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edging his guilt of the offense charged, may be given as evidence against him." But following the time-honored caveat, that if the accused successfully proves that a confession was given as a result of violence, intimidation, threat, or promise of a reward or leniency, the confession becomes inadmissible. The Court is ever cognizant of the time-honored admonition that confessions, especially those made extrajudicially, should be carefully scrutinized. The court does not accept confessions readily, because experience has shown that some law officers are not above extorting confessions through violence and intimidation. Hence, the true test of admissibility is that the confession is made freely and voluntarily.
2. ID.; ID.; ID.; ID.; PRIMA FACIE PRESUMPTION OF VOLUNTARINESS. The rule is that a confession is presumed to be voluntary until the contrary is proved. The defense has the burden to show that the confession is involuntary.
3. ID.; ID.; ID.; ADMISSIBILITY ADDRESSED TO THE SOUND DISCRETION OF THE JUDGE.-The question of admissibility of extrajudicial confession is necessarily addressed to the sound discretion of the judge, and since such discretion must be controlled by all the attendant circumstances, the courts have wisely forborne to mark with absolute precision any rules limiting the admission or exclusion of such testimony. Their admissibility must depend largely in each case upon the facts and circumstances surrounding the same. 'Whether or not a confession is voluntary depends upon the credibility of the witnesses, which matter lies within the competence of the trial court whose conclusion concerning the credibility of witnesses will not be disturbed by the appellate court.
4. ID.; ID.; ID.; ID.; IMPORTANT ELEMENTS IN THE DETERMINATION OF VOLUNTARINESS.-In determining whether a confession is voluntary or not, the age, character and situation of the accused at the time it was made are important elements in the consideration of the court.
5. ID.; ID.; ID.; ID.; INFORMATION PROVIDED BY ACCUSED ON MATTERS BEST KNOWN ONLY TO HIMSELF, RULES OUT COERCION.-Where accused made numerous corrections which embody information best known only to him, in front of the municipal judge before whom it was subscribed and sworn to, it is improbable that coercion wrung them out of him.
6. ID.; ID.; TESTIMONIAL EVIDENCE; WEIGHT AND SUFFICIENCY.—Ac- ́ cused's testimony that his confession was not voluntary cannot prevail as against that of the justice of the peace, to the effect that the confession was voluntarily signed in his presence. A WITNESS.-The 7. ID.; ID.; ID.; EFFECT OF A DECLARATION OF extrajudicial confession of the accused is not to be disbelieved in view of an earlier affidavit where he denied participation in the robbery because a variation in the declaration of a witness' is not always sufficient to discredit his testimony.
8. ID.; ID.; ID.; CONFLICTING CONFESSIONS NOT A GROUND FOR ACQUITTAL.-Conflicting confessions cannot be a ground for acquitting the defendant for if a confession could be rejected on such ground, all that would be necessary in any case to dispense with a damaging confession would be for an accused to tell another story out of harmony with the preceding one.
9. ID.; ID.; EXTRAJUDICIAL CONFESSION FOLLOWED BY REENACTMENT OF A CRIME, DEEMED VOLUNTARY.-Where an extra-judicial confession is followed by a re-enactment of the crime by the
accused himself in accordance with his confession, such con-
10. ID.; ID.; ALIBI; ALIBI, WEAKEAST DEFENSE.-The defense f
OPINION OF THE COURT
ABAD SANTOS, J.:
On December 31, 1967, armed men sacked two places in Negros Occidental: Toboso town in the early morning; and Cadiz City in the evening. For the raid in Toboso, the Circuit Criminal Court at Bacolod City, in Criminal Case No. CCC-XII-27, found the accused Carlos Caramonte guilty of robbery in band with multiple homicide and less serious physical injuries, and sentenced him to death. But for the raid on Cadiz City, the Court of First Instance, Branch I, at Silay City, in Criminal Case No. 690, acquitted the same accused Caramonte. This is an appeal from the judgment of conviction.
At the time the trial of this case started, of the several accused mentioned in the Third Amended Information, all were at large except Ricardo Cañete and Caramonte. Trial proceeded against these two; but before the prosecution rested its case, it moved that the case be dismissed against Cañete, on the ground of insufficiency of evidence. There was no objection on the part of the accused, and the court dismissed the case against Cañete. Hence, the case proceeded only as against the accused Caramonte.
