PEOPLE vs.
LAHOYLAHOY During the next day or two after the tragedy above narrated, the defendant
This case is submitted to the Supreme Court for review of a decision of the Court of
First Instance of the Province of Iloilo, sentencing the defendants Pedro Lahoylahoy
and Marcos Madanlog to death upon a complaint charging the crime of robbery with
multiple homicide under the circumstances stated below.
It appears that in the year 1912 some ten or a dozen people were living on the
small island of Sicogon, in the jurisdiction of the municipality of Balasan, Province of
Iloilo. Two of these were an aged couple named Francisco Seran and his wife Juana.
Two others were Roman Estriba and his wife Rosa. The latter couple had two
children Miguela and Bartolome, aged at that time respectively about 14 and 9
years. Upon the night of the commission of the crime charged in the complaint the
two children were staying with Juana, their grandmother, in a house some distance
removed from that occupied by Roman and Rosa and located farther back from the
shore. The grandfather, Francisco, had gone to the beach as was his custom to
watch for turtles. After the grandmother and the children had gone to rest on a mat
where they slept together, and probably only a short while after it had become
dark, the two accused appeared and demanded money of Juana. She gave them
P100 in money in response to this demand, and the accused then required the three
to leave the house and go in the direction of the sea. When the party had arrived at
or near the beach, a further demand was made upon the old woman for money,
which demand she was unable to comply with. Lahoylahoy then struck her with a
bolo just below her breast, killing her instantly. The two children were at the time
close to their grandmother, and being greatly frightened, they ran away separately
for some distance and remained hidden during the night in the bushes.
The next morning the children made their way to the house where the old couple
had lived, which was vacant; but they there found each other and proceeded
together to the house of their parents. Going in that direction they stopped at the
house of their sister, the wife of the defendant Madanlog. When they went a little
later to the house where their parents had lived, the fact was revealed that
Francisco, Roman, and Rosa had also been killed. All the bodies were collected and
buried early in the morning by the two accused, assisted by Eugenio Tenedero, son-
in-law of Lahoylahoy. The two children Miguela and Bartolome say that they were
threatened with death if they should make complaint. Nevertheless their lives were
spared, and for sometime they stayed with their sister in the home of Madanlog;
and after staying for a long time on the island, they were afterwards taken to the
home of another sister, named Dionisia Estriba, at Escalante, on the Island of
Panay. They here revealed the facts above narrated. This sister, Dionisia,
afterwards filed the complaint in this case. Pedro Lahoylahoy was arrested first; and
when he was examined before the justice of the peace, he made a confession in
which he stated that the four deceased persons had been killed by Madanlog, with is
assistance.
At the trial the two children gave a very consistent account of the robbery and of
the murder of their grandmother; but the boy said that he did not remember that
Madanlog was present when Lahoylahoy struck the fatal blow. Another important
witness for the prosecution was Eugenio Tenedero, the son-in-law of Lahoylahoy.
This witness testified that the defendants killed the four deceased persons, and that
early in the morning they came to his house and required him to help them bury the
dead, which he did. The accused gave no explanation to Tenedero of their motive or
of the reason for the commission of the deed, and told him not to tell anybody.
Madanlog went to the house where Francisco and Juana had lived and carried away
some palay, some dawa, three pigs, and a trunk containing wearing apparel. We
believe that the asportation of these things should not be considered as a
continuation of the acts of robbery and murder previously committed, but rather as
a spoliation of the state of a deceased person. It results that the only property
taken in the act of robbery was the P100 obtained from Juana.
As against Madanlog, the case rests chiefly upon the testimony of Miguela, who says
he was present at the robbery and at the murder of Juana. His guilt is also indicated
by his own conduct subsequent to the murder. We are satisfied with the conclusion
reached by the lower court with respect to the sufficiency of the evidence, and we
have no doubt of the guilt of both the accused HznfhicZex.
An important question arises upon the matter of the complaint in connection with
the proof as to the ownership of the property which was taken by the accused. The
part of the complaint here material to be considered reads as follows:
The aforesaid accused taking advantage of the darkness of the night, voluntarily,
illegally, and criminally and by means of force on the things, took and appropriated
to themselves with intent of gain and against the will of the owner thereof, the sum
of P100, 5 bayones of palay, 4 bayones of dawa, and 1 trunk which contained
various wearing apparel, of the total value of P150, the property of Roman Estriba;
in consequence thereof and on the occasion of the said robbery, the aforesaid
accused criminally and with known premeditation and treachery, killed Roman
Estriba, Rosa Galoso, Francisco Seran, and Juana.
According to the proof the person robbed was Juana; while the complaint charges
that the property taken belong to Roman Estriba. What is the effect of this variance
between the language of the complaint and the proof? Subsection 5 of section 6 of
General Orders No. 58 declares that a complaint or information shall show, among
others things, the names of the persons against whom, or against whose property,
the offense was committed, if known. The complaint in this case therefore properly
contained an averment as to the ownership of the property; and upon principle, in
charging the crime of robbery committed upon the person, the allegation of the
owner's name is essential. But of course if his name cannot be ascertained, it may
be alleged that it is unknown.
From the fact that the name of the injured person may, in case of necessity, be
alleged as unknown it should not be inferred that the naming of such person, when
known, is of no importance. Where the name of the injured party is necessary as
matter of essential description of the crime charged, the complaint must invest such
person with individuality by either naming him or alleging that his name is
unknown. (Wharton, Criminal Pleading and Practice, 9th ed., secs. 111, 112.) It is
elementary that in crimes against property, ownership must be alleged as matter
essential to the proper description of the offense.
To constitute larceny, robbery, embezzlement, obtaining money by false pretenses,
malicious mischief, etc., the property obtained must be that of another, and
indictments for such offenses must name the owner; and a variance in this respect
between the indictment and the proof will be fatal. It is also necessary in order to
identify the offense. (Clark's Criminal Procedure, p. 227. See also page 338.)
Now a complaint charging the commission of the complex offense of robbery with
homicide must necessarily charge each of the component offenses with the same
precision that would be necessary if they were made the subject of separate
complaints. It is well recognized in this jurisdiction that where a complex crime is
charged and the evidence fails to support the charge as to one of the component
offenses the defendant can be convicted of the other. The mere circumstance that
the two crimes are so related as to constitute one transaction in no way affects the
principles of pleading involved in the case. To permit a defendant to be convicted
upon a charge of robbing one person when the proof shows that he robbed an
entirely different person, when the first was not present, is violative of the
rudimentary principles of pleading; and in addition, is subject to the criticism that
the defendant is thereby placed in a position where he could not be protected from
a future prosecution by a plea of former conviction or acquittal. If we should convict
or acquit these defendants today of the robbery which is alleged to have been
committed upon the property of Roman Estriba, it is perfectly clear that they could
be prosecuted tomorrow for robbery committed upon the property of Juana; and the
plea of former jeopardy would be of no avail.
Reference to a few accredited decisions from American courts will make this clear.
In Comm. vs. Hoffman (121 Mass., 369), it was held that an acquittal on an
indictment for breaking and entering the dwelling house and stealing therein, the
property of A, is no bar to a complaint for stealing in the same dwelling house at the
same time the property of B, without proof that A and B are the same persons.
In Comm. vs. Andrews (2 Mass., 409), the defendant in an indictment for receiving
stolen goods which were the property of A, alleged that he had been convicted of
receiving stolen goods the property of B. The plea was adjudged insufficient,
although it was alleged that the two parcels of stolen goods were received by the
defendant of the same person, at the same time, and in the same package, and
that the act of receiving them was one and the same.
In Alexander vs. State (21 Tex. Cr. App., 406; 57 Am. Rep., 617), it was held that
where the goods of two different owners were stolen at the same time, an acquittal
on an indictment for stealing the goods of one would not constitute a bar to an
indictment for stealing the goods of the other; though it was observed that if the
defendant had been convicted upon the first trial, he would have been protected
from the second prosecution. (See Wright vs. State, 17 Tex. Cr. App., 152.)
In Comm. vs. Wade (17 Pick. [Mass.], 395), the offense of burning a building was
charged, and the indictment stated that the owner was a certain individual (naming
him). It was held that, although the name might possibly have been omitted
altogether, yet as the indictment did allege the name, the allegation of ownership
was material, being descriptive of the offense, and must be proved hJx3zbq.
It should be borne in mind that the plea of former conviction or acquittal, or former
jeopardy, is supposed to be proved by the pleadings and judgment in the former
case, supplemented only by proofs showing the identity of the party, or parties.
Courts are not accustomed to determine the plea of former jeopardy by examining
the proof to discover just what facts may have been developed in the former case.
(Henry vs. State, 33 Ala., 389; Grisham vs. State, 19 Tex. Cr. App., 504.) In fact it
is not always practicable or even possible to produce for inspection upon the trial of
this issue the evidence which was adduced in court at the trial of the former case.
The second sentence of section 7 of General Orders No. 58 declares that when an
offense shall have been described with sufficient certainty to identify the act, an
erroneous allegation as to the person injured shall be deemed immaterial. We are of
the opinion that this provision can have no application to a case where the name of
the person injured is matter of essential description as in the case at bar; and at
any rate, supposing the allegation of ownership to be eliminated, the robbery
charged in this case would not be sufficiently identified. A complaint stating, as does
the one now before us, that the defendants "took and appropriated to themselves
with intent of gain and against the will of the owner thereof the sum of P100" could
scarcely be sustained in any jurisdiction as a sufficient description either of the act
of robbery or of the subject of the robbery. There is a saying to the effect that
money has no earmarks; and generally speaking the only way money, which has
been the subject of a robbery, can be described or identified in a complaint is by
connecting it with the individual who was robbed as its owner or possessor. And
clearly, when the offense has been so identified in the complaint, the proof must
correspond upon this point with the allegation, or there can be no conviction Q4zCo.
In United States vs. Kepner (1 Phil. Rep., 519), this court had before it a case
where the defendant was charged with estafa in the misappropriation of the
proceeds of a warrant which he had cashed without authority. It was said that the
erroneous allegation in the complaint to the effect that the unlawful act was to the
prejudice of the owner of the check, when in reality the bank, which cashed the
warrant was the sufferer, was immaterial. This observation was, we think, correct
as applied to that case, for the act constituting the offense of estafa was described
in the complaint with sufficient fullness and precision to identify the act, regardless
of the identity of the offended person. Section 7, General Orders No. 58, was
therefore properly applicable. It should be added, however, that the observation to
which reference has been made was, strictly speaking, unnecessary to the decision,
for it is further stated in the opinion that there was in fact an injury to the owner of
the check, which consisted of the "delay, annoyance, and damage caused by the
unlawful misappropriation of the warrant." (U.S. vs. Kepner,1 Phil. Rep., 519,
526.) There is evidently nothing in the case cited which can afford support for the
idea that an erroneous allegation in a complaint as to ownership of the property
robbed is immaterial. If we should hold that a man may be convicted of robbing one
person when he is charged with robbing another, the complaint instead of being a
means of informing him of the particular offense with which he is charged would
rather serve as a means of concealing it.
It is important to note that the complaint in this case is not defective in form, for
the charge is clear, direct, and unambiguous. No formal objection could possibly be
made by the defendants to this complaint; and their only course, if desirous of
making any defense, was to plead not guilty, as was done in this case. The difficulty
of the case arises from the facts adduced in evidence. Section 10, General Orders
No. 58, declares that no complaint is insufficient by reason of a detect in matter of
form which does not tend to prejudice a substantial right of the defendant upon the
merits. This provision has no application to such a case as that now before us; and
all arguments based upon the circumstance that the defendants made no objection
to the complaint in the Court of First Instance are irrelevant to the matter in hand.
