WBench1

FIRST DIVISION

[G.R. No. 134730. September 18, 2000]

FELIPE GARCIA, JR., petitioner, vs. THE HONORABLE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

KAPUNAN, J.:

In two separate Informations filed before the Regional Trial Court of Manila, petitioner Felipe Garcia, Jr. was charged with frustrated murder in Criminal Case No. 91-93374 and with murder in Criminal Case 91-93375 committed as follows:

Criminal Case No. 91-93374:

That on or about November 3, 1990, in the City of Manila, Philippines, the said accused conspiring and confederating with two others who[se] true names, identities and present whereabouts are still unknown and helping one another, did then and there willfully, unlawfully and feloniously, with intent to kill and treachery, attack, assault and use personal violence upon one REYNALDO BERNARDO Y DEL ROSARIO @ “BOY PANCHANG”, by then and there shooting the latter with a revolver, hitting him on the neck, thereby inflicting upon the said REYNALDO D. BERNARDO @ “BOY PANCHANG” physical injuries which was necessarily fatal and mortal, thus performing all the acts of execution which would have produced the crime of murder, as a consequence but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to the said REYNALDO D. BERNARDO @ “BOY PANCHANG” which prevented his death.

Contrary to Law.[1]

x x x

Criminal Case No. 91-93375

That on or about November 3, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating together with two others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery attack, assault and use personal force upon one FERNANDO B. LEAÑO Y BERNARDO @ “BAGGING”, by then and there shooting the latter with a revolver, hitting him on the head, thereby inflicting upon the said FERNANDO B. LEAÑO @ “BAGGING” gunshot wounds which was the direct and immediate cause of his death thereafter.

Contrary to Law.

x x x[2]

The two cases were consolidated and tried jointly before Branch 49 of the Regional Trial Court of Manila.

Upon arraignment on 24 May 1991, the petitioner, assisted by counsel de parte, entered a plea of “Not Guilty” to both charges.[3]

Trial on the merits then ensued. Based on the evidence presented, the trial court summarized the events that led to the killing of Fernando Leaño and the near fatal injuries sustained by Reynaldo Bernardo as follows:

On November 3, 1990, at about 11:30 o'clock in the evening, Arnold Corpuz and Fernando Leaño, a 15-year old student, and their friends, were conversing along Mataas na Lupa Street, Paco, Manila. Fernando Leaño was on the side of the street. Momentarily, a pedicab, with Renato Garcia (Reneng Palayok), on board, passed by and, in the process, the right wheel of the pedicab ran over the right foot of Fernando Leaño. The pedicab failed to stop and continued on its way. Incensed, Fernando Leaño ran after the pedicab. Arnold Corpuz followed suit, at a distance of about three (3) meters away from the pedicab. When Fernando Leaño was about abreast with the pedicab, he uttered invectives but Renato Garcia retaliated and hurled invectives, too, at Fernando Leaño, saying 'Putang ina ninyo.' Fernando Leaño was then ahead of the pedicab when he looked back and saw, to his consternation, Renato Garcia placing his right hand on the right side of his waistline and about to pull out his gun. Afraid for his life, Fernando Leaño sped away from the pedicab, turned to an alley and ran to Mataas na Lupa Street, Paco, Manila, direct to the house of his uncle, Reynaldo Bernardo, at No. 1281 Mataas na Lupa, Paco, Manila (Exhibit 'E-1'). The pedicab slowed down a bit and then turned towards F. Muñoz Street, Paco, Manila. Arnold Corpuz followed Fernando Leaño to the alley and, when he saw him again, Fernando Leaño was conversing with his uncle, Reynaldo Bernardo, by the gate of the latter's house (Exhibit 'E-1'). Fernando Leaño reported to his uncle that Renato Garcia earlier uttered invectives at him and even tried to pull out his gun from the back portion of his waistline. Reynaldo Bernardo decided to have the incident reported to Police Station No. 5 of the Western Police District. Reynaldo Bernardo changed clothes, put on his shoes and, with Fernando Leaño and Arnold Corpuz, proceeded to the house of his mother, Esperanza del Rosario Bernardo (Exhibits 'E-2' and 'O-2') to borrow the latter's jeep, parked near the basketball court, along Mataas na Lupa Street, Paco, Manila, which they will use in going to the police station. The house of Reynaldo Bernardo was about twenty (20) meters away from the house of his mother.

