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[PEOPLE v. MANUEL Y. TAYO](http://lawyerly.ph/juris/view/c6a21?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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EN BANC

[ GR No. 52798, Feb 19, 1986 ]

PEOPLE v. MANUEL Y. TAYO +

DECISION

225 Phil. 343

EN BANC

[ G.R. No. 52798, February 19, 1986 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MANUEL Y. TAYO, ACCUSED WHOSE DEATH SENTENCE IS UNDER REVIEW.

D E C I S I O N

AQUINO, C.J.:

This is an automatic review of the decision of the Circuit Criminal Court at Cebu City, convicting Manuel Y. Tayo of the complex crime of murder and multiple frustrated murder, sentencing him to death and ordering him to pay P32,000 as indemnity to the heirs of Jimmy (Jessie) Pongos, P10,000 as compensatory damages to Mr. and Mrs. Manuel Toledo and P700 as compensatory damages to Mauro Ahid (Ahig).

The prosecution's evidence shows that between ten and eleven o'clock in the evening of July 31, 1978 Mauro Ahid, the watchman, saw Manuel Y. Tayo, 23, a former army draftee, throwing a hand grenade into the second floor of the Super Chicks Nightclub located at the South Superhighway, Cebu City.  The owner, Manuel Toledo; his wife Rose Toledo, who was also the cashier, and his employees were wounded.  Jimmy Pongos, the organist, was mortally wounded.  He died because of his shrapnel wounds (Exh. A).

After throwing the grenade, Tayo left and, on reaching the landing, fired his handgun four times in the direction of the compound of the Cebu Autobus Com­pany, as if to scare pursuers, then fled to V. Rama Avenue.

Manuel Toledo underwent surgery.  He was confined in the hospital for nine days.  His hospitalization expenses amounted to P10,000 to P12,000.  Ahid was hospitalized for seven days.  His feet were injured by shrapnel.

Tayo, who used to be a janitor at the Visayan Electric Company, testified that in the evening in question he was at his home in Sitio Tisa, Labangon, Cebu City.  He had fever and stomachache.  He took some medicines.  At eleven-thirty he went by jeepney to the house of his friend, Rollie Cuizon, on Calamba (now V. Rama) Street, Labangon, Cebu City to attend a bap­tismal party.  He arrived at Cuizon's place at midnight.  He denied having thrown the grenade.

He admitted that when he was an army trainee in 1975 he was investigated for throwing a grenade at the dance in Yati, Liloan, Cebu (15 tsn Dec. 28, 1979).  The trial court did not believe Tayo's alibi.

His counsel de oficio contends that the trial court erred in not finding that Tayo's identity was not satisfactorily established, that his guilt was not proven beyond reasonable doubt and that the award of damages was not justified.

We hold that Tayo's guilt was proven to a moral cer­tainty.  Two days after the throwing of the hand gre­nade, Tayo was arrested in the house of the victim, Pongos, allegedly his friend.  He was among those keeping vigil over the remains of Pongos.  He was identified by Ahid and by Romeo Fernandez, the floor manager of the nightclub.  Pongos' residence was located at V. Rama Avenue (p. 5, Record).

The accused was charged with having committed murder and multiple frustrated murder by throwing a hand grenade which exploded and hit the victims.  It was alleged that he acted with treachery and premeditation.  The trial court assumed that the qualifying circumstance was treachery.

The correct view is that this is a case of killing by explosion.  (People vs. Guillen, 85 Phil. 307; People vs. Gallego and Soriano, 82 Phil. 335; People vs. Agcaoili, 86 Phil. 549; People vs. Francisco, 94 Phil. 975.)

The single act of throwing the grenade resulted in murder as to Pongos, frustrated murder as to Toledo and attempted murder as to Ahid.  As the crime is com­plex, the death penalty was properly imposed (Arts. 48 and 248, Revised Penal Code).

However, for lack of the necessary ten votes, the next lower penalty, reclusion perpetua, should be imposed.

WHEREFORE, the judgment of the trial court is affirmed with the modification that in lieu of the death penalty, reclusion perpetua is imposed on the accused.  Costs de oficio.

SO ORDERED.

Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, Dela Fuente, Alampay, and Patajo, JJ., concur.
Gutierrez, Jr., on leave.





CONCURRING


CUEVAS, J.,

considering the circumstances under which the crime was committed and the manner by which it was perpetuated, appellant deserves no less than the death penalty which. I vote to affirm.

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