The case of United States vs. Manalang (2 Phil., Rep., 64) has been called to our
attention as an authority upon the point that insufficiency of a complaint is waived
by failure of the defendant to object thereto in the Court of First Instance. It there
appeared that the statutory offense with which the defendant was charged could
only be committed by a Constabulary officer. There was no allegation in the
complaint that the defendant was such; but he appeared at the trial, testified in his
own behalf, without questioning his character as such officer. It was held upon
appeal that the objection to the complaint on the ground stated was unavailing, "as
no exception was taken to this defect by counsel for the defendant in the court
below, in which it might have been successfully raised by demurrer." The defendants were charged in the Court of First Instance of Iloilo with the crime
of robbery with murder. The crime took place on a small island where the deceased
The following cases are also found in our Reports, showing that a complaint may be lived together. The defendants were found guilty and given the death penalty. The
held sufficient although the commission of the offense is charged by inference only, proof in relation to the law shows conclusively that they merit such punishment.
provided no objection is made in the court below. (U.S. vs. Cajayon, 2 Phil. Rep.,
570; U.S. vs. Vecina, 4 Phil. Rep., 529; U.S. vs. Sarabia, 4 Phil. Rep., 566.) In The information charged that the owner of the property was Roman Estriba while
all of these cases the complaint was demurrable for defect of substance, but the the evidence disclosed that the owner was Juana N. Seran. No objection to the
language used was so far sufficient that the commission of the crime could be information was made in the lower court. Objection to its insufficiency was therefore
inferred. These cases are not relevant to the case at bar, as the complaint is not waived. (U.S. vs. Manalang [1903], 2 Phil. Rep., 64.) Notwithstanding, and
demurrable for defect of any sort. although neither the attorney for the defendant nor the Attorney-General raises the
point on appeal, this court would, by hypercritical examination, now solemnly
In the light of what has been said it is evident that, by reason of the lack of adjudge the information to be fatally defective and would thereby cheat the gallows
conformity between the allegation and the proof respecting the ownership of the of its prey. Conceding that the court has this prerogative, yet no substantial right of
property, it is impossible to convict the two accused of the offense of robbery the defendants was prejudiced. Neither the trial court, the prosecution, nor the
committed by them in this case; and therefore they cannot be convicted of the defense were misled as to the issue being that robbery and murder were
complex offense of robbery with homicide, penalized in subsection (1) of article 503 simultaneously committed. As to which one of the group had title to the property
of the Penal Code. No such difficulty exists, however, with respect to the quadruple was relatively unimportant. Such a technical finding in my judgment violates both
homicide committed upon the persons named in the complaint; and in conformity the letter and the spirit of our law and jurisprudence. "The bill of rights for the
with the provisions of article 87 of the Penal Code, the penalties corresponding to all Philippines giving the accused the right to demand the nature and cause of the
these crimes must be severely imposed. This court has already held in United States accusation against him does not fasten forever upon those Islands the inability of
vs. Balaba (37 Phil. Rep., 260), that where more than one offense (not complex the seventeenth century common law to understand or accept a pleading that did
offenses) are charged in the complaint, and the accused fails to demur or ask for a not exclude every misinterpretation capable of occurring to intelligence fired with a
severance, the penalties corresponding to all of the offenses which are charged and desire to pervert." (Paraiso vs. U.S. [1907], 207 U.S., 368; Whitehead vs. U.S.
proved may be imposed. The doctrine announced in that case applies with even [1917], 245 Fed., 385; and a multitude of corroborative authority.) To liberalize and
greater propriety offenses in one complaint. (See sec. 11, General Orders No. 58.) modernize procedure should be our goal.
SANA LIM
The acts causing the violent death of the four deceased must be qualified as
homicide, as the record does not satisfactorily show how and in what manner they
were executed zEP3hdt. September 11, 1913, the Moro named Jamilassan disembarked from a vinta or small native
boat, in which he and other moros were travelling, upon the beach of the barrio of Simala,
Even conceding the benefits or article 11 of the Penal Code, this circumstance, as pueblo of Sibonga, Island of Cebu, carrying with him 101 tins of opium, belonging to his
regards both defendants is counterbalanced by the aggravating circumstances of employer, the Moro Tahil, for the purpose of selling the drug; that Jamilassan thereupon went to
nocturnity and that the crime was committed in an uninhabited place, and, as the store of the Chinaman King Kong Kiang (alias Esteban), situated in the said barrio and near
respects Marcos Madanlog, by that of relationship by affinity. The accused Pedro the shore, to sell the opium, but that this Chinaman, instead of agreeing to buy it, went to the
Lahoylahoy has accordingly become liable to four penalties, each of seventeen years town of Sibonga and proposed its purchase to another Chinaman named Sionga, who in turn
four months and one day, reclusion temporal, and his co-accused Marcos Madanlog approached another Chinaman named Sana for the same purpose; that, as Sana did not have
also, to the same number of penalties of twenty years each, reclusion temporal, for the money, Sionga then went to the municipal treasurer of the pueblo, Tiburcio Ricabalnca, to
the homicide of the four deceased, each also being liable to one-half of the costs report the fact that the opium was being offered for sale; that Ricabalnca thereupon conceived
7L5IsJKB4E. the idea of seizing the opium brought by the Moro Jamilissan, with the intent to obtain in lawful
gain, and, with this purpose in view, arranged that one of the Chinaman should pretend that he
In view of rule 2 of article 88 of the Penal Code, inasmuch as the maximum duration would buy the opium and upon his acquiring it the treasurer and his accomplices would proceed
of three times the length of the most severe of the penalties to be imposed upon to arrest the Moro, seize the opium for the purpose of appropriating it to themselves, substitute
molasses for a part of it and it deliver t the authorities the molasses and a part of the opium so
the accused exceeds forty years, the judgment reviewed is reversed, and we find
seized, together with the bearer of the drug.
that each of the accused Lahoylahoy and Madanlog should be, as they are hereby,
sentenced to suffer of aforesaid penalties of reclusion temporal, not to exceed forty
years, to the accessories prescribed by article 59, to indemnify, severally and           In order to carry out the plan thus conceived, the Chinamen Sionga and Dina went to the
jointly, the heirs of each of the deceased in the amount of P1,000 and each to pay pueblo of Carcar to buy molasses from the Chinaman Yap Chian, while the treasurer Ricablanca
one-half of the costs of both instances. So ordered. gave orders to the police sergeant Eleno Suizo to take two subordinates, dressed as civilians
and without uniforms, and accompany those who were to execute the deed. On the night of the
Arellano, C.J., Torres, Johnson and Araullo, JJ., concur 7nBg. said 11th of September, 1913, the Moro Jamilassan, who, with his companions and his
employer Tahil, was in the small boat anchored off the shore of the said barrio, believing that the
Chinaman would buy the opium, went ashore carrying a sack that contained 101 tins of opium
Separate Opinions
worth P3,333, or P33 a tin. Prior to his leaving the boat, the defendants had posted themselves
in the vicinity of the place where the Moro was to land. When Jamilassan, who was carrying the
MALCOLM, J., dissenting: opium, drew near to Sionga, the pretended purchaser, the latter, according to an arrangement
previously made with his companions, twice lit some matches, whereupon the defendants
appeared upon the scene preceded by the sergeant and his policemen who, brandishing their
weapons to frighten the Moro, arrested him and seized the opium he was carrying in the sack. At
this moment, as the Moro succeeded in escaping toward the boat, the sergeant fired his revolver
four times and the treasurer Ricablanca also fired his. Thereupon the Moros in the boat
precipitately filed from the shore, but the one who carried the opium was finally captured.
          The defendants then appropriated to themselves 77 tins of the opium, set aside 12 of
them, and for the contents of the remaining 11 tins they substituted molasses, 1 tin having been
lost. These 12 tins of opium and 11 tins of molasses were delivered by them to the authorities as
having been legally seized the possession of the Moro Jamillasan, the bearer of the drug.
          By reason of the foregoing facts, the provincial fiscal filed in the Court of First Instance a
criminal complaint against the Chinese appellants, the municipal treasurer of the pueblo of
Sibonga, some policemen and others who took part, charging them with having seized opium of
the value of P3,300, the property of a Moro named Tahil, willfully, maliciously, and criminally,
with intent to gain and by the use of violence and intimidation against the person of the Moro
Jamilassan, who was carrying the said drug.lawph!1.net
          Article 502 of the Penal Code prescribes that the crime of robbery is committed by any
person who, with intent to gain, shall take any personal property by the use of violence or
intimidation against any person or force upon any thing.
          Although the subject matter of the robbery was an article whose introduction, use, and
keeping were, and are, strictly prohibited by the laws in force in these Islands, wherefore all
public officers vested with authority, and their agents, are under obligation to prosecute any
violation of the law and to seize the prohibited drug and all similar substances which are of
course confiscated, unless their use or keeping has been expressly authorized by competent
authority; yet, when it has been fully proved at the trial that the capture and seizure of the opium
was effected by a public officer, assisted by agents of the authorities, with the decided intent to
gain thereby the price or value of the opium so seized, and not with the intention to comply with
the law and further the purposes of the Government in the eradication and suppression of the
vice of its use, one which is very prevalent among the Chinese residents of these Islands and is
also spreading among the active inhabitants; and when the commission of the unlawful act was
attended by violence and intimidation against the person who was carrying the opium, it is
improper to consider such taking and seizure as lawful and permissible, even though executed
by agents authorized to arrest and prosecute opium smugglers, inasmuch as the seizure of the
opium was effected with intent to gain and by the use of violence and intimidation, in the present
case, against the person of the Moro who, is the agent of its owner, had possession of the drug.
          The seizure of the opium and the arrest of its bearer by the agents of the authorities is
indeed permissible and perfectly lawful; but that such agents, with the intent and purpose of
appropriating to themselves the opium seized and of deriving benefit from its use or sale,
should, with impunity and entire security, possess themselves of the opium, cannot be tolerated.
Until the agents of the authorities have taken charge of it in the manner prescribed by the
administrative law, it is the property of the owner. The Moro Jamilassan having been deprived of
the 101 tins of opium, which, by order of the owner of the drug, he was carrying to sell, and this
taking having been effected with violence and intimidation on the part of the agents of the
authorities, who acted in apparent compliance with the law, but really with intent to obtain
unlawful gain, it is unquestionable that the crime of robbery, provided for and punished by
articles 502 and 503, paragraph 5, of the Penal Code, was committed. The legality and
correctness of this classification of the crime are in no wise affected by the circumstance that the
persons who committed it were agents of the authorities, assisted by some private parties, since
the public character with which these agents were invested does not justify the criminal intent
that prompted the execution of the punishable act, nor can it change the nature of the crime they
committed, inasmuch as, on the occasion of its perpetration, they acted, not as agents of the
authorities in the fulfillment of the duties imposed upon them by the law, but as mere private
parties, accompanied by some Chinamen, all of whom conspired together and concerted, under
the direction of the treasurer Ricablanca, for the purpose of seizing a considerable quantity of
valuable opium which was not their property, but belonged to the Moro Tahil, and which is an
article that, upon seizure and confiscation within the territory of this Archipelago, becomes the
property of the Government. In this connection it is to be noted that the treasurer Ricablanca,
before proceeding to seize the opium, gave no notice either to the municipal president or to the
local chief of the Constabulary, nor did he request the latter's assistance; all of which shows that
he did not act in good faith and according to the law.
          Without discussing the guilt of the defendant Ricablanca and the Chinaman King Kong
Kiang, neither of whom has appealed, we shall confine ourselves in this decision to inquiring into
that of the appellant Chinamen Sionga Yap, San Lim, and Dina Lim. Their participation in the
robbery under prosecution was very different from that of the first two, inasmuch as Sionga Yap
was present with the policemen during the perpetration of the robbery, he took a direct part
therein and cooperated in its commission by the performance of acts without which, perhaps, his
co-participants would not have succeeded in seizing the opium. It was he who pretended to
purchase the drug by placing himself in direct communication with the Moro who carried it, and
arranged the place and time when the latter should appear on the beach at Simala with the
opium for sale; it was this same Chinaman who, in accordance with the agreement he had made
with his codefendants, went to the shore ahead of the latter there to await the Moro Jamilassan
who was expected with the opium; he, too, it was, who signaled the arrival of the Moro on the
shore, by lighting two matches, at which signal the policemen and their companions came up
and the former rushed upon the Moro, held him fast, and by force possessed themselves of the
opium, the securing of which was the purpose of the common action of the plotters. It cannot be
denied, therefore, that Sionga participated as a co-principal in the perpetration of the robbery in
question.
          We are of the opinion that the other appellants, Sana Lim and Dina Lim, acted as
accomplices in the commission of the crime. They cooperated by acts prior and simultaneous
with its perpetration, but the record does not show that they performed acts that were necessary
and indispensable for its realization. With knowledge of the commission of the robbery and with
the intent to obtain unlawful gain, they accompanied the principals in the crime up to a certain
distance from, though not near, the place where it was perpetrated, but did not approach that
place until after the robbery took place and when then for the sole purpose of sharing in the
booty or the division of the opium stolen. Hence, as these two defendants do not fall within any
of the three classes specified in article 13 of the Penal Code, which treats of principals, the said
Sana Lim and Dina Lim are to be considered as mere accomplices of the principals in the
robbery.
          Counsel for the defendants, arguing against the classification of the crime, alleges that at
most it should be defined as estafa, and in support of his contention cites several decisions of
this court and of the supreme court of Spain, where the principle is laid down that such acts
should be qualified as estafa and not robbery, for the reason that the agents of the authorities
were authorized to seize the opium and the persons having it in their possession or who were its
owners, and because the officers of the law could not, in the act of the seizure of a prohibited
article, have exercised violence and intimation upon the person of a transgressor; that it after the
seizure of the opium, they conceived the purpose of gain and it was then that they appropriated
to themselves the opium seized, they would in such a case have committed the crime of estafa,
but not that of robbery.
          In answer to these allegations we must state that the robbery was engendered from the
very moment when the principals resolved to possess themselves of the opium carried by the
Moro Jamilassan, with the fixed and malicious intent to obtain unlawful gain from the said drug
which, as was well and publicly known, obtained a high price, among the Chinese, its chief
consumers. With that end in view, they came to an agreement, formed a conspiracy among
themselves and, under the direction of the treasurer Ricablanca, decided upon the method by
which they should possess themselves of the opium so that they might derive profit from its sale.