The three (3) then turned left along Mataas na Lupa Street, towards the direction of the house of Esperanza del Rosario Bernardo. However, before they could reach her house, they had to pass by the intersection of F. Muñoz Street and Mataas na Lupa Street, Paco, Manila. The intersection was about twenty-five (25) meters away from the house of the Accused and Renato Garcia and about fifty (50) meters away from the house of Gerardo Lugos, which was near the South Superhighway already.

When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz were near the corner of F. Muñoz and Mataas na Lupa Street, Paco, Manila, Reynaldo Bernardo saw the head of Gerardo Lugos who was peeping on the side corner of the vacant store, at the said corner of the street. However, Reynaldo Bernardo gave no significance to the incident, there being no feud or misunderstanding between him and Gerardo Lugos. When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz continued on their walk, Fernando Leaño and Reynaldo Bernardo were walking side by side, Fernando Leaño on the right side of his uncle, while Arnold Corpuz was three (3) meters behind the two (2) but tried to overtake them. When the three (3) passed by the first corner of F. Muñoz Street, Paco, Manila and Mataas na Lupa Street, Paco, Manila, Arnold Corpuz saw three (3) male persons, about seven (7) to ten (10) meters away on their left side, walking along F. Muñoz Street, Paco, Manila, going towards their direction, but did not as yet recognize them at the time. However, when the three (3) male persons were near the portion of the street near the store, which was lighted by the lights emanating from the Meralco post (Exhibit 'E'), Arnold Corpuz recognized the three (3) male persons. The first was Renato (Reneng Palayok) Garcia, who was then holding a .38 caliber revolver, with his two (2) hands raised on the level of his abreast, aimed at them. Behind Renato Garcia, towards his right side, was his younger brother, the Accused and behind the Accused, to his right side, was Jerry Lugos. The Accused and Jerry Lugos were armed with handguns, also aimed at Reynaldo Bernardo. When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz were about two (2) to three (3) meters from the intersection of F. Muñoz and Mataas na Lupa Streets, Paco, Manila, Reynaldo Bernardo turned, looked towards his left, and saw Renato Garcia, the Accused and Jerry Lugos, all armed and their guns aimed at him. Reynaldo Bernardo then started to sprint toward where Renato Garcia, the Accused and Jerry Lugos were but barely had Reynaldo Bernardo taken off when Renato Garcia fired his gun, once, at Reynaldo Bernardo and hit the latter on the left side of his neck (Exhibit 'B'). Renato Garcia was then only about two (2) meters way from Reynaldo Bernardo. When Renato Garcia fired at Reynaldo Bernardo, the Accused and Jerry Lugos looked around as if acting as lookouts. Reynaldo Bernardo placed his left palm on the left side of his neck which was hit, fell, at first, on a kneeling position and then, on the ground, face down (Exhibits 'E-3' and 'O'). Instinctively, after Reynaldo Bernardo was hit, he flung and swung his hand inward, outward and sideward and, in the process, hit Arnold Corpuz who was then about to give succor to Reynaldo Bernardo. Arnold Corpuz then fell on the ground, on a sitting position. Arnold Corpuz then stood up and then fell again on a kneeling position (Exhibit 'E-4'). In the meantime, too, Fernando Leaño rushed to his uncle and tried to lift him (Exhibit 'E-5'). Fernando Leaño was then on a kneeling position. In the meantime, too, Renato Garcia, the Accused and Jerry Lugos continued walking towards where Reynaldo Bernardo was sprawled and Fernando Leaño beside him and Arnold Corpus in front of Fernando Leaño. The body of Reynaldo Bernardo was between them. Three (3) successive shots then ensued. Arnold Corpuz then decided to lie down on the ground, face down, his face on the feet of Reynaldo Bernardo, to avoid being hit with his two (2) hands under his breast. Arnold Corpuz then raised his head a little and noticed that the front portion of the head of Fernando Leaño was bulging and Fernando Leaño falling down. It turned out that Fernando Leaño was felled (sic) by a gunshot wound at the back of his head. In the process, Arnold Corpuz saw Renato Garcia, the Accused and Jerry Lugos behind Fernando Leaño, still holding their guns. Renato Garcia, the Accused and Jerry Lugos then fled from the scene together. Arnold Corpuz also fled from the scene towards the house of Esperanza del Rosario Bernardo to plead for help. On the way, Arnold Corpuz met Dominador Bernardo, Jr., the brother of Reynaldo Bernardo who came from the basketball court. Dominador Bernardo, Jr. inquired why Arnold Corpuz was running and Arnold Corpuzz (sic) replied, thus: Tinamaan si Kuya Boy at Ferdie.' (pp. 214-216, id.)[4]

