contrary to his story, the prosecution had
established through its eyewitnesses that it was he and not the victim who was constantly
making unlawful aggressive moves.
It was the accused who boxed and threatened Jimmy the day previous to the incident. The
accused was the one who challenged the victim to a fight that morning of the incident. He was
the one who approached the unarmed Jimmy and pumped nine (9) bullets into the hapless
victim, causing his instantaneous death.
We quote with approval the following findings of the trial court - [18]
This (theory of accused) was simply unbelievable and very far-fetched. In the
first place, it was shown during his cross-examination that from his (accused's)
house going to the PC Camp where accused was supposed to report, one does
not have to pass by the seashore where the victim and his friend were chatting.
The accused could simply walk straight from his house to his Camp which was
only a short distance away without taking a longer and more cumbersome way
passing by the seashore. And in the second place, the Court finds it hard to
believe that the victim would be stupid enough to attack a member of the
dreaded CAFGU who was armed with a long rifle, even admitting arguendo that
the victim had a knife in his right hand. It is simply against human behaviour.
And besides, there was no evidence showing the existence of any knife
whatsoever. Immediately after the killing, comrades in arms of the accused (the
PC) came to the place of the incident to investigate and there was no report
regarding the presence of any knife whatsoever or any bladed instrument for
that matter.
Indeed, a plea of self-defense cannot be justifiably appreciated where it is not only
uncorroborated by independent and competent evidence, but also extremely doubtful by itself.
[19] We have ruled in People v. Gil Tadeje [20] that in the absence of any other proof presented
showing unlawful aggression on the part of the victim, there can be no self-defense, complete
or incomplete.
More so will the plea be disregarded when we take into account the number of wounds on
Jimmy's body -four (4) simultaneous gunshot wounds at the back, two (2) gunshot wounds at
the upper back, two (2) gunshot wounds at the back of arms and only one (1) gunshot wound
at the front left hip. It is an oft- repeated rule that the nature and number of wounds inflicted
by the accused are constantly and unremittingly considered as important indicia which
disprove a plea for self-defense because they demonstrate a determined effort to kill the
victim and not just defend oneself.[21] Sccal r

However, there is need to reexamine the appreciation by the trial court of the qualifying and
aggravating circumstances.
Treachery is considered present when there is the employment of means of execution that
give the person attacked no opportunity to defend himself or retaliate and the method of
execution was deliberately or consciously adopted. [22] In this case, there is no showing that
the accused employed means to ensure execution of the crime without any risk to himself,
more so that he did it deliberately.
The prosecution showed that Jimmy was amply warned by his mother of Magayac's possible
murderous intention, a warning that he at first ignored but later heeded when he saw the
accused walking towards him with a gun. That Jimmy was put on guard was gleaned from his
immediate reaction of trying to run away at the sight of the accused. Even when he was
becalmed by the assuring words of the accused that he would not hurt him, the deceased was
again alerted on the real intentions of the accused when the latter warned Jack Balana,
"Jack, umalis ka na, baka mapadamay ka pa."[23] Also, that Jimmy had deduced the
subsequent actions of the accused was shown by his second attempt to run just before he
was hit on the hip. Thus, far from being caught unaware by any act of the accused, Jimmy
was given every opportunity to avoid the danger he was in.
Not even the fact that the victim was shot repeatedly on the back while he was kneeling on
the ground with hands upraised and begging for his life be considered as treacherous. The
subsequent firing was a mere continuation of the assault in which the deceased was wounded
as no appreciable time intervened in-between the successive firing of the rifle. [24]
It is also for this reason that the eight (8) shots on the victim's back cannot ipso facto be
considered as cruelty or ignominy. For cruelty to be appreciated against the accused, it must
be shown that the accused, for his pleasure and satisfaction, caused the victim to suffer
slowly and painfully as he inflicted on him unnecessary physical and moral pain. The crime is
aggravated because by deliberately increasing the suffering of the victim the offender denotes
sadism and consequently a marked degree of malice and perversity. The mere fact of
inflicting various successive wounds upon a person in order to cause his death, no
appreciable time intervening between the infliction of one (1) wound and that of another to
show that he had wanted to prolong the suffering of his victim, is not sufficient for taking this
aggravating circumstance into consideration.[25]
But the lower court correctly concluded that there was evident premeditation, and it was this
aggravating circumstance, not treachery, which qualified the killing to murder. To recall, prior
to the shooting, the following transpired: (a) Jimmy and the father of accused-appellant almost
came to blows while fishing in the open sea on 11 February 1994 at 9:00 o'clock in the
evening after the latter hit Jimmy for no apparent reason at all; (b) two (2) hours later, while
Jimmy was on board the banca and pulling the fishnet, accused-appellant and his father
pounced on Jimmy. When asked by his uncle why they were ganging up on his nephew,
accused-appellant retorted, Bakit, lalaban ba kayo, bukas lagot kayo sa akin; and, (c) at 7:00
o'clock in the morning of that fateful day, Jimmy and accused-appellant had a fistfight where
Jimmy supposedly won.

It is not difficult to conclude that the above circumstances fuelled the resentment felt by
accused-appellant which culminated in his predetermined plan to spite and kill Jimmy. There
is no ambiguity in those ominous words directed at Jimmy and his uncle, Bakit, lalaban ba
kayo, bukas lagot kayo sa akin. Here was a man bent on requital, vengeance. And between
those threatening utterances and the one-on-one confrontation where the victim emerged as
the victor, and the actual gunning down of the victim, more than eleven (11) hours intervened
thus giving accused-appellant sufficient time to ponder on the consequences of his
malevolent plan. Calrsp ped
As the trial court aptly observed, "Smarting from the licking he received the accused carefully
planned his revenge and some eleven (11) hours thereafter, somehow learning that the victim
was somewhere near the seashore, the accused armed with an M-14 rifle issued to him by
the Government as a member of the CAFGU, purposely sought the victim out and
immediately shot him after tricking the latter into believing that he (accused) would not harm
him (victim)."[26]
To establish premeditation, it must be shown that there was a period sufficient to afford full
opportunity for reflection and a time adequate to allow the conscience of the actor to
overcome the resolution of his will. The circumstances shown herein are more than enough to
convince this Court that prior to the killing accused-appellant had resolved to exact his pound
of flesh and the rain of bullets from the M-14 rifle which snuffed out the life of Jimmy was the
result of a cold and dispassionate calculation on the part of accused-appellant.
As to abuse of public position, the essential question is whether the accused abused his office
in order to commit the crime.[27] That accused-appellant was a member of the dreaded
CAFGU and used his government issued M-14 rifle to kill Jimmy does not necessarily prove
that he took advantage of his public position to commit the crime.
The penalty for murder under Art. 248 of the Revised Penal Code, as amended by RA 7659,
is reclusion perpetua to death. When the commission of the offense is attended by a
mitigating circumstance, in this case voluntary surrender, and there is no other aggravating
circumstance, the lesser penalty shall be applied. Hence, the imposable penalty in the case at
bar is reclusion perpetua and not death.
As no evidence, testimonial or documentary, was presented as proof, the award of
P20,000.00 for funeral expenses should be deleted.
WHEREFORE, the Decision of the trial court finding accused-appellant MANUEL MAGAYAC
guilty of murder and ordering him to pay the heirs of JIMINARDO Jimmy LUMAGUE
P50,000.00 is AFFIRMED, with the modification that he is sentenced to suffer the lesser
penalty of reclusion perpetua. The award of funeral expenses is DELETED for lack of factual
basis.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Sce dp

Vitug, J., on leave.

v
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vii
viii
ix
x
xi