They later took the opium the possession of its bearer by means of violence and intimidation,
since four shots were fired by one of the policemen and another by the treasurer Ricablanca,
who was present at the commission of the robbery. There is, therefore, no question that the
persons who, with malicious intent to obtain unlawful gain and by the use of violence and
intimidation, forcibly possessed themselves of the opium carried by the Moro Jamilassan,
proceeded and acted in the same manner as robbers usually do who, with intent to gain, take
possession of another's property against the will of its owner.
          In the cases cited by the defense to show that the crime under prosecution should be
classified as estafa and not as robbery, the guilty persons first acted in good faith in the
discharge of their duties and without any unlawful intention, and the intent to derive illicit gain
was formed only after they had legally seized the property. For this reason those acts cannot be
classified as robbery, only as estafa, because prior to and at the time of their performance, they
acted as agents of the authorities and in accordance with law, and only after they were in
possession of the property, did they conceive the idea of deriving profit therefrom by
appropriating it to themselves for personal gain.
          In the case at bar, both the treasurer Ricablanca and the Chinese appellants, from the
moment they proposed to seize the opium which the Moro Jamilassan carried for sale, had the
intention to appropriate to themselves the greater part of the drug. They even planned to
deceive the authorities by substituting molasses for the contents of 11 of the 23 tins of opium
which they presented to the said authorities as legally seized from Jamilassan. They kept 77 of
the tins so seized and made no report of them to their superior, nor does the record show that
these tins were afterwards recovered from the possession of the defendants. Therefore it is just
and proper that the crime in question should be classified as robbery, and not as estafa.
          In the commission of the crime account must be taken of the attendance of the
aggravating circumstance No. 15, to wit, that the crime was committed in the nighttime and in an
uninhabited place, without any extenuating circumstance to offset its effects. No weight can be
given to abuse of superior strength, that circumstance being inherent in the crime of robbery,
even though it were not committed by a band of armed men.
          For the foregoing reasons, whereby the errors assigned to the judgment appealed from
are deemed to have been refuted, the said judgment is affirmed in so far as it degrees with this
decision and reversed in so far as it does not, and we hereby sentence the Chinaman Sionga
Yap, as a principal, to the penalty of six years ten months and one day of presidio mayor and to
the accessory penalties of article 57, and each of the other Chinamen, Sana Lim and Dina Lim,
as accomplices, to six months of arresto mayor and the accessory penalties of article 61.
Furthermore, Sionga is sentenced to restore, jointly and severally with his co-principals, the
opium stolen or to pay the value thereof to the Government of the Philippine Islands, ad the
accomplices, Sana Lim and Dina Lim, are held to be bound, also jointly and severally between
themselves and subsidiary in default of fulfillment, for the civil liabilities incurred by the
principals, and each of the three appellants shall pay one-third of the costs of this instance. The
opium seized and all quantities thereof that may be recovered shall be confiscated.
PEDROSO
The case for the prosecution may be synthesized as follows: chanrobles
virtual law library
In the evening of June 2, 1994, Elsa Dioso and Josephine de Leon were
going home to Sta. Mesa from Divisoria, where they had just visited a
friend. They boarded a passenger jeepney plying the Divisoria-Cubao route,
sitting beside each other on the right side of the jeepney. As the jeepney
passed Isetann Department Store along Recto Avenue, three men got on
board. One sat on the left side of the jeepney, immediately behind the
driver, while the other two sat on the right side of the jeepney, one at
Josephine de Leon's right, the other at Elsa Dioso's left. chanrobles virtual
law library
As the jeepney was approaching the Nagtahan fly-over at around 9 o'clock,
the person immediately behind the driver, later identified as accused-
appellant Ariel Pedroso, whipped out a gun and announced, "Huwag
kayong kikilos ng rnasama. Holdap ito! " Simultaneously, the man at
Josephine de Leon's right pulled out a balisong  while the man at Elsa
Dioso's left brandished a gun. Pedroso took from the passenger seated
beside him, later identified as Constantino Lucero, the latter's necklace and
wristwatch. Encountering resistance while removing Constantino's other
jewelry, Pedroso shot the former. Constantino was not hit, however, as he
was able to push Pedroso's shooting arm, spoiling the latter's aim.
Deflected, the bullet grazed Dioso's neck and hit one of Pedroso's
companions instead, who exclaimed, "Pare, tinamaan mo ako. " Further
efforts to remove Constantino's remaining jewelry met with difficulty,
prompting one of the hold-uppers to shout`Putang ina, pare, patayin mo
na 'yan. " A  gunshot rang out and Constantino fell to the floor of the
jeepney. In this position, he was stabbed several times by the knife-
wielding cohort of Pedroso. As the attack took place, the other passengers,
Elma Dioso included, jumped off the moving jeepney. However, upon
noticing that Josephine de Leon had been left behind inside the jeepney,
Elsa DIOSO returned and sat at the front passenger seat of the jeepney.
From that vantage point, she saw the victim being stabbed. The three hold-
up men then alighted, hailed a passing jeepney, and fled. chanrobles virtual
law library
Ramon Aduviso, the driver of the jeepney, sped to Station 8 of the Western
Police District to get help. Escorted by police, Aduviso then rushed
Constantino to the University of the East Ramon Magsaysay (UERM)
Hospital for treatment. Constantino was, however, pronounced dead on
arrival. chanrobles virtual law library
Informed of the incident, PO3 Edgardo Ko went to the UERM Hospital to
investigate the incident. Finding Constantino dead, Ko proceeded to the
scene of the crime. An examination of' the jeepney revealed splotches of
blood on its flooring. A deformed slug was likewise found under the
passenger seat of the jeepney. Passengers Elsa Dioso and Josephine de
Leon also appeared before the police and gave their account of the
incident. chanrobles virtual law library
In the afternoon of June 13, 1994, a police informant called up the WPD
and informed the officer on duty that the persons involved in the robbery-
holdup could be found inside a vacant lot along Leon Guinto Street, Malate,
Manila. Acting on the tip, the police rushed to the area and found two
persons there, one of whom is accused-appellant Pedroso. The two were
brought to the police station for investigation, and the witnesses to the
holdup were called to confront the suspects. chanrobles virtual law library
Although placed in a police line-up of seven persons, accused-appellant
Pedroso was, without hesitation, positively identified by witnesses Elsa
Dioso and Josephine de Leon as one of those involved in the robbery-
holdup. He was consequently arrested and a case of robbery with homicide
filed against him. chanrobles virtual law library
PEDROSO
As has been observed by the Court, the most natural reaction of victims of violence
is to strive to look at the appearance of the perpetrators of the crime and observe
the manner in which the crime is being committed (People v. Pulusan,
supra.).chanrobles virtual law library
Neither is there any merit in accused-appellant's contention that it was highly
inconceivable for Elsa Dioso, after alighting from the back of the jeepney, to
transfer to the front passenger seat and observe the holdup going on. As explained
by Dioso, she reboarded the vehicle and sat at the front seat thereof because her
friend, Josephine de Leon, was still inside the jeepney at that time. Moreover, the
workings of the human mind under emotional stress are unpredictable, such that
people react differently to startling situations: some may shout, some may faint,
some may be shocked into insensibility, some may openly welcome their
intrusion (People v. Bersabe, 289 SCRA 695 [1998]). In this case, Elsa Dioso
disregarded her own safety for the sake of a friend who was left behind in the
jeepney. In all probability the action of Elsa was spontaneous, without conscious
thought of the consequences of her going back to the jeepney just to be with her
friend. chanrobles virtual law library
Given the positive identification of accused-appellant by the prosecution witnesses
as one of the holduppers, his defense of alibi must necessarily fail. The defense of
alibi is inherently weak and cannot prevail over the positive identification of the
accused-appellant as the offender (People v. Maguad, 287 SCRA 535
[1998]). Moreover, for the defense of alibi to prosper, it is not sufficient that
accused-appellant prove that he was somewhere else when the crime was
committed; he must also show that it was physically impossible for him to be at
the locus criminis or its immediate vicinity when the crime was perpetrated (People
v. Cabebe, 290 SCRA 543 [1998]). In the case at bar, aside from his bare assertion
that he was in Malate at the time of the incident, accused-appellant failed to adduce
any evidence that it was physically impossible for him to be present at the place
where the crime was committed at the time it happened. Leon Guinto Street in
Malate is not very far from Legarda. It would not have taken a long time for
accused-appellant to traverse that distance, especially so, it was getting late in the
evening (9 P.M.) with the traffic already light and thinning out. Furthermore,
accused-appellant did not present any other witness to corroborate his defense of
alibi. Already a weak defense, alibi becomes even weaker by reason of the failure of
the defense to present any corroboration (People v. Fuertes, 296 SCRA 602
[1998]). chanrobles virtual law library
Article 294(1) of the Revised Penal Code reads: chanrobles virtual law library
Art. 294. Robbery with violence against or intimidation of persons-Penalties.-Any
person guilty of robbery with the use of violence against or intimidation of any
person shall suffer: chanrobles virtual law library
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed... chanrobles virtual law
library
The elements of robbery with homicide are (1) the taking of personal property is
committed with violence or intimidation against persons; (2) the property taken
belongs to another; (3) the taking is with animo lucrandi; and (4) by reason of the
robbery or on the occasion thereof, homicide is committed (People v. Tidula, 292
SCRA 596[1998]). chanrobles virtual law library
It is beyond dispute that accused-appellant and his cohorts employed violence and
intimidation against persons to consummate their criminal intent to take away, for
personal gain, the personal property of Constantino Lucero. They brandished guns
and a knife while divesting the latter of his necklace, bracelet, wristwatch, and
rings. chanrobles virtual law library
That a homicide was committed on the occasion of the robbery is equally beyond
dispute. Constantino Lucero was shot twice and stabbed five times as he was
divested of his jewelry. He was pronounced dead on arrival at the UERM
hospital. chanrobles virtual law library
We, therefore, agree with the trial court that the crime committed by accused-
appellant is robbery with homicide, as defined and penalized under Article 294(1) of
the Revised Penal Code. chanrobles virtual law library
Likewise, conspiracy has been amply and sufficiently proven in this case. Pretending
to be passsengers, accused-appellant and his cohorts boarded Aduvisos jeepney as
it passed Isetann along Recto. When the hold-up was announced, they all pulled out
and pointed weapons at the passengers. They all assaulted Constantino Lucero
when the latter resisted. They alighted and fled from the jeepney
together. chanrobles virtual law library
These acts, taken together, show that there was, among accused-appellant and his
cohorts, unity of purpose and design in the execution of the unlawful act,
establishing beyond reasonable doubt the existence of conspiracy (People v.
Verzosa, 294 SCRA 466 [1998]). chanrobles virtual law library
It is settled that whenever homicide has been committed as a consequence of or on
the occasion of the robbery, all those who took part as principals in the robbery will
also be held guilty as principals of the special complex crime of robbery with
homicide although they did not actually take part in the homicide, unless it appears
that they endeavored to prevent the homicide (People v. Nang, 289 SCRA 16
[1998]). Not only is there no proof that accused-appellant tried to prevent the
death of Constantino Lucero, the evidence even positively shows that he fired at
least one shot at the victim. chanrobles virtual law library
Accused-appellant is, therefore, liable for robbery with homicide. Under
Article 294(1) of the Revised Penal Code, the penalty for robbery with homicide is
composed of two indivisible penalties, namely, reclusion perpetua to death. As
mentioned earlier, the trial court erred when it sentenced accused-appellant to
suffer the penalty of reclusion perpetua to death. chanrobles virtual law library
Article 63 of the Revised Penal Code provides: chanrobles virtual law library
Art. 63. Rules for the application of indivisible penalties.-
xxx xxx xxx chanrobles virtual law library
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application
thereof: chanrobles virtual law library
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.chanrobles virtual law library
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied. chanrobles virtual law
library
3. When the commission of the act is attended by some mitigating circumstance
and there is no aggravating circumstance, the lesser penalty shall be
applied. chanrobles virtual law library
4. When both mitigating and aggravating circumstances attended the commission of
the act, the courts shall reasonably allow them to offset one another in
consideration of their number and importance, for the purpose of applying the
penalty in accordance with the preceding rules, according to the result of such
compensation. chanrobles virtual law library
Withal, in all cases in which the law prescribes a penalty composed of two indivisible
penalties, the court is mandated to impose one or the other, depending on the
presence or absence of mitigating and aggravating circumstances. Since no
aggravating circumstance was alleged in the information - and to be sure if one
were later proved during the trial, it could not be appreciated so as to increase the
penalty to death, and since neither was any mitigating circumstance established by
the defense, the lesser penalty, or reclusion perpetua, should be imposed upon
accused-appellant. chanrobles virtual law library
As to accused-appellant's civil liability, aside from the award of P80,000.00 as actual
damages, civil indemnity in the amount of P50,000.00 should be awarded to the
heirs of Constantino Lucero, the same being automatically granted to the offended
party or his heirs in the case of death, without need of further evidence other than
the fact of the commission of the crime and the accused-appellants culpability
therefor (People v. Sumalpong, 284 SCRA 464 [1998]). As to the award of moral
damages, the Court finds the amount of P300,000.00 to be excessive under the
circumstances, and reduces the same to P50,000.00 chanrobles virtual law library
WHEREFORE , the decision appealed from and under review finding accused-
appellant GUILTY of ROBBERY WITH HOMICIDE is hereby AFFIRMED with the
modification that accused-appellant is sentenced to suffer the reduced penalty
of RECLUSION PERPETUA. He is likewise ordered to indemnify the heirs of the
victim the sum of Fifty Thousand (P50,000.00) Pesos as civil indemnity, Eighty
Thousand (P80,000.00) Pesos as actual damages. The award of moral damages is
reduced from P300,000.00 to Fifty Thousand (P50,000.00) Pesos. chanrobles virtual
law library
SO ORDERED. chanrobles virtual law library
DOBLE
PEOPLE VS. DOBLE
Rizal. 1982
FACTS:  Late in the night of June 13, 1966, 10 men, almost all heavily armed w/ pistols,
carbines and thompsons, left the shores of Manila in a motor banca & proceeded to
Navotas,Rizal to rob the beach-bank Prudential Bank & Trust Co.  Said bank wad an unusual
banking hours, open from midnight till 8AM.  Once docked in Navotas and taking advantage of
the darkness of the night, 8 men disembarked from the banca and proceeded to their mission. 
Once inside, they started firing at the bank’s ceiling, walls & door of the vault.  The 8 men then
returned to the waiting motor banca w/ about P10.5K & sped away.  As a result of the shooting,
many people got killed & injured.  Among those who got killed were agents of the law.
Only 5 of the 10 men were brought to trial, the rest still remain at large.  2 of the 5 accused were
acquitted.  It is only Cresencio Doble, Simeon Doble and Antonio Romaquin appealing in the
charge of bank robbery committed in band, w/ multiple homicide, multiple frustrated homicide
and assault upon agents of persons in authority.
HELD: First, as to appellant Simeon, evidence shows that the malefactors met in his house to
discuss the plan to rob the bank.  This circumstance alone doesn’t conclude his guilt beyond
reasonable doubt.  The facts do not show that he performed any act tending to the perpetration
of the robbery, nor that he took a direct part therein or induced other persons to commit, or that
he cooperated in its consummation by some act w/o w/c it would not have been committed.   At
most, his act amounted to joining in a conspiracy w/c is not punishable.  Simeon then was not a
principal both by agreement and encouragement for his non-participation in the commission of
the crime.  Nor was it clearly proven that he had received any part/fruits of the looted money as
to make him an accessory. As recommended by SolGen, Simeon Doble is entitled to acquittal w/
no sufficient evidence to establish his guilt beyond reasonable doubt.
Next, as regards Romaquin & Doble, the malefactors who waited in the banca, both contend that
their extra-judicial statements upon w/c their conviction was principally made to rest, are
inadmissible for having been allegedly obtained by force and intimidation, torture and
maltreatment, and in violation of basic consti’l rts to counsel and against self-incrimination.  
However, it must be noted that they didn’t present any medical cert to attest to the injuries
allegedly inflicted.  More so that their testimonies match each other’s.  And it should also be

noted that Celso Aquino’s testimony, as one of the accused, admitted that no violence was
inflicted on him to procure his statement.  This is evidence enough that the appellants could not
have been dealt w/ differently as their co-accused Aquino who was allowed to give his statement
freely.
The extra-judicial statements of the appellants are convincing to show that their liability is less
than that of a co-principal by conspiracy or by actual participation.  Cresencio was merely in-
charge of the banca and had no knowledge of the concrete plan and execution of the crime.  at Laureto, as if to give him a signal. Whereupon, Laureto drew a knife and
The mastermind obviously did not extend confidence in him as he was only asked to provide a
banca just a few hours before the commission of the crime.  Nor was Romaquin considered a
principle malefactor as there was a gun pointed at him by Cresencio to prevent him from fleeing
away from the scene, evident to show that he never joined in the criminal purpose and that his
acts were not voluntary.
An accomplice is one who, not being principal as defined in Art 17 RPC, cooperates in the
execution of the offense by previous or simultaneous acts.  There must be a community of
unlawful purpose between the principal and accomplice and assistance knowingly and
intentionally given to supply material and moral aid in the consummation of the offense.  In this
case, the appellants’ cooperation is like that of a driver of a car used for abduction w/c makes
the driver a mere accomplice.
But it isn’t established by evidence that in the mtg held in the house of Simeon that they all
agreed to kill and not just rob.  The finding that appellants are liable as mere accomplices may
appear too lenient but evidence fails to establish their conspiracy w/ the real malefactors who
actually robbed the bank and killed several people.
Wherefore, Doble & Romaquin are guilty beyond reasonable doubt as accomplices for the crime
of robbery in band.  The penalty imposable upon appellants is prision mayor min.  The
commission of the crime was aggr by nighttime & the use of a motorized banca.  There being no
MC, both appellants should be sentenced to an indeterminate penalty of prision correccional
from 5 yrs, 4 mos, 21 days to 8 yrs of prision mayor as maximum.
BACCAY
Domingo Baccay and Laureto Baccay were charged with the special
complex crime of Robbery with Homicide for having robbed Isabelo
Jimenez of P2,000.00 and on the occasion thereof stabbed him to death
and inflicted multiple stab wounds on his son Heherson Jimenez. 1
On 26 June 1992 accused Domingo Baccay when arraigned pleaded not
guilty, while his co-accused Laureto Baccay was found unfit to stand trial
due to mental illness and was committed to the Regional Mental Hospital in
Tuguegarao, Cagayan.
From the account of prosecution witnesses Gilbert Turaray, Heherson
Jimenez and Melchora Jimenez these facts were established: On 14 January
1992, at about 8:00 o'clock in the morning, Domingo Baccay and Laureto
Baccay went to the house of Isabelo Jimenez at Zone 2, San Mariano,
Isabela, to collect Isabelo's bets for a jueteng game drawn daily in the
locality. Isabelo at that time was in the room of his crippled son Heherson
talking to him. Isabelo's grandson Gilbert Turaray, then on vacation for the
Christmas season, was massaging the feet of his uncle Heherson. Domingo
Baccay entered the room first, followed by Laureto. Then Domingo winked
started stabbing Isabelo. Heherson shouted for help, but to no avail.
Isabelo ran to the window to shout for help but Domingo held him back by
the hair, while Laureto continued stabbing him. Heherson, despite being
crippled, managed to box Laureto, disarmed him momentarily, but Domingo
picked up the knife and stabbed Heherson several times. After divesting
Isabelo of his money from his shirt pocket, Laureto and Domingo hurriedly
left.
Gilbert Turaray, who managed to position himself behind a rocking chair,
witnessed the startling occurrence.
Melchora Jimenez, Isabelo's wife, testified that Laureto arrived in their
house first; she even served him coffee. Soon Domingo also arrived. He
patted Laureto on the shoulder and upon Isabelo's bidding went into her
son's room. Laureto immediately followed. Not long after, she heard her
son cry for help. She ran to the room only to find it locked. However,
through a hole in the wall she saw her husband Isabelo and her son
Heherson being stabbed by Domingo and Laureto.
Domingo Baccay admitted having been at the Jimenez residence in the
morning of 14 January 1992 but claimed he was there only for
the jueteng bets of Isabelo. Domingo denied however that he ever stabbed
Isabelo although he admitted noticing the knife in Loreto's possession. In
fact, it was for this reason, according to him, that he immediately ran out
to ask for help. Although he asserted that he was shaken by the incident,
he nevertheless overcame his fear after a few minutes and continued
collecting bets for the jueteng game.
This version as narrated by Domingo Baccay was corroborated by Wilfredo
Aggabao and Manuel Gabriel, to whom accused Domingo ran for help, and
that the latter even reported to them that Laureto stabbed Isabelo
Jimenez.
On 7 November 1994 the trial court found the accused Domingo
Baccayguilty as charged2and sentenced him to reclusion perpetua with the
accessory penalties provided by law, ordered him to indemnify the heirs of
Isabelo Jimenez P50,000.00,P200,000.00 for moral and exemplary
damages and P2,000.00 taken by him and his co-accused Laureto Baccay
from Isabelo Jimenez. Accused Domingo Baccay was also ordered to
indemnify Heherson Jimenez P150,000.00 as reasonable medical expenses
incurred by him during his treatment plus P50,000.00 as moral and
exemplary damages, and to pay the costs. 3
Accused-appellant imputes the following errors to the court a quo: (1) in
holding that the sworn statement of Heherson Jimenez taken by Pat.
Alfonso Deraco was an antemortem statement or part of the res
gestae;  (2) in giving undue credence to the testimony of prosecution
witness Gilbert Turaray; (3) when it ruled that the deceased Isabelo
Jimenez was divested or robbed of his money; (4) when it ruled that the
crime charged was committed by accused-appellant Domingo Baccay in
conspiracy with his co-accused; and, (5) in finding the accused guilty of
robbery with homicide.4
The appeal is without merit.
Firstly, appellant questions the trial court's appreciation of the sworn
statement of Heherson Jimenez taken by Pat. Alfonso Deraco as an
antemortem statement or as part of the res gestae.
Even without the statement of Heherson, the testimonies of the
prosecution witnesses will suffice to convict accused-appellant of the crime
charged. Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime. His reliance on People v.
Dunig and People v. Elizaga is totally misplaced. In both cases the trial
courts' convictions were based solely on dying declarations. There were no
other witnesses. On appeal the Court found that under the circumstances
of the two (2) cases, it was impossible for the victims to have accurately
identified the malefactors. Thus the dying declarations were inaccurate
hence unreliable and the convictions were reversed. The instant case is not
analogous to the two (2) cases. The conviction of appellant Domingo
Baccay did not rely solely on a dying declaration. Prosecution witnesses
Melchora Jimenez, Heherson Jimenez and Gilbert Turaray positively
identified Domingo as one of the malefactors. Consequently, disregarding
the dying declarations as such would not in any way affect the soundness
of the decision.
Appellant also alleges that the testimony of Heherson Jimenez is not
worthy of credence because it suffers from the following inconsistencies:
(a) Heherson Jimenez testified that he was stabbed many times by the two
accused, but on cross-examination he contradicted himself by stating that
only the appellant stabbed him. On the other hand, Turaray who witnessed
the whole event from behind a chair testified unflinchingly that after
Laureto finished stabbing Isabelo, Laureto turned to stab Heherson who
was able to box Laureto thereby making the latter drop the knife. Domingo
then picked up the knife and started stabbing Heherson. 5 (b) Appellant
brands as highly improbable Heherson's testimony that the stabbing was
done simultaneously in the light of the prosecution evidence that only one
knife was used in the incident. But the stabbing, as pointed out in the
preceding discussion, was done successively. (c) According to Heherson,
Domingo knifed him last. Appellant contends that if this be the case, then
the knife should have been in Domingo's possession, not in Laureto's hand
as shown in the records. But there is no inconsistency here. The records
show that before fleeing, Domingo went through the pocket of
Isabelo.6 Thereby, it can only be logically surmised that he momentarily let
go of the knife in order to get the money from Isabelo's pocket. But
Laureto, knowing the knife to be his, picked it up after Domingo left.
The Court does not expect that a witness' testimony be perfectly congruent
so long as the narration concurs on material points. Minor lapses do not
detract from the overwhelming testimonies of prosecution witnesses'
positively identifying the malefactors. Furthermore, a witness who has
undergone a harrowing experience cannot be expected to be entirely
consistent.
Secondly, appellant questions the trial court's giving undue credence to the
testimony of prosecution witness Gilbert Turaray, contending that he was
coached and his testimony highly flawed. For one, appellant assails Gilbert
Turaray's testimony that Heherson Jimenez, a cripple lying in bed, could
manage to get up and punch his father's assailant although Heherson was
supposedly positioned away from them.
These allegations are factually baseless. The locus criminis is a very small
room approximately measuring only three by four meters. 7 Moreover,
Heherson Jimenez said that after the assailants left he was able to crawl to
the door bleeding and half conscious. 8 In this regard, it may be said that
people have been known to accomplish incredible feats in times of utmost
danger.
The allegation that Gilbert Turaray was tutored in relation to the number of
wounds sustained by both his grandfather and uncle is a trivial matter that
does not affect the positive identification of the accused. At any rate the
witness admitted that he had heard of the number of wounds from other
people.9
Appellant also insists that since Gilbert was positioned behind the rocking
chair he could not have seen the incident. We disagree. Gibert on cross-
examination thus explained:
Q: And you declared a while ago that you were hiding behind the rocking
chair where Domingo Baccay was seated. So that your view was
obstructed, is (sic) it not?
A: I can see them, sir (underscoring supplied).10
It is doctrinally entrenched that the evaluation of the testimonies of
witnesses by the trial court is received on appeal with the highest respect
because such court has the direct oppurtunity to observe the witness on
the stand and determine if they are telling the truth or not. Thus -
The court also finds the testimony of Gilbert Turaray to be trustworthy. In
his straightforward narration, he vividly recalled how his grandfather and
his uncle were assaulted by both accused, Laureto stabbing the old man
and Domingo stabbing his uncle, Heherson. The was no reason or any
known motive for him to perjure his testimony and point to accused
Domingo Baccay who joined his co-accused Laureto Baccay in the stabbing
affray.11
For appellant to impute revenge on the witnesses as the motivation for
pinpointing him is groundless. Revenge is a normal reaction of one
betrayed, harmed or otherwise of one who has lost a loved one, but it does
not follow that the desire to avenge such betrayal, harm or loss would
include implicating even innocent persons.
Thirdly, appellant contends that the trial court erred in concluding that the
deceased Isabelo Jimenez was divested or robbed of his money. In robbery
with homicide, the prosecution need only prove these elements: (a) the
taking of personal property with violence or intimidation against persons;
(b) that the property taken belongs to another; (c) the taking was done
with animo lucrandi; and, (d) on the occasion of the robbery or by reason
thereof homicide was committed.12 All these elements were established by
the prosecution. Gilbert Turaray clearly and credibly testified on cross-
examination thus -
Q: They did not take anything?
A: They got something, sir.
Q: What something are you referring to?
A: Money, sir.
Q: Where was that money kept?
A: At the pocket of my Lolo, sir.
Q: Why, did you see that what they took was money?
A: I saw the money at the pocket of my Lolo, sir.
xxxx
Q: Do you know if your Lolo was wearing a wallet?
A: My Lolo had a wallet but he placed the money in his pocket,
sir.13 (underscoring supplied).
Although there may be inconsistencies in the testimony of prosecution
witness Melchora Jimenez as to the amount of cash taken from the victim,
there is no disputing the fact that cash was indeed taken. That the
testimonies of witnesses for the prosecution were not totally consistent do
not necessarily impair their evidentiary value, especially when there is no
doubt that indeed robbery took place, and such was the purpose of the
homicide.
Fourthly, appellant disputes his conviction on conspiracy. But conspiracy
exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 14 Conspiracy need not be
proved by direct evidence but may be inferred from the acts of the accused,
e.g., (a) Before going into Heherson's room, Domingo tapped Laureto's
shoulder;15 (b) Domingo locked the door after Laureto entered the
room;16 (c) Immediately after locking the door, Domingo made a signal to
Laureto by winking his eye; 17 (d) When Isabelo ran to the window to shout
for help, Domingo pulled him back by his hair and held his hands while
Laureto continued stabbing him;18 (e) When Heherson intervened and
punched Laureto, Domingo stabbed Heherson several times; 19 and, (f)
Before the two (2) accused left the room, Domingo took money from
Isabelo's pocket.20 With the foregoing circumstances, there can be no other
conclusion than that the successful perpetration of the crime was done
through the concerted efforts of both accused Domingo Baccay and Laureto
Baccay. This automatically adversely resolves appellant's final contention
that his guilt was not proved beyond reasonable doubt.
For appellant to insist that his version is more credible than that of the
prosecution is futile. In fact, the testimonies of defense witnesses Manuel
Gabriel and Wilfredo Aggabao disprove accused-appellant's claim that he
was not present during the stabbing. Specifically, Manuel testified that
Domingo had reported to them that Laureto Baccay was stabbing Isabelo
Jimenez.21 Wilfredo Aggabao, on his part, quoted Domingo as saying to
them, "Please report to the police because they (sic) were stabbing Isabelo
Jimenez."22
Accused-appellant testified that he left the room of Heherson the moment
Laureto Baccay went in. This is highly incredible, for why then was he so
positive about the stabbing of Isabelo and Heherson? And why did he not
himself report the incident to the police?
Appellant finally contends that his non-flight from the scene of the crime is
indicative of his innocence. Or, could it not also be, of his callousness? For,
to what else could we attribute his nonchalance in going about his routine
of collecting juetengbets a few minutes after the occurrence of a gruesome
crime? Could he not have the human curiosity to find out what happened to
Isabelo? At the very least, could he not have lent him aid to save his life?
Indeed, there are no pat explanations for the workings of an evil mind!
Lastly, the award for moral and exemplary damages should be deleted in
the absence of sufficient proof for its justification. With respect to the
deceased Isabelo Jimenez, actual damages totalling P66,470.00 should be
given as evidenced by the records.
WHEREFORE, the judgment of the court a quo: (a) finding accused-
appellant Domingo Baccay guilty of Robbery with Homicide as charged, (b)
sentencing him to reclusion perpetua with all the accessory penalties
provided by law, (c) ordering him to restitute the amount of P2,000.00
taken from Isabelo Jimenez and to pay Heherson Jimenez the amount
ofP150,000.00 for medical expenses, is AFFIRMED; with the modification
that only the amounts of P50,000.00 as indemnification for Isabelo's death
and P66,470.00 for actual damages be paid the heirs of Isabelo Jimenez.
Moral and exemplary damages are deleted.
MENDOZA
Danilo Manalus, a taxi driver, was stabbed to death near the Pangilinan
Compound along Congressional Avenue, Barangay Bahay Toro, Quezon City
at about 10:30 p.m. on February 15, 1992. The alleged assailant, now
accused-appellant, was apprehended at the scene of the crime by a tricycle
driver, Bonifacio Wycoco, subsequently turned over to the police and
charged, together with a certain John Doe, with robbery with homicide as
penalized by Art. 294(1) of the Revised Penal Code.
Upon being arraigned, accused-appellant pleaded not guilty. The other
accused was at large and so trial proceeded against the accused-appellant
alone.
The prosecution presented seven witnesses, among whom were Wycoco,
the tricycle driver, and Louie Jose, another tricycle driver.
Wycoco testified that, on the date and time in question, while driving his
tricycle along Congressional Avenue in Quezon City, he came upon three
men who were shouting hold-up. He saw accused-appellant (whom he
subsequently identified in court) on top of the victim holding a sharp knife
thrust into the taxi drivers body (nakasaksak sa katawan ng taxi driver). 1
From where he was, he saw through the open right front door on the
passengers side of the taxi the driver fending off the attacks of accused-
appellant who was using a fan knife or balisong. 2 He saw that they were at
each other on the drivers seat (Magkapatong sila sa isang upuan sa tabi ng
driver).3
Wycoco grabbed accused-appellant by the collar and tried to pull him away.
As accused-appellant resisted, Wycoco hit him on the left leg with a lead
pipe, causing him to fall on his knees and preventing him from fleeing from
the scene.4
Witness Louie Jose came upon the two. He testified that he tied both hands
of the accused-appellant. Jose asked accused-appellant, Why did you say it
is a hold-up (sic), to which the latter responded I am getting despondent
because I do not have money to buy milk for my child (Naaaburido ako
dahil sa wala akong pambili ng gatas para sa anak ko). 5 According to him, a
policeman, Danilo Ramos, then arrived and Wycoco turned accused-
appellant over to him.6
According to Wycoco, Ramos searched the accused-appellant and found
money stained with blood7 and a fan knife. 8Another knife, a large one
normally for kitchen use, was found on the floor of the taxi. 9 The victim was
taken to the Quezon City General Hospital but he was dead on arrival. 10
NBI Medico-Legal Officer Dr. Floresto Arisala testified on the results of his
post-mortem examination of the victims cadaver. His autopsy showed that
the victim sustained three stab wounds, with the one located at the left
mid-chest being fatal. The fatal wound was caused by a sharp, single-
bladed instrument, 2.0 cm. wide and approximately 11.0 cm long. 11
SPO1 Abraham Mendoza was sent to the Quezon City General Hospital after
the police had been informed of the stabbing incident. The security officer
of the Hospital, Mario Bermudez, turned over to SPO1 Mendoza P910.00 in
cash in various denominations. 12 Mendoza found that some bills 13 were
bloodstained. He conducted an ocular inspection of the crime scene and
found blood on the street. He also investigated accused-appellant and the
two witnesses. Wycoco and Jose gave written statements, but accused-
appellant refused to give one. 14
Witness Mario Bermudez, security officer of the Quezon City General
Hospital, testified that the money he turned over to SPO1 Mendoza came
from Wycoco and Jose.15
NBI Forensic Chemist Mary Ann T. Araas examined the blood found on the
fan knife, kitchen knife, paper and maongpants16 taken from the taxi of the
victim. She found that they all tested positive for human blood, type
B.17 Finally, Tranquilino Manalus, the father of the victim, testified and
provided documentary evidence18 showing that the net expenses for the
victims wake and funeral amounted to P61,000.00.19
Accused-appellant testified in his behalf. He claimed that on February,
1992 he worked as a mason at a construction project in the Tandang Sora
Public Market, receiving a daily wage of P150.00. After getting his pay in
the amount ofP900.00 on February 15, 1992, he cleaned up and went to SM
City to buy shoes. At 10 p.m., not being able to find a cheap pair, he
decided to go home to Tandang Sora. He hailed a taxi driven by Danilo
Manalus. The taxi proceeded to Quezon City Circle, turned on Visayas
Avenue and then on Congressional Avenue. Along the way, accused-
appellant claimed he noticed the taxis meter to be fast and he complained
to the driver. He said that as a result he and the driver had a heated
exchange. The taxi stopped about three meters from the Pangilinan
Compound and the driver told the accused-appellant to alight. Accused-
appellant said he decided to leave but, as he was getting off, the driver
suddenly held him by the left shoulder and angrily demanded payment of
the fare. Accused-appellant said he told the driver not to worry as he would
pay, whereupon the driver, after calling him stupid (Gago ka pala), stabbed
him. He was hit in the lower part of his stomach. A scuffle ensued. He
claimed he was able to pin the driver against the steering wheel and wrest
the knife from him. He then stabbed the taxi driver several times with the
knife.20
After this, according to accused-appellant, he shouted for help. He claimed
that, seconds later, a man hit him with a lead pipe on the legs, pulled him
out of the taxi, and apprehended him. His hands were tied but he did not
resist. While he was made to sit in the gutter, he said someone searched
him and got his money amounting to P912.00. He was told to count the
money. Thereafter, he was taken to the hospital and then to the police
headquarters, where he was beaten up by the police. He was asked for the
names of his relatives and told to implicate Dondon Zapanta, his cousin, in
the crime.21
Accused-appellant denied there was a hold-up. He claimed he was merely
forced to defend himself from the taxi drivers attack.
The trial court found the testimonies of the prosecution witnesses to be
credible and rejected the accused-appellants claim of self-defense. It
therefore rendered judgment finding the accused guilty. Hence this appeal.
Accused-appellant makes two assignments of errors. First, he contends
that the trial court erred in giving credence to the testimony of prosecution
witnesses who did not have personal knowledge that a robbery was
committed. The contention has no merit.
In cases of robbery with homicide as defined in Art. 294(1) of the Revised
Penal Code, the principal purpose of the accused must be shown to be to
commit robbery, the homicide being committed either by reason of or on
occasion of the robbery.22 Now the elements of robbery with violence or
intimidation of persons are (a) that the subject is personal property
belonging to another; (b) that such property is unlawfully taken; (c) that
the taking must be with intent to gain; and (d) that the taking must be
through violence against or intimidation of any person. 23 Accused-appellant
argues in support of his first assignment of error that:
there [is] no direct evidence on record which will prove beyond doubt
the existence of robbery, or even the original criminal design of
accused-appellant to commit robbery against Danilo Manalus.
Admittedly, all that the prosecution witnesses can testify of their own
personal knowledge were the facts and circumstances surrounding the
alleged stabbing of Danilo Manalus, which was however, admitted by
accused-appellant as being done by him in self-defense. 24
It may be that Wycocos knowledge is limited to the stabbing of the victim.
However, when taken in relation to the other evidence of the prosecution,
Wycocos testimony shows that the violence resulting in homicide was
committed in the course of a robbery. The key piece of evidence clearly
showing robbery in this instance comes from the accused-appellant
himself. He was asked by Louie Jose, Why did you say it is a hold-up? In
response accused-appellant spontaneously answered, I am getting
despondent because I do not have money to buy milk for my child.
(Naaaburido ako dahil sa wala akong pambili ng gatas para sa anak ko). 25
The test of admissibility for evidence as a part of the res gestae is stated
with congency by Justice Ricardo J. Francisco thus:
...whether the act, declaration or exclamation is so intimately interwoven
or connected with the principal fact or event which it characterizes as to be
regarded as a part of the transaction itself, and also whether it clearly
negatives any premeditation or purpose to manufacture testimony. 26
Tested by this standard, the extra-judicial admission of accused-appellant
was clearly part of the res gestae and therefore correctly admitted by the
trial court as evidence against the accused-appellant. 27
Indeed, when taken together with accused-appellants actions during the
stabbing incident, his statement establishes the first three elements of
robbery. First, the statement evidences accused-appellants intent to rob by
showing his underlying motive for stabbing Manalus. Second, it proves that
the money taken from the accused-appellant when he was searched after
the incident by Wycoco and Jose belonged to the victim. It belies accused-
appellants claim that he had money on that day because he had been paid
his wage as a construction worker. Thirdly, when considered with the
direct testimony of Wycoco and Jose as to how they found the bloodstained
money on the accused-appellants person after the stabbing, 28 the evidence
proves that the element of unlawful taking had passed and that the
accused-appellant had come to gain full possession of the victims money
unlawfully and that he would have escaped had it not been for the timely
arrival of Wycoco.
The establishment of the last two elements renders inutile accused-
appellants second assignment of error that the trial court erred in
concluding that the bloodied money belonged to the victim Danilo Manalus
considering that there was no direct evidence that a robbery had indeed
taken place. Taken together with other evidence already considered, it is
evident that there was strong circumstantial evidence showing that the
bloodstained money recovered from the accused-appellant actually
belonged to the victim, Danilo Manalus. As the trial court observed:
Further, the stains on the money, which the accused admits to have come
from the blood of the victim, can only signify that the motive was to rob the
victim of his collected fare. The claim of the accused that it was taken from
his left pocket and then returned to him for counting is too contrived to be
believable. How could he have done so when his hands were tied at that
time?29
There is little in the record to distrust the testimony of the prosecution
witnesses. Bonifacio Wycoco and Louie Jose freely and readily gave
positive, straightforward and objective accounts of the events surrounding
the occasion of the subject crime. Wycocos written statement, given to the
police, substantially and materially tallied with his testimony in court.
Moreover, there is no evidence that either Wycoco or Jose was actuated by
improper motives to testify against accused-appellant. It is noteworthy
that accused-appellant did not deny his extra-judicial admission to witness
Jose that he committed the crime because he needed money.
There is every reason to give to the testimonies of Wycoco and Jose full
evidentiary weight and credit, consistent with the rule that, where the
defense fails to prove that witnesses are moved by improper motives, the
presumption is that they are not so moved and their testimonies are
therefore entitled to full weight and credit. 30
Above all, it should be borne in mind that an accused who admits inflicting
a fatal injury on his victim and invokes self-defense must rely on the
strength of his own evidence.31 Against the clear and damning evidence of
the prosecution accused-appellant in this case offered nothing but his own
sole testimony to prove self-defense. Even then, inconsistencies in the
accused-appellants testimony are not isolated. Accused-appellant, among
other lapses, failed to deny or explain the presence of the bloodstained
kitchen knife32 found inside the taxi, in addition to the fan knife
(balisong), 33 which suggest that accused-appellant had a companion in
assaulting the driver. In fact, a John Doe was charged in the information
filed below.34 Neither has accused-appellant provided additional evidence
other than his verbal testimony about the stab wound he supposedly
received from the victim.
Indeed, the evidence satisfies the Rules of Court criteria for circumstantial
evidence sufficient to support conviction, to wit: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.35
However, the award of damages should be modified. Other than the
necessary expenses entailed by the burial and wake of the victim, such as
funeral services36 and food, the trial court erred in awarding actual
damages for other unnecessary or vague items described by the victims
father such as miscellaneous expenses and video coverage amounting
to P21,500.37The award of actual damages should therefore be reduced
to P39,500. In accordance with recent rulings, 38 the heirs of the victim are
in addition entitled to a civil indemnity of P50,000. The award of moral
damages in the amount of P100,000 is excessive and should likewise be
reduced to P50,000.0039
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED, with the
MODIFICATION that accused-appellant is ordered to pay the heirs of the
Danilo Manalus the sum of P50,000 as indemnity for the death of Manalus,
while the awards of actual and moral damages are reduced to P39,500
and P50,000.00 respectively.
SO ORDERED
JAVA
PEOPLE vs. JAVA
 On March 19, ’93, 2 men appearing to be customers went inside
the V. Valdez Trading, a gravel & sand establishment. 1 approached Salvador
Cambaya, a truck helper, & poked a gun at him, announced a hold-up, took his
P20 & ordered him to go inside the building where the other man, later
identified as Felimon Java, had gathered the other employees & customers.
Java ransacked the drawers & took some money then went inside a room
where Michael Valdez, the son of the owner of the establishment was. Java
rushed out holding a brown envelope & they left.
 Virginia Cabate Valdez, Michael’s mom who was outside the
establishment at the time, was informed that a commotion was happening in
their establishment. She went out and Michael told her they were robbed of
P50K & Michael hopped on their car to chase the robbers. Virginia hopped in.
They were able to catch up and while they were side by side with the robbers’
get away vehicle [a jeepney], one of the robbers fired at them, hitting Michael
on the torso & on his side, killing him.
 Cambaya & Mrs. Valdez described the man who killed Michael.
Mrs. Valdez also testified she could positively identify her son’s killer if she saw
him again. As a result of such identification, Java was arrested and was charged
with Robbery w/ Homicide.
 At the trial, Cambaya and Mrs. Valdez recounted that the accused,
conspiring together, with intent to gain and with violence, intimidation of
person & by pointing their firearms, robbed Virginia & Michael of P50K and on
the occasion of such robbery, shot Michael and killed him.
 Pastor also testified that his establishment lost P50K to the
robbers.
 The defense presented the testimonies of Felimon Java and Col.
Rodolfo Garcia, Patrolman Jose Malasa & Pfc. Mario Almariego—the witnesses.
Their theory is that accused could not have committed the crime charged as he
was at the office of Col. Rodolfo Garcia, then station Commander of QC Police
Force, at the precise time & date as that of the commission of the crime. They
also presented as evidence, the letter of recommendation that Java was asking
from Col. Garcia for his reinstatement to the service addressed to Col.
Guillermo Domondon & dated Mar. 19, 1993.
 TC convicted Java of the offense charged and sentenced him to
Reclusion Perpetua with damages amounting to P50K in relation to the robbery
at bar, P50K as actual damages, P100K as moral damages and P100K as
exemplary damages.
WON Cambaya positively identified Java as a principal actor in the
commission of the crime at bar given the disparity in the cartographs of the
supposed suspects
 YES. Although the cartographs did look rather dissimilar, the
descriptions given by Virginia and Cambaya point to one & the same person.
Besides, the important factor is that both witnesses identified Java in court
when they came face to face with him & pinpointed to him respectively as one
of the robbers and the gunman.
WON prosecution was able to establish the fact of robbery because only 2
witnesses testified to the same, namely, Cambaya and Pastor Valdez.
 YES. Sec. 34, ROC 132 requires that for evidence to be
considered, it should be formally presented while Sec. 35 adds that the offer of
the testimony of a witness must be made at the time the witness is called to
testify. Although Pastor was only called to the witness stand at the latter part of
the presentation of the prosecution’s evidence and there was no mention why
 his testimony was being presented, the presentation of his testimony was not
objected to either, w/c is required by Sec. 36.
 Besides, the robbery was already established by Cambaya who
stated that his P20 was taken at gunpoint & that Java’s companion ransacked
their office, found and fled away w/ some money. The amount stolen, unknown
to Cambaya, came to be known through Mrs. Valdez who testified that Michael
told her that they have been robbed of P50K. Such a statement is admissible in
evidence as one of the exceptions to the hearsay rule on the ground of
trustworthiness & necessity.
WON Virginia positively identified Java as a principal actor in the
commission of the crime at bar
 YES. Java points out that at Virginia was so tense & nervous
during the car chase and was crying the whole time so her attention must have
been focused on her son & not on the assailant. As she was crying, her glasses
must have even misted. Such conjectures, however, have no basis in fact.
WON Java may be found guilty of the crime of robbery with homicide based
on evidence not on record
 YES. Cambaya positively identified Java as one of those who held
him up as well as the establishment where he works and Mrs. Valdez identified
him as the jeep passenger who shot & killed his son. Hence, the connection
between the robbery & the homicide was sufficiently established.
 Furthermore, it cannot be denied that the act of killing was done
in order to repel an aggression w/c, had it been effective, would have
endangered the whole success of the robbery committed. It was done to defend
the possession of the stolen property.
 Where the deceased followed the robbers after he had been
robbed and by reason thereof, he was fired upon by one of the robbers, the
crime is robbery with homicide (People v. Moises), even if the murder was
perpetuated at a place different from that of the robbery & after an appreciable
interval of time (People v. Estabillo)
WON credence should be given to the testimonies of Col. Garcia and other
defense witnesses
 NO. Notwithstanding the stature of Java’s witnesses, their
testimonies may be disregarded in the light of the other defense evidence at
hand.
 The date of the letter of recommendation does not establish that
Java was at the Colonel’s office on said date & time as that of the commission
of the crime. There was no logbook which recorded his visit,nor the date & time
thereof; nor was the letter of recommendation recorded as having been issued
by the Colonel’s office on the said date.
Held: Decision of the RTC affirmed in toto.
TOLENTINO
Dionisia Datig, a vegetable vendor, was tending her store located in Barrio Kapangpangan, Sta.
Ana, Manila at about 11:00 o'clock a.m., on April 20, 1979 when she heard some noise as if
glasses were being broken in her store. Looking towards where the noise came from, she saw
two men whom she did not know, kicking her display shelf. She saw a policeman across the
street who happened to be the deceased, Pat. Agustin Panares. He was then conversing with
Lourdes Santos, another store owner in the same place.
Pfc. Rodrigo Capalad, on the other hand, received a telephone call about the incident from Pat.
Romeo Villagracia of ISOD Western Police District, at about 11:40 a.m. Taking cognizance of
the case, he proceeded to the crime scene. Already at the scene when Pfc. Capalad arrived
were operatives of the ISOD Western Police District. They found Pat. Agustin Panares lying on
his back, already dead, inside a "sari-sari" store and full of blood as he suffered multiple gunshot
and stab wounds. His firearm was missing from its holster.
Also found at the scene was a broken knife, a left foot slipper, and a pair of rubber sandals with
the name "DANNY" on the right foot and the initial "J" on the left foot.
Lourdes Santos, in whose store the body of Pat. Panares was found, gave a statement as
follows: She was conversing with Pat. Panares at about 11:00 a.m., on April 20, 1979, when she
noticed a commotion in front of the store owned by Aling Dionisia across the street. She was
able to Identify the three (3) male persons who broke the "escaparate" because they usually
pass at her place to buy. She likewise knew Pat. Panares because he used to take snack in her
store after his tour of duty.
Lourdes Santos also mentioned that Aling Dionisia approached Pat. Panares for help and that
Pat. Panares asked the latter to call another policeman as the trouble makers were too many for
him. When Aling Dionisia had already left, the three trouble makers, one after the other
approached Pat. Panares. The one who was ahead held Pat. Panares' hands from behind. As
Panares struggled to free himself, the second man stabbed him while the accused, Arsenio
Tolentino, grabbed Pat. Panares' gun and shot him with it, three times. The three men then ran
away.
Dr. Luis Larion, medico-legal officer of the Western Police District, performed an autopsy on the
cadaver of Pat. Agustin Panares after it was Identified by his wife. His findings show that the
victim suffered 15 external injuries including multiple abrasions. The more serious injuries were
caused by more or less 3 kinds of weapons, namely: a sharp pointed instrument causing two
stab wounds and two incised wounds; a long pointed instrument causing three punctured
wounds; and a firearm causing 4 gunshot wounds, three of which were fatal (Exhs. "C" and "E").
Without the three fatal gunshots wounds, the victim could still have survived as none of the stab
wounds were fatal. The abrasion on the chest, neck and chin could have been caused when he
fell or were suggestive of a scuffle before he was shot. The fired bullets recovered from the
victim's body were submitted to the Ballistics Section of the Western Police District for
examination. The findings were to the effect that the bullets were fired from the barrel of Pat.
Panares' gun.
Arsenio Tolentino who fled to Nabua, Camarines Sur, was arrested on August 25, 1979.
Tolentino verbally admitted his participation in the perpetration of the crime and accompanied
the Special Operations Group of the Western Police District of Sta. Ana to Masantol, Pampanga
to recover Pat. Panares' gun from a cousin with whom he left it. However, Tolentino's cousin told
the team that he gave the gun to another person in Hagonoy, Bulacan, The gun was recovered
from said person. The accused was then turned over to the investigators together with the
recovered gun.
As to the companions of appellant, Gerundio Tolentino was killed before he could be tried and
the whereabouts of Eduardo Llamas are unknown.
On November 20, 1981, the trial court rendered judgment, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused, Arsenio Tolentino y Doria,
guilty beyond reasonable doubt of the crime of robbery with homicide,
aggravated by treachery, and hereby sentences him to DEATH; to
indemnify the heirs of the deceased, Pat. Agustin Panares, in the sum of
P12,000.00 for the death of the latter; and to pay the costs.
Atty. Emilia Saturnino, counsel de oficio for the accused, is hereby awarded
P500.00 as attorney's fees. (p. 14, Rollo).
The accused-appellant now assigns the following errors:
I. THE LOWER COURT ERRED IN FINDING THAT APPEALLANT
COMMITTED THE CRIME OF ROBBERY WITH HOMICIDE.
II. THE LOWER COURT ERRED IN FINDING THAT THE CRIMEE
COMMITTED WAS ATTENDED BY THE AGGRAVATING
CIRCUMSTANCE OF TREACHERY. (pp. 4-5, Defendant-Appellant's Brief)
In his first assignment of error, the accused-appellant contends that there was no crime of
robbery with homicide committed. According to the accused-appellant, it was not established
that it was Tolentino's intention to steal the gun, but that the taking of the gun was a mere
afterthought. He further contends that robbery must precede the taking of human life. It should
not be a mere afterthought but should be the original design.
The contentions of the accused-appellant are untenable. The testimony of Lourdes Santos
clearly shows that there was an intent to rob the victim of his gun. The gun was first taken from
the victim before he was killed. The gun was then taken away and hidden. Nevertheless,
whether or not the taking was before or after the death of the victim is of no moment in this case.
It is immaterial that homicide preceded the robbery where robbery was the real motive of the
culprits (People v. Gapasin, 145 SCRA 178). In the case at bar, the accuse intended both to
take the gun and to kill the victim.
The fact that the accused brought the gun when he and his co-authors of the crime fled, is an
indication that there was, on their part, an intent to gain which is a necessary element of
robbery. Had there been no such intention, they could have left the gun after killing the victim.
On the contrary, they brought it with them and had another person keep it. The case of People
v. Albert Newman & Dionisio Tolentino G.R. No. L-45354, July 26, 1988), states that "a
presumption of guilt arises if the effects belonging to a person robbed and killed are found in the
possession of another."
Secondly, the accused-appellant claims that there is no treachery that attended the commission
of the crime as only Lourdes Santos testified on the manner of the commission of the crime but
she did not see the circumstances surrounding the shooting of the deceased by the appellant.
The allegation is likewise unmeritorious. Treachery cannot only be gleaned from the fact that the
fatal shot was fired while the victim was lying down. It is sufficient that the mode of attack was
consciously adopted by the culprits. Thus, Lourdes Santos in her testimony related:
xxx xxx xxx
... [O]ne after the other, the three trouble makers approached Pat. Panares.
The one who was ahead held Pat. Panares' hands from behind. As Panares
struggled to free himself, the second man stabbed him while the accused,
Arsenio Tolentino, grabbed Pat. Panares' gun sand shot him with it, three
times. The three men then ran away. (p. 7, Rollo)
From this, it is evident that there is treachery. There is treachery in a sudden and unexpected
attack which renders the victim unable to defend himself by reason of the suddenness and
severity of the attack (People v. Fernandez, 154 SCRA 30). In the case at bar, the victim was
unable to defend himself considering that his hands were held back while the two other authors
of the crime stabbed him one after the other and the accused fired the fatal shot. Such a
circumstance reveals that the appellants helped each other during the commission of the crime.
Such a method of attack or manner of killing clearly indicates the indispensable cooperation and
spontaneous coordination between the appellants (People v. Newman & Tolentino, supra) to kill
a helpless victim.
To say that nobody saw the accused actually fire the fatal shot and, therefore, the accused
should be acquitted is ridiculous. The inception of the crime was seen by a number of witnesses.
Logic and experience would dictate that an inference of guilt follows under the circumstances
where it was seen that the accused and his co-authors stabbed the victim and shortly thereafter,
gunshots were heard. The fact that the gun used was in the possession of a cousin to whom the
accused passed the gun is likewise relevant.
The accused-appellant further claims that treachery cannot be appreciated against the appellant
because in the absence of conspiracy, treachery can be appreciated only against the person
who adopted the treacherous mode of attack. Conspiracy need not be proved by direct
evidence, it may be inferred from the acts of the assailants (People v. Abueg 145 SCRA 622).
The simple fact that the three assailants approached the victim together and they all participated
in the assault which caused 15 stab, gunshot and other wounds during the commission of the
crime, thus, giving to each other moral and physical aid and assistance, from these acts taken
together, there is clearly manifest a concerted action in the pursuit of a common design to kill
and, subsequently, to steal (People v. Newman & Tolentino, supra). The act of one is
necessarily the act of all.
Moreover, the allegation of the accused that he was merely forced by Eduardo Llamas and
Gerundio Tolentino to shoot the victim is clearly without basis. If it were true that he was merely
forced, he could have jumped at the opportunity to escape when he came in possession of the
gun since he would then be in a superior position than the two, considering that compared to the
knives of the latter, he had a more powerful weapon. He could have used it against Eduardo and
Gerundio to frighten them. On the contrary, he proceeded with the shooting. The appellant's self-
serving statement is further negated by his claim in Exhibit "1" that he was on a drinking spree
with the two, that they went to the store to buy "pulutan" and that the victim was merely made
fun of (nakatuwaan) by them.
WHEREFORE, IN VIEW OF THE FOREGOING CIRCUMSTANCES, the decision of the lower
court is hereby AFFIRMED with the MODIFICATION that the death penalty, pursuant to the
1987 Constitution, is commuted toRECLUSION PERPETUA and the indemnity to be paid by the
accused-appellant to the heirs of the deceased is increased to THIRTY THOUSAND PESOS
(P30,000.00).
BARUT
According to the prosecution, shortly after sundown, on June 15, 1969, while
Marcelino Grospe was pasturing his carabao in his farm at Sitio Basilio, Barrio San
Jose, Roxas, Isabela (p. 4, Record), he saw Herminio Barut, Alejo Ramiscal, Ernesto
Quebral, Juan Agustin and Castor Acson, persons known to him, going towards the
hut or camarin of Francisco Lazaro, an octogenarian. Acson was armed with a
carbine. Sensing that the group had evil intentions, Grospe rode on his carabao,
crossed the Siffu River and informed his neighbors that Lazaro was in
trouble.chanroblesvirtualawlibrary chanrobles virtual law library
Acson held up Lazaro and at gunpoint got his money amounting to twenty-three
pesos. Acson's companions went up the hut, ransacked it and took his carpentry
tools worth one hundred pesos and parts of a carbine. These articles were later
recovered and presented as evidence (Exh. B to
F).chanroblesvirtualawlibrary chanrobles virtual law library
Grospe and his neighbors, Lorenzo Soriano, Saturnino Sales, Maxims Saludares,
Alejandro Tuvera and Evaristo Tuvera, armed with guns and bolos, constituted
themselves as a rescue party and repaired to the vicinity of Lazaro's hut. They
deployed behind the banana plants. There was a brief exchange of fire between the
two groups. Acson was killed while in Grospe's group Evaristo Tuvera was the lone
fatality. The malefactors fled from the scene of the fight. Alejandro Tuvera saw
them running away (54 tsn June 28, 1974).chanroblesvirtualawlibrary chanrobles
virtual law library
Evaristo sustained an entrance gunshot wound in the chest. The bullet penetrated
his heart and right lung and exited in the right scapular region or shoulder blade
(Exh. A).chanroblesvirtualawlibrary chanrobles virtual law library
The incident was investigated by the Constabulary. The affidavits of Grospe, Lazaro,
Alejandro Tuvera (son of Evaristo) and Lorenzo Soriano were taken and sworn to
before the municipal judge of Roxas on June 23, 1969. On the basis of those
affidavits, a complaint for robbery in band with homicide was filed against Barut,
Ramiscal, Quebral and Agustin in the municipal court of Roxas by a Constabulary
investigator on July 7, 1969.chanroblesvirtualawlibrary chanrobles virtual law library
At the preliminary examination on July 16 and 17, 1969, the municipal judge
interrogated Lazaro, Grospe, Soriano, Consolacion Cabutaje, the widow of the
deceased Evaristo Tuvera, and Doctor Luis R. Tamayo who conducted the autopsy
on the body of the deceased Evaristo Tuvera.chanroblesvirtualawlibrary chanrobles
virtual law library
However, the warrant of arrest dated July 17, 1969 was served upon Barut, Quebral
and Ramiscal a few years later or only on December 30, 1972, August 27, 1973 and
December 31, 1973, respectively (p. 3, CFI
Record).chanroblesvirtualawlibrary chanrobles virtual law library
The municipal judge conducted the second stage of the preliminary investigation
and took Quebral's statement on December 10, 1973. He took the statements of
Barut and Ramiscal on December 31, 1973.chanroblesvirtualawlibrary chanrobles
virtual law library
The case was elevated to the Court of First Instance only on January 9, 1974. The
fiscal filed against the same accused an information for robbery in band with
homicide dated February 10, 1974. As already stated, the trial court convicted them
(except Agustin who is at large in Mindoro) of robbery with
homicide.chanroblesvirtualawlibrary chanrobles virtual law library
Appellants Barut, Ramiscal and Quebral contend that the trial court's decision does
not state the ultimate facts on which the judgment of conviction was based. That
contention is devoid of merit. After meticulously summarizing the evidence of the
prosecution and the defense, the trial court synthesized its findings and concisely
narrated how the robbery with homicide was perpetrated by the accused. Then, it
ratio its conclusion that the robo con homicidio was not committed by a band. It
justified its view that the alibis interposed by the accused are not worthy of
credence.chanroblesvirtualawlibrary chanrobles virtual law library
The trial court's decision conforms with the requirement that the judgment should
contain and distinctly a statement of the facts proven or admitted by the accused
and upon which it is based (Sec. 2, Rule 120, Rule of Court; Sec. 12, Art. VIII, 1935
Constitution; Sec. 9, Art. X, 1973
Constitution).chanroblesvirtualawlibrary chanrobles virtual law library
The appellants argue that the case, should have been investigated by the police and
not by the Constabulary soldiers. That is a baseless or flimsy argument. The term
"peace ofricer" in section 2, Rule 110 of the Rules of Court, which enumerates the
persons who are competent to file a criminal complaint, includes members of the
Constabulary. They are directly charged with the preservation of peace, law and
order. It is their duty to investigate crimes and bring criminal offenders to justice.
(See secs. 825, 826, 831 and 848, Revised Administrative Code.) Generally, they
are more competent and experienced than policemen to investigate
crimes.chanroblesvirtualawlibrary chanrobles virtual law library
Appellants' other assignments of error, which deal with the credibility of the
prosecution witnesses, do not merit any serious consideration. Appellants'
arguments as to the discrepancies in the prosecution's evidence are fully answered
in the prosecution's brief.chanroblesvirtualawlibrary chanrobles virtual law library
Appellants' uncorroborated alibis have no exculpatory value. When the robbery with
homicide was committed, appellant Barut was allegedly in Barrio Malbog,
Tagkawayan, Quezon Province where he was working on a farm owned by his uncle;
appellant Quebral was at Barrio Baua, Gonzaga, Cagayan, while appellant Ramiscal
was at Barrio Salindingan, Ilagan, Isabela. The three appellants allegedly stayed in
those places for four years.chanroblesvirtualawlibrary chanrobles virtual law library
The three appellants are admittedly close friends (15-16 tsn September 25, 1974).
Together with Acson and Agustin, they were all residents of Barrio Masigun, Roxas.
The probability is that immediately after the occurrence of the incident in question
they fled from Barrio Masigun and stayed for more than three years in those
aforementioned places as fugitives from justice in order to avoid arrest and
prosecution. They then utilized their stay in those places as the basis of their
alibis.chanroblesvirtualawlibrary chanrobles virtual law library
As has been repeatedly observed in cases of similar nature, appellants' alibis cannot
destroy the positive Identification made by the prosecution witness, Marcelino
Grospe, who is acquainted with the appellants and who had no motive for
fabricating evidence against them.chanroblesvirtualawlibrary chanrobles virtual law
library
The robbery was proven beyond reasonable doubt. After the exchange of fire
between the rescue party and the five malefactors, the latter in their excitement
and confusion left the objects of the robbery at the scene of the encounter. Those
articles were recovered and presented as evidence in court (Exh. B to
F).chanroblesvirtualawlibrary chanrobles virtual law library
Although the killing of Evaristo Tuvera was perpetrated after the consummation of
the robbery and after the robbers had left the victim's house, the homicide is still
integrated with the robbery or is regarded as having been committed "by reason or
on the occasion" thereof, as contemplated in article 294(i) of the Revised Penal
Code.chanroblesvirtualawlibrary chanrobles virtual law library
In the controlling Spanish version of article 294, it is provided that there is robbery
with homicide "cuando con motivo o con ocassion del robo resultare homicidio".
"Basta que entre aquel este exista una relacion meramente ocasional No se requiere
que el homicidio se cometa como medio de ejecucion del robo, ni que el culpable
tenga intencion de matar, el delito existe segun constante jurisprudencia, aun
cuando no concurra o homicide, incluso si la muerte sobreviniere por mero
accidente, siempre que el homicidio se produzca con motivo o con ocassion del
robo, siendo indiferente que la muerte sea anterior, coetanea o posterior a este" (2
Cuello Calon, Derecho Pemt 1975 14th Ed. p.
872).chanroblesvirtualawlibrary chanrobles virtual law library
There is robo con homicidio even if the victim killed was an innocent bystander and
not the person robbed. The law does not require that the victim of the robbery be
also the victim of the homicide (People vs. Moro Disimban, 88 Phil 120; People vs.-
Salamuddin No. 1, 52 Phil. 670; People vs. Gardon, 104 Phil.
371).chanroblesvirtualawlibrary chanrobles virtual law library
In the instant case, the robbery spawned a fight between the robbers and the
neighbors of Lazaro, the robbery victim. The killing of Evaristo Tuvera resulted from
that fight. Hence, it was connected with the
robbery.chanroblesvirtualawlibrary chanrobles virtual law library
The three appellants, together with Agustin and Acson, were co-conspirators. They
are all responsible for the homicide. There being no modifying circumstances, the
penalty of reclusion perpetua imposed by the trial court is in conformity with articles
63(2) and 294(l) of the Revised Penal Code. Band is not aggravating because it was
not proven that four of the five malefactors were
armed.chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, the trial court's judgment is affirmed with the slight modification that
the appellants should pay solidarily to Francisco Lazaro the sum of twenty-three
pesos (P23) which was taken from him by one of the robbers. Costs against the
appellants.chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.
BALANAG
The essential facts came mainly from the testimonies of eyewitnesses Iluminada Lopez and
Genoveva Lopez y Obra.
On November 24, 1985, at about 7:30 P.M., GUILLERMO LOPEZ, SR., a dentist, was talking to
his wife, ILUMINADA LOPEZ, in the living room of their house, situated in Sitio Salapac,
Aringay, La Union, while their daughter, GENOVEVA LOPEZ y OBRA, was in the kitchen,
brushing her teeth. Suddenly, three (3) men barged into the front door of Dr. Lopez' house.
Iluminada and Genoveva recognized two (2) of them as their neighbors TITO BALANAG (a.k.a.
Andres) and FEDERICO BALANAG (a.k.a. Pedring). The third man, whom the Lopezes had
seen for the first time, was later identified as SERAFIN DACANAY, a "compadre" of Federico.
Serafin immediately announced a "hold-up." He poked a gun at the head of Iluminada, held her
arm and then led her towards Genoveva's room on the second floor of the house. Serafin
demanded money and other valuables from Iluminada. She then summoned Genoveva to give
her the keys to the cabinet. Her daughter followed.
Upon seeing Genoveva upstairs, Serafin also poked the gun at her head. Genoveva thus
obediently proceeded towards the cabinet, near the door of her room, and she was about to
open the cabinet when her father, Dr. Lopez, rushed upstairs. As Dr. Lopez was ascending the
stairs, Serafin yelled at him saying: "Okinam nga lakay sica ti ngangidarum quen Berto
Balanag (Vulva of your mother, you are (sic) the one (who) filed a case against Berto
Balanag." 4 He shot Dr. Lopez who fell down the stairs which had no railings. Downstairs, the
victim was met by accused Tito Balanag who stabbed him (the victim) with a dagger. Serafin
then went downstairs and, likewise, stabbed the victim. Seeing the helpless condition of her
father, Genoveva screamed. She and her mother also rushed downstairs. Iluminada thought of
asking for help from their neighbors. Thus, she ran past her husband and proceeded outside
their house thru the backdoor. Genoveva, on the other hand, went to her father's aid as Serafin
continued assaulting her father. During the commotion, Tito and Federico fled, taking with them
Genoveva's shoulder bag containing a diamond ring and earrings worth three thousand pesos
(P3,000.00); fifty dollars 
(US $50.00) cash; two hundred pesos (P200.00) cash; and a mini-stereo cassette, valued at
P2,000.00.
Iluminada had barely stepped out of the house when she was blocked by "Berto" (Roberto)
Balanag, Tito's father, who aimed his gun at her. Iluminada quickly retreated to the house and
closed the backdoor. She stood behind the door and locked it as Berto tried to force his way in.
In the meantime, Genoveva and Serafin grappled for the bolo of the latter. Irked, he lunged at
her, but she bravely parried the thrust with her arm. Her left forefinger was cut in the process.
Serafin also fired at her but missed. By stroke of luck, Genoveva managed to get a bolo and
attacked Serafin in self defense. Serafin died. So did the wounded Dr. Lopez. Several neighbors
of the Lopezes who heard the commotion arrived at the scene. One of them, a certain Jose
Dulay, reported the incident to the authorities.
That evening, police authorities, namely: Station Commander P/Sgt. Alejandro Basallo, Pfc.
Benjamin Rulloda, Pat. Simeon Madarang, and Pat. Wilson Argame inspected the locus
criminis. They found the bloodied bodies of Dr. Guillermo Lopez and Serafin Dacanay, sprawled
on the floor. They also recovered the following: a Ruby Magnum, Cal. 22, with serial no. 05522;
two (2) bolos soiled with blood; a double bladed dagger; six (6) empty shells; and one live
ammunition found inside the gun's chamber.
Dr. Armando Avena, Medical Officer of the Rural Health Unit of Doña Gregoria Memorial District
Hospital in Aringay, La Union, conducted the postmortem examination on the victim's body.
Based on his examination, Dr. Lopez sustained abrasion wound, two (2) stab wounds, and
multiple gunshot wounds (on the right breast upper outer quadrant, right zygomatic area and
right upper lip). 5 Dr. Avena also treated Genoveva Lopez Obra who sustained lacerated wound
on the 3rd left forefinger. 6
According to the widow, Iluminada, her dentist husband used to earn P10,000.00 monthly. At the
time of her husband's death, they had three (3) children in college. She suffered mental anguish
and could hardly sleep or eat upon her husband's death. During the two weeks wake for her
deceased husband, she spent, more or less, P25,000.00.
Federico Balanag interposed the defense of alibi. In the morning of November 24, 1985, he was
allegedly in a farm in Salapac, Aringay, La Union, together with his brother Renato and mother-
in-law, Florencia Hidalgo. At about 5:00 P.M., after a day's work of threshing  palay, they
proceeded towards Federico's house. They arrived home at 5:30 P.M., and dined together thirty
minutes later. Thereafter, Federico slept in the room with his youngest son Ronald. His wife,
Teresita and the rest of the family went to bed at 8:00 P.M.
According to Teresita, her husband was sound asleep when she woke up at around 11:00 P.M.
to urinate. She then nursed her eight-month old baby and stayed awake until midnight. At
around 2:00 A.M. the following day, the policemen came and took her husband with them. She
learned later that Dr. Lopez had been killed. She and her daughter Gina visited Federico in Jail.
On their way to the municipal building, they passed by the house of the victim. There were
several persons in the vicinity but she did not inquire what happened.
At the police station, Teresita noticed that her husband had bruises. He then told her he was
manhandled by Station Commander Alejandro Basallo.
Gina Balanag corroborated the testimonies of her parents pertaining to the whereabouts of her
father, the accused-appellant. She averred that on November 24, 1985, she went to school at
about 6:30 A.M. She returned home from school at 4:30 P.M. She saw her father an hour later.
Her father slept at 7:30 P.M. after dinner.
She claimed further that, at about 6:30 A.M., the morning following the incident, she was on her
way to school. As she was nearing the house of Dr. Lopez, Genoveva and the latter's sister who
was then carrying a wooden stick ("malo"), were waiting for her (Gina) and her companions
("Agharang da amin"). She decided to skip school.
The Balanags described their dwelling as a one room house that it would not be possible for
them to leave without being seen or noticed by the other members of the family. Prior to the
robbery and killing, the Balanags were in good terms with the Lopezes. Federico denied he was
in the company of his cousin Tito Balanag and Serafin Dacanay that fateful evening of
November 24, 1985. He admitted, however, that Serafin was the godfather of one of his
children.
After trial, the court a quo found Federico Balanag and his co-accused Tito Balanag guilty of
Robbery with Homicide. 7 They were meted the penalty of reclusion perpetua. The court a
quo also ordered accused-appellant and Tito Balanag, to indemnify, solidarily, the heirs of the
deceased Dr. Guillermo Lopez, the following amounts:
a) P50,000.00 — for the death of Guillermo Lopez;
b) P48,110.00 — as actual damages;
c) P20,000.00 — as moral damages; and
d) P172,000.00 — for loss of earning capacity.
Both accused appealed. 8 However, Tito Balanag, who has remained at large, did not file the
required Appellant's Brief. His appeal was considered abandoned for failure to prosecute his
appeal and, more importantly, for his refusal to submit himself to the jurisdiction of the
authorities. 9
Accused-appellant Federico Balanag now contends:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSSED,
FEDERICO BALANAG, OF THE COMPLEX CRIME OF ROBBERY WITH
HOMICIDE AND/OR IN NOT EXONERATING HIM OF THE OFFENSE.
We affirm the judgment of conviction.
Prefatorily, the defense assails the validity of the Criminal Complaint, dated November 27,
1985, 10 and the amended Criminal Complaint, dated December 2, 1985, 11 filed by investigating
officer P/Sgt. Alejandro Basallo, on the ground that the owner of the stolen items Genoveva
Lopez y Obra, was not identified. She was merely referred to as the "offended party." Accused-
appellant avers that a valid complaint for robbery, must specify the owner of the stolen property,
considering that the phrase "personal property belonging to another," as an essential element of
the crime of robbery, should be clearly established. 12 He claims, further that he could be
convicted of the crime of robbery with homicide since the victim of the robbery, Genoveva Lopez
y Obra, did not file any complaint for robbery, and the person killed, Dr. Guillermo Lopez, was
not robbed of his personal belongings. The argument lacks merit.
We need not delve lengthily on the cited defect in the Criminal Complaint and Amended Criminal
Complaint since the said error was corrected in the Information, dated March 14, 1986. 13 Said
information alleged that the stolen items belong to Genoveva Lopez y Obra, daughter of Dr.
Guillermo Lopez.
We have also ruled that in this kind of a complex crime, the victim of the robbery need not
necessarily be the victim of homicide. 14 Thus, in People vs. Disimban, 15 we affirmed the
conviction of the accused for robbery with homicide although the robbery victim was different
from the homicide victim. There is robo con homicido even if the victim killed was an innocent 
bystander. 16 Or that death supervened by mere accident, provided that the homicide was
produced by reason or on the occasion of robbery, inasmuch as it is only the result obtained,
without reference or distinction as to the circumstances, causes, modes or persons intervening
in the commission of the crime, that has to be taken into consideration. 17 In the recent case
of People vs. Pamintuan, 18 the accused prisoners were held liable for robbery with homicide
although the items robbed, i.e., five (5) shotguns and three (3) guns, Ruby Cal. 22, belong to the
armory of the Provincial Jail of San Fernando, Pampanga, and not the personal properties of the
homicide victims, the provincial jail guards.
We now come to the more important issues of whether the guilt of accused-appellant was
established beyond reasonable doubt. We rule in the affirmative.
At least two credible witnesses, Iluminada and Genoveva, positively identified accused-appellant
Federico Balanag as among those who barged into their house that tragic evening. Genoveva
even saw accused-appellant when he fled from the scene, taking with him a mini-stereo
cassette. These eyewitnesses could not have been mistaken as they knew Federico and Tito
even before the incident. The records reveal that the Lopezes and the Balanags were neighbors
since birth. 19
It was also not improbable for the eyewitnesses to recognized the faces of the culprits.
According to Genoveva, the accused were not wearing masks, albeit Serafin was wearing a hat.
At that time, too, the place of incident was well lighted as 50 watts electric bulbs, installed along
the porch, in the living room and the kitchen, were on. 20
The credibility of these eyewitnesses is further enhanced by the fact that Iluminada and
Genoveva had no ill feelings against Federico prior to the incident. Accused-appellant himself
confirmed this lack of ill motive. 21 Thus, we see no reason to depart from the well established
rule that when there is no evidence to show that the prosecution witnesses were actuated by
improper motive, their identification of the accused should be given full faith and  the offense, Congress had yet to restore the imposition of death penalty.
credit. 22
Nonetheless, accused-appellant stresses that nobody testified on his participation to the killing.
He points out that, since there was no proof of conspiracy, he could not be held responsible for
the death of Dr. Lopez. We hold otherwise.
Conspiracy need not be proved by direct evidence of prior agreement to commit the crime. It
could be inferred from the conduct of the accused before, during or after the commission of the
crime, showing that the accused had acted in unison with each other, evincing a common
purpose or design. 23 The circumstances in field show the existence of conspiracy among
accused-appellant and his cohorts. Federico, Serafin and Tito simultaneously barged thru the
front door of Dr. Lopez' residence. To further secure the area, Roberto Balanag stood on guard
at the back portion of the house. Serafin then led Iluminada upstairs, while Tito and Federico
stayed downstairs. Their plan was almost perfect and would have been successful if Dr. Lopez
did not attempt to rescue