One witness-Luciano Salinas-testified for the prosecution in both cases. In Criminal Case No. 690, which resulted in the judgment of acquittal, Salinas was discharged to become a state witness. In the instant case, he testified that he resides at sitio Amamansa, barrio Pasil, Pantayan, Cebu. This place is found on the Island of Botiguez, which is a part of Bantayan.
On December 30, 1967, at about 4:00 p.m., Salinas left his house for sitio Tunga to buy matches from the store of one Agustin Cañete. When he arrived, he saw, about ten meters away from the store, a group composed of: Carlos Caramonte, Isabelo Montemayor, Florencio Tagsawa alias Turing, Tambok, Boy, Kiampao, Cesar Cañete, Roberto Rivera, and Tatong Mansueto.
When Salinas approached the group squatting on the ground, he heard that they were planning to stage robberies at Toboso and Cadiz City. Specifically, at arm's length, he heard Montemayor tell the others: "We'll rob Toboso and Cadiz City." When he left the place, the group
remained but later they also went away. They divided into two groups and went to the seashore.
At about 5:00 p.m., Salinas reached home and went to the seashore. He watched while a group of seven-Caramonte, Turing, Tambok, Mario, Boy, Ponyot, and Kiampao—boarded a yellow pumpboat. He was about 40 to 50 meters away from the point of departure. He followed with his eyes the progress of the boat until it was about four to five kilometers away.
The scenario shifts from Botiguez island to Toboso town which, on December 31, 1967, between 1:00 to 1:30 a.m., was the venue of a victory celebration for the newlyelected mayor and other town officials held at the town plaza. One of those who abstained from participating in the celebration was Lim Eng Yu, a merchant who preferred to go to sleep in his house located about 10 meters from the plaza. At about 1:20 a.m., he was awakened by several shots fired near the municipal building, about 30 meters away. He peeped through the window and saw several men with carbines passing through Del Pilar street. He hid himself, and then heard the front door being broken down with an axe. After gaining entry, the malefactors broke the second door leading upstairs. They fired several shots and destroyed the clothes closets. Lim did not recognize any one of the three or four persons who broke into his house.
Together with Lim in his house at this time, were his daughter Lim, and two maids: Dioleta Disol and Lolita Pahayahay. Lolita testified that when the three girls heard the sound of the axe upon the door, they hid under the bed in the living room. The armed men espied Dioleta's feet sticking out from under the bed. They pulled Dioleta out and dragged her downstairs. The band ordered them to look for money, but the girls did not know where it could be found. Later, the band brought them to the seashore, which is about half a kilometer's distance from the house. There they were released, and they ran back home. After the marauders left, Lim found that they had broken his wooden safe open and taken the amount of P2,600.00, as well as some pieces of jewelry.
At the time of the robbery, at about 1:30 a.m., a group of policemen were taking a coffee break at a store on Del Pilar street. This group was composed of: the Chief of Police, Sgt. Charles Valencia, Pat. Salustiano Taganele, and Pat. Sotero Baynosa. As they left the store to go home, a burst of gunfire exploded in the vicinity. The policemen, seeing that the band of malefactors were armed, sought refuge in different places. The band gave chase to Pat. Baynosa. He testified that he ran towards the market
place and emerged only after one hour, after the band had disappeared. Baynosa found Valencia's dead body at the municipal kiosk. He had been hit on the head by a bullet. The Chief of Police directed Pat. Baynosa to investigate the robbery. The policeman went to Lim's house and recovered: an axe; 29 pieces of .30 cal. shells; and one piece of live .45 cal. bullet.
At about the same time, between 1:30 to 2:00 a.m., Vivencio Rosales and his son Nelson were inside a bus identified as Simwin No. 50. They were poised to go home after attending the victory ball. His son took a seat near the bus driver. Then a person unknown to Vivencio approached the bus and ordered the driver not to start the vehicle and not to put on the lights. When the driver, disregarding the stranger's directive, started the bus, immediately afterwards an explosion occurred. After the first explosion, Nelson was hit on the left side of the head and died five hours after arrival at the hospital. The passenger beside Nelson, George Baynosa, was also hit and he died from the gunshot wound.
