OF THE PHILIPPINES
For consideration of the Court are several motions, to wit:
1. Notices of Appeal filed by Atty. Eric S. Carin on behalf of the
convicts James Andrew and James Anthony S. Uy, and by Atty. Sisinio M.
Andales, on behalf of convict Josman Aznar, appealing to the Honorable
Supreme Court the Judgment of this Court in these cases.
2. Motion filed by Atty. Alfonso dela Cerna - on behalf of Simplicio
Paghinayan, the registered owner of the motor vehicle (van) allegedly used
in the commission of the crimes in these cases - for the release of said
3. Motions to transfer their respective convicted clients to the New
Bilibid Prisons in Muntilupa, Rizal, and include them among the prisoners
to be transferred from the BBRC to the National Penitentiary on Friday,
May 14, 1999, filed by Attys. Teodoro C. Villarmia, Jr., Eric S. Carin,
and Atty. Anacleto G. Debalucos for the Public Attorney's Office.
4. Motion for Partial Reconsideration of the Judgment in these cases filed
by Private Prosecutors Attys. Honorato D. Hermosisima, Jr. and Joshua N.
Dacunos with the written conformity of Cebu City Prosecutor Primo C. Miro,
praying that said Judgment "be reconsidered and another one be issued
sentencing the accused to two death penalties each."
The Court shall now resolve these pending motions in seriatim as follows:
1. The aforesaid Notices of Appeal - having been filed within the reglementary period, are hereby given due course.
2. The Motion to release motor vehicle filed by Atty. de la Cerna is
hereby referred to the Cebu City Prosecutor's Office for comment and
4. As regards the Motion for Partial Reconsideration filed by the Prosecution, Rule 120, Section 7, of the Rules on Criminal Procedure pertinently provides:
"Modification of Judgment - A judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting the appeal, or when the sentence has been partiality or totally satisfied or served, or the accused expressly waived in writing his right to appeal, or the accused has applied for probation."
According to the above cited Rule, only the accused may move for the modification of a judgment of conviction before it becomes final or before appeal is perfected. The subject Motion was filed by the Prosecution, hence, the Court does not see how its Judgment could still be modified - so as to impose the Death Penalty on the accused instead of Reclusiones Perpetua. That would clearly be violative of the above cited provision, and the rule of law must perforce be observed.
Moreover, this Court is now even more convinced of the righteousness of
its ruling that the death penalty should not be imposed in these cases -
because there are very serious doubts in the mind of this Court as
to the identity of the corpse found at Sitio Tan-awan, Carcar, Cebu.
In the view of the Court, there appears to have been deliberate intent on the part of the Police and the Prosecution not to present frontal, close-up pictures of the face of the said corpse - which surely must have been taken or photographed both at the ravine were the corpse was found at about 10 A.M. of July 18, 1997 (per the testimony of Policemen Arturo Unabia of the Carcar Police) and at the Tupaz Funeral Parlor where the corpse was immediately brought thereafter. That woman had been dead for only about 30 hours and her face was perfectly intact and recognizable - as shown by the distant, angular photos of said corpse submitted to the Court. It is unthinkable and unbelievable that the Police had not taken frontal, close-up photos of the face
(NOTE: For the benefit of our foreign readers, blue wordings is our translation from English to Tagalog (Philippine language). ....the webmaster)
Why did the Police and the Prosecution deliberately not present
frontal, close-up photos of the face of that corpse? Which any person with
average intelligence would assume must surely have been taken by the
police investigators? Why did they decide to not present or in effect suppress
such facial photos? Because the pictures would show that the dead woman
was not Marijoy? There is legal presumption "that evidence willfully
suppressed would be adverse if produced" (Rule 131, Sec. 3.e).
Further, a July 20, 1997 clipping of the Sun-Star Daily was identified in
open court, submitted by Atty. Fidel Gonzales, reporting "that the
Homicide Section Chief Florencio Diaz declared that the body of a girl
found at Sitio Tan-awan does not belong to one of the missing Chiong
girls." (TSN Aug. 19, 1998, p. 122). Is this the reason why the
Police chose not to present the frontal close-up photos of the face of
that corpse? - because the face photographed does not belong to one of the
missing Chiong girls?