The victims were taken to the Medical Center Manila at about 12:00 midnight. Subsequently, Leaño was transferred to the Orthopedic Hospital, where he died in the morning of November 4, 1990.[5]

Dr. Marcial Cenido performed an autopsy on the cadaver of Leaño and prepared a report with the following Post Mortem Findings:

EXTERNAL INJURIES AND EXTENSIONS INTERNALLY:

1. Gunshot wound, thru and thru with the following points of entry and exit:

Point of Entry – right occipital region, head, 58.5 inches from the heel, 3 cm. from the posterior midline, measuring 0.5 cm. x 0.3 cm. and with the contusion collar measures 1 cm. x 0.7 cm. and

Point of Exit – right forehead, 5 cm. from the anterior midline, 58 ¾ inches from the heel, and measures 1.3 cm. x 0.5 cm.

Course: Forwards, very slightly upwards and very slightly towards the lateral penetrating the cranial cavity and lacerating the right occipital, parietal and frontal lobes of the brain.

2. Hematoma, below the right eyebrow.

INTERNAL FINDINGS:

1. Laceration of the right occipital, parietal and frontal lobes of the brains and subrachnoid hemorrhage, and generalized pallor of the internal organs and tissues; and

2. Recovered from the stomach about a glassful of dark liquid with some rice and vegetables and without alcoholic odor.

CAUSE OF DEATH

Gunshot wound, right occipital region, head.[6]

On the other hand, Dr. Pedro P. Solis, Medico-Legal Officer of the Medical Center Manila, performed an operation on and gave medical treatment to Reynaldo Bernardo. The report he prepared showed the following findings:

Abrasion, 3 cm. x 2 cm. scalp, frontal region, left side; 3 cm. 3.5 cm x 1cm. lateral aspect, frontal region, left side. Wound, gunshot, circular in shape, 0.9 cm. in diameter, lateral aspect, neck left side, indise anterior triangle, directed medially, downwards and slightly backwards, penetrating soft tissues of the neck, involving external jugular vein, then making wound exist at right paravertebral area that the level of T3-T-4 and 3 cm. below the highest point of the shoulder.[7]

Based on the above established facts, the trial court rendered judgment, the dispositive portion reading as follows:

In view of all the foregoing, judgment is hereby rendered in the following cases to wit:

1. In People versus Felipe Garcia, Jr., Criminal Case No. 91-93374, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt of the crime of “Frustrated Homicide” and hereby sentences said Accused to an indeterminate penalty of from Four (4) Years and Two (2) months of Prision Correccional, as Minimum, to Eight (8) Years and One (1) Day of Prision Mayor, as Maximum, and to pay to Reynaldo Bernardo the amount of P115,631.00 as actual damages and P25,000.00 as moral damages;

2. In People versus Felipe Garcia, Jr. Criminal Case No. 91-93375, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt of the crime of "Homicide" and hereby metes on him an indeterminate penalty of from Eight (8) Years and One (1) Day of Prision Mayor, as Minimum to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal as maximum, and to pay to the heirs of Fernando Leaño the amount of P10,040.00 as actual damages and P50,000.00 by way of indemnity.[8]

Petitioner elevated his conviction to the Court of Appeals, which on 21 May 1998, affirmed in toto the decision of the trial court.[9] Hence, the present case, petitioner raising the following assignment of errors:

THE LOWER COURT GRAVELY ERRED IN EVALUATING EVIDENCE DIRECTED AGAINST SUSPECTS GERRY LUGOS AND RENATO GARCIA - INFERENTIALLY AGAINST ACCUSED-APPELLANT FELIPE GARCIA, JR., UNDER THE PRINCIPLE OF CONSPIRACY SO-CALLED.