Dr. Enrique Gauzon, Acting Municipal Health Officer of Toboso, testified that at about 1:45 a.m., he examined the cadaver of Sgt. Charles Valencia, and later issued a post-mortem report. Dr. Gauzon was of the opinion that death was caused by severe hemorrhage from the cerebral gunshot wound. He testified that the wound was probably cause by a carbine, a Garand, or a Thompson. Dr. Gauzon also examined the body of Nelson Rosales and arrived at the similar conclusion that the cause of death was severe hemorrhage from a gunshot wound. Further, the doctor also examined the cadaver of George Baynosa and found one bullet wound. He issued the opinion that the wounds on the three cadavers he examined could have been caused by a .38 or .45 cal. bullets.
Dr. Eusebio Respicio, Jr., a physician engaged in private practice, testified that he examined Lim Katian at the Magdalene Hospital on December 31, 1967. Lim informed the doctor that he was shot in Toboso; his wounds actually healed on the 11th day.
After this telescopic view of the events at Toboso, we return to Botiguez island and find Salinas on the day of the robbery, December 31, 1967. At about 6:00 a.m., he had climbed to the top of a coconut tree in order to gather tuba. From this vantage point, at a distance of about 50 meters, he saw a yellow pumpboat coming back to the seashore. He saw the pumpboat disgorge seven persons who were Caramonte and his other companions. The band proceeded toward barrio Pasil.
On the same day, at about 5:00 p.m., Salinas went to the cockpit. He then went to buy tuba at the house of
Rosendo Cañete-his wife's relative-at barrio Silanga. In the yard he saw: Caramonte, Isabelo Montemayor, Teofilo Mejia, Ronnie Boy, Boy, Mario, Turing, Tambok, Ponyot, Kiampao, Liandring, and Panday. He heard Montemayor say: "Let's raid Cadiz City." He then received an invitation from Montemayor to join the raiding party. Although initially hesitant, Salinas accepted the invitation and boarded a blue pumpboat with the others at the seashore of Tabunok. They left at 7:00 p.m., and arrived at 9:00 p.m. at Cadiz City.
Salinas stayed in the pumpboat while his 13 companions including Caramonte-disembarked with firearms. Salinas heard shots; after about 30 minutes, the group came back. While they were at sea, he heard Boy groaning and complaining that he was wounded on his left thigh. Ronnie Boy was also wounded on the left arm. They reached Amamansa at about 4:00 a.m. and brought the two wounded men to Salinas' house. Montemayor gave him P30.00 as his share for the Cadiz adventure.
On January 3 and 5, 1968, the III PC Zone at Cebu City received a spot report from the PC at Negros Occidental on the robbery with multiple homicide in Toboso. On January 9, 1968, Master Sgt. Sandy Castañeda was assigned to lead the team for the investigation of the robberies at Toboso and Cadiz City. The team interviewed Salinas and took down his affidavits. On January 20, 1968, past 5:00 a.m., Sgt. Castañeda went to the house of Rafael Escario at barrio Pasil, where he found Caramonte. He was accompanied by Capt. Luis Panes and other soldiers of the PC at Negros Occidental. Capt. Panes on the witness stand later confirmed the sergeant's story. The sergeant showed to Caramonte the warrant of arrest issued by the judge of the Cadiz City Court. Caramonte argued as an alibi that on the day of the robbery, on December 31, 1967, he took his oath as municipal councilor. However, the sergeant verified that Caramonte actually took his oath on a later day, and therefore effected the arrest.
Judge Francisco Ledesma of the Cadiz City Court testified that before him, on January 23, 1968, Caramonte subscribed his affidavit, marked as Exhibit "G"; and on January 24, 1968, another affidavit, marked as Exhibit "H". In Exhibit "G", consisting of 12 pages, Caramonte raised the alibi that he stayed at his residence, the house of Rafael Escario at barrio Pasil, Botiguez, the whole day of December 30, 1967, until the afternoon of December 31, 1967, when he went to Silanga. Caramonte and a certain Pat. Ramos brought Exhibit "G" to Judge Ledesma. The judge explained to Caramonte the contents of the affidavit, and advised him that he could make the necessary