Further, in her testimony before this Court, Mrs. Thelma Chiong herself
admitted that she did not actually see that corpse after it was
retrieved from the ravine at Carcar.
"COURT STENOGRAPHER: (Repeating the question)
A Because when my husband showed
me the pictures, deep in my heart I knew it was my daughter Marijoy. But I just refused to accept that my
daughter will be handcuffed,masking tape on her face, raped and brutally killed and
dropped in a deep ravine and I just refused to accept that thing happened to my daughter.
My beloved daughter will be just like that and I asked my husband if the fingerprint of that girl in
Carcar will match the fingerprint of my daughter
then I will
accept that she is the one. But one
(1) Thursday morning, I could not forget it was July 24, one (1) week, after a policemen came at lunch
when we were
taking our lunch and the policemen told me by
saying: "Mam, that was really
your daughter in Carcar because her
fingerprint matched." And so, I said, "How sure are you that the fingerprint matched?" And then the policemen
me "Mam, you pity your daughter because we had to split the fingers
daughter because her fingers could not be fingerprinted anymore."
The question that thus mystifies the Court is: Is it normal and logical
for the mother of girl - who was reportedly kidnapped, raped and murdered
- not to even want to see the face of her dead daughter two days after,
she was allegedly dumped into a ravine in order to verify if it was really
her daughter? It was already July 24 (8 days after the kidnapping and 5
days after Mrs. Chiong learned from her relatives that the corpse was
Marijoy) that Mrs. Chiong finally came to accept the identify of the
corpse as Marijoy's - because the police then allegedly told her that the
fingerprint matched. But why would a mother not even want to see if the
body recovered was that of her kidnapped daughter - immediately after
recovery or at least a reasonable time thereafter? (TSN Aug. 19, 1998, p.
According to her testimony, it was on July 19, 1997 that Mrs. Chiong learned from her son Dennis and her two (2) brothers and auntie that the girl found at the bottom of the ravine at Tan-awan - whom they saw lying at the Tupaz Funeral Parlor - was Marijoy. Inspite of this knowledge, Mrs. Chiong did not think of going to that Funeral Parlor herself to look at the face and
Further, the following portions of the testimony of Mrs. Chiong are
Q Did you happen to read the SunStar
newspaper dated July 23, 1997, wherein
they quoted your son Dennis by saying that the corpse found in Carcar was
not that of that of Marijoy because the corpse
had long hair?
A Yes, May I explain why he said that?
A Dennis, Your Honor.
Q You mean that is the reason
why Dennis denied before the media
that body was Marijoy because of what you told him?
A Yes, Your Honor". (TSN
Aug. 19, 1998, p. 57).
The Court finds Mrs. Chiong's above testimony intriguing because - if even
Marijoy's brother, Dennis, himself who actually saw that corpse in
the funeral parlor was doubtful that it was his sister's "because
the corpse has long hair" - how much more doubtful is this Court which was never shown even a photo of
the face of the corpse?
The Court cannot just rely blindly on the testimony of P/Insp. Edgardo
Lenizo that he found the skin tissues that had been sliced off the right and left
thumbs of that corpse "perfectly matched" the thumb prints of Marijoy
as appearing in her Voters Registration. Because if the police
wanted to make the public accept that the corpse was Marijoy's (as
the Court suspects) then Police Inspector
Lenizo may be regarded as a biased and interested witness. How come the
members of Chiong family who
allegedly saw that corpse were not made to testify in Court and identify it as Marijoy? It was only Thelma Chiong who
testified that her husband Dionisio and her son Dennis had told her
that they were convinced that the corpse was
Marijoy's - but that was hearsay. Why
As for "dehumanizing treatment" the Court is not inclined to
regard the act of the accused of making Jacqueline dance while they sat
around her in a circle (absent sufficient proof of rape and/or homicide) -
as "dehumanizing treatment" - enough to warrant imposition of
the death penalty.
WHEREOF, the aforesaid Motion for Partial Reconsideration is hereby
Given in open court this 13th day of May 1999 at
THE ABOVE TEXT IS THE FAITHFUL REPRODUCTION OF THE ORIGINAL
DOCUMENT REFORMATTED FOR CLEARER APPRECIATION.