THE LOWER COURT ERRED SERIOUSLY ERRED IN APPRECIATING THE FACTS AND CIRCUMSTANCES ESTABLISHED IN THE TRIAL AGAINST ACCUSED-APPELLANT AS CO-CONSPIRATOR THEREOF, AND,

III

THE LOWER COURT ERRED SERIOUSLY IN FINDING ACCUSED-APPELLANT GUILTY AS CO-PRINCIPAL IN HOMICIDE AND FRUSTRATED HOMICIDE GROUNDED ON CONSPIRACY WITH THIRD PERSONS “(GERRY LUGOS AND RENATO GARCIA) WHO ARE MERE SUSPECTS AND ‘STRANGERS’ IN THE TWO CASES AS THEY WERE NOT IMPLEADED THEREIN NOR CHARGED AS JOHN AND RICARDO DOES IN EITHER OR BOTH INFORMATIONS."[10]

Petitioner asserts that since he alone was named in the information, "it would seem by implication from the narration in the information that it was being made to appear that the accused was in fact the gunman who acted in conspiracy with unknown persons. The evidence later presented proved otherwise and it turned out that it was Renato Garcia alone who shot and wounded Reynaldo Bernardo and shot and killed Fernando Leaño. It was not, therefore, in keeping with the evidence on record proper to convict the accused based merely on the theory that there was conspiracy when no sufficient evidence to support such fact exist."[11]

Contrary to petitioner’s argument, there is no irregularity in the information to warrant a reversal of the conviction. All material facts and essential elements of the crimes, for which petitioner is charged, were alleged therein. Conspiracy was alleged in the information. Thus, it is not necessary to allege with exactitude the specific act of the accused, as it is a well-settled doctrine that in conspiracy the act of one is the act of all.[12]

Neither is the fact that the two others allegedly in conspiracy with the petitioner were not named with particularity, nor tried and convicted, of any moment. An information alleging conspiracy can stand even if only one person is charged except that the court cannot pass verdict on the co-conspirators who were not charged in the information.[13]

This Court does not doubt the guilt of the petitioner. The findings of a trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate magistrate in the appreciation of testimonial evidence. Absent any showing that trial court’s calibration of the credibility was flawed, we are bound by its assessment.[14]

An examination of the records will reveal that the prosecution witnesses positively identified the accused. Reynaldo Bernardo, who sustained injuries from a gunshot wound, narrated the incident as follows:

FISCAL PERALTA:

Where were you when this Fernando Leaño told you that a gun was poked on (sic) him?

WITNESS:

I was in our house, sir.

FISCAL PERALTA:

Can you still recall that (sic) time it was when this Fernando Leaño told you that a gun was poked on (sic) him?

WITNESS:

I think about 11:30 o’clock, sir.

FISCAL PERALTA:

And did you come to know as to what time or that date was that poking incident took place.

WITNESS:

On November 3, 1990, sir.

FISCAL PERALTA:

At what time was it, if you know?

WITNESS:

I was told at about 11:30 o'clock, sir.

FISCAL PERALTA:

You said that at around 11:40 o'clock in the evening at the corner of Mataas na Lupa and F. Muñoz street, you were with two (2) men, can you recall of any unusual incident that happened at that corner?

WITNESS:

We were shot sir. "Pinagbabaril kami."

FISCAL PERALTA:

Who shot you if you can still recall?

WITNESS:

Reneng Palayok and his two (2) other companions by the name of Peping Palayok and Jerry Lugos, sir.

FISCAL PERALTA:

How far were you in relation to the place where these men shot you?

WITNESS:

About seven (7) meters away, sir, it is very near.

FISCAL PERALTA:

Can you still recall the relative positions of these men whom you said shot you and your position at the time that (sic) shots were fired?

ATTY. UY:

I object to the question, Your Honor, on the ground that the same is very leading.

FISCAL PERALTA:

I will reform, Your Honor. You said that you were about more or less seven (7) meters away from the men. Now, my question to you is, were you hit?

WITNESS:

Yes, sir.

FISCAL PERALTA:

And where were you hit?

WITNESS:

At my (sic) left side of my neck, sir.

FISCAL PERALTA:

And at the time that you were hit on the neck, where were these three (3) men at that time?

WITNESS:

They were on my left side, sir.

FISCAL PERALTA:

And what were these three (3) men actually doing at the time that they shot you?

WITNESS:

They were armed with guns, sir.

FISCAL PERALTA:

Have you known this Rene Palayok even before November 3, 1990?

WITNESS:

Yes, sir, since we were young.

FISCAL PERALTA:

What about this Peping Palayok, have you known also this Peping Palayok?

WITNESS:

Yes, sir, I have known him also since we were young.

FISCAL PERALTA:

How about this Jerry Lugos?

WITNESS:

Yes, sir, he is my childhood mate.

x x x

COURT:

Granted.

FISCAL PERALTA:

Now, Mr. Witness, after you were hit on the left side of your neck, what happened next?

WITNESS:

I fell down, sir, face down.

FISCAL PERALTA:

And when you fell down, face down, can you still recall what happened next?

WITNESS:

After that, sir, I heard shots.

FISCAL PERALTA:

Now, if you see again that Peping Palayok whom you said was one of those who shot you, will you still be able to recognize him?

WITNESS:

Yes, sir.

FISCAL PERALTA:

Will you please look inside the Court and point to him?

WITNESS:

That person, sir.

INTERPRETER:

Witness pointing to a person who, when asked, stated his name as Felipe Garcia, Jr.[15]

One of Bernardo’s companion, prosecution witness Arnold Corpuz, testified in this wise:

FISCAL PERALTA:

Could you please tell to this Honorable Court why you were not able to reach the house of Reynaldo Bernardo?

WITNESS:

Because there were three (3) male persons who were waiting “nakaabang” for us, sir.

FISCAL PERALTA:

Why did you say that these three (3) men were waiting or “nakaabang” for you?

WITNESS:

Because while we were walking, they were already there holding guns, sir.

FISCAL PERALTA:

Do you know these persons who were holding guns?

WITNESS:

Yes, sir.

FISCAL PERALTA:

And who were these persons whom you said were waiting for you and holding guns?

WITNESS:

Reneng Palayok, Peping and Jerry Lugos, sir.

FISCAL PERALTA:

What is again the full name of this Rene(ng) Palayok, if you know?

WITNESS:

Renato Garcia, sir.

FISCAL PERALTA:

What about this Peping?

WITNESS:

Felipe Garcia, sir.[16]

In the face of petitioner's positive identification, petitioner’s defense of alibi cannot hold water. No jurisprudence in criminal cases is more settled than the rule that alibi is the weakest of all defenses, and the same should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime.[17]

The factual findings of the trial court that petitioner participated in the perpetration of the crime, such being supported by evidence on record, will not be disturbed by this Court. However, we are of the persuasion that the prosecution failed to prove with positive and competent evidence the fact that the act of the petitioner was direct or actually necessary to the commission of the crime.

The existence of conspiracy cannot be presumed. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt.[18] The mere fact that the petitioner had prior knowledge of the criminal design of the principal perpetrator and aided the latter in consummating the crime does not automatically make him a co-conspirator. Both knowledge of and participation in the criminal act are also inherent elements of an accomplice.[19] In his commentaries on the Revised Penal Code, Chief Justice Ramon Aquino explains:

The guilt of an accomplice should be predicated on an act that was done in furtherance of the commission of the crime by the principal. The accomplice must have known that the principal intended to commit a particular crime. In other words, he should have community purpose with the principal. xxx[20]

In the case of People vs. Tamayo,[21] citing the Supreme Court of Spain, this Court made the following exposition on the characteristics of an accomplice:

xxx It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but it is furthermore necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way.

In cases of doubt as to whether persons acted as principals or accomplices, the doubt must be resolved in their favor and they should be held guilty as accomplices.[22] Such principle was applied by this Court in the case of People v. Clemente:

In the case of appellants, Carlos and Pascual Clemente, while they joined their brother in the pursuit of the fleeing Matnog, and in the attack on him as he fell, yet the prosecution eyewitness was unable to assert positively that the two managed to hit the fallen man. There being no showing of conspiracy, and the extent of their participation in the homicide being uncertain, they should be given the benefit of the doubt, and consequently they are declared to be mere accomplices in the crime.[23]

After a circumspect examination of the evidence, we find that other than a showing that petitioner assisted Renato Garcia in the slaying of Fernando Leaño and the infliction of injuries upon Reynaldo Bernardo, the prosecution failed to present other evidence which would positively establish the existence of conspiracy. Thus, this Court is of the belief that petitioner-accused should only be held liable as an accomplice. This seems to be the more reasonable and safer course.

Even if we were to agree with the trial court that conspiracy existed between accused-petitioner and two other malefactors, in particular Renato Garcia, who was positively identified as the gunman, still this Court is of the conviction that the petitioner should only be held liable as an accomplice. petitioner’s participation was hardly indispensable. As the trial court pointed out, the petitioner merely acted as a “lookout.” The testimony of Arnold Corpuz is telling:

FISCAL PERALTA:

And what happened after you saw these three (3) men waiting for you armed with guns?

WITNESS:

They fired a gun once and “Kuya Boy” was hit, sir.

FISCAL PERALTA:

What part of the body of Boy was hit?

WITNESS:

Here, sir.

INTERPRETER:

Witness pointing to the left portion of his neck.

COURT:

I cannot understand that. You said that they fired once. How many fired?

WITNESS:

Only one, Your Honor.

FISCAL PERALTA:

Who was that person who fired the gun?

WITNESS:

Mang Rey or Rey Palayok, sir.

FISCAL PERALTA:

And you said that there were three (3) of them. What did these Peping and Jerry Lugos do when Rene Palayok fired a gun that hit your “Kuya Boy”?

WITNESS:

They were behind Mang Rene, sir.

FISCAL PERALTA:

You said that they were behind Rene Palayok. What did they do afterwards after Rene fired a gun that hit your “Kuya Boy”?

ATTY. UY:

Very leading, Your Honor.

COURT:

May answer.

WITNESS:

They were looking around holding their guns as if they were acting as look outs, sir.

FISCAL PERALTA:

After your Kuya Boy was hit on the neck, what happened next?

WITNESS:

I saw Fernando went (sic) near his uncle so that he could lift his uncle, sir.

FISCAL PERALTA:

Was he able to lift his uncle Reynaldo Bernardo?

WITNESS:

Not anymore, sir, because there were continuous firing of guns about three (3) times.

FISCAL PERALTA:

What happened to Fernando Leaño when there was a continuous firing for at least three (3) times?

ATTY. UY:

Leading, Your Honor.

COURT:

May answer.

WITNESS:

He was hit on the back of his head, sir.

INTERPRETER:

Witness pointing to the right back portion of his head just behind his right ear.

FISCAL PERALTA:

And do you know who shot this Fernando Leaño?

WITNESS:

Yes, sir. It was Mang Rene.

FISCAL PERALTA:

What did the companions of Rene Palayok do when Rene Palayok shot Fernando Leaño?

ATTY. UY:

Very leading, Your Honor.

COURT:

May answer.

WITNESS:

They were acting as aide and they were following Rene Palayok, sir.[24]

As can be seen from the above testimony, petitioner's participation was hardly indispensable. In the case of People v. Nierra,[25] this Court made the following ruling:

After a conscientious reflection on the complicity of Doblen and Rojas, we have reached the conclusion that they should be held guilty as accomplices. It is true, strictly speaking, that as co-conspirators they should be punished as co-principals. However, since their participation was not absolutely indispensable to the consummation of the murder, the rule that the court should favor the milder form of liability may be applied to them.

In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character.

WHEREFORE, the herein questioned decision of the Court of Appeals affirming the decision of the Regional Trial Court is hereby MODIFIED to wit:

1. In People versus Felipe Garcia, Jr., Criminal Case No. 91-93374, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt as an ACCOMPLICE in the crime of “Frustrated Homicide” and hereby sentences said Accused to an indeterminate penalty of Four (4) months of Arresto Mayor, as Minimum, to Four (4) years and One (1) Day of Prision Correcional, as Maximum;

2. In People versus Felipe Garcia, Jr. Criminal Case No. 91-93375, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt as an ACCOMPLICE in the crime of "Homicide” and hereby metes on him an indeterminate penalty of Two (2) Years of Prision Correccional, as Minimum, to Eight (8) Years and One (1) Day of Prision Mayor, as Maximum.

No pronouncement as to cost.

SO ORDERED.

Puno, and Pardo, JJ., concur.

Davide, Jr., C.J., (Chairman), I vote to convict him as principal.

Ynares-Santiago, J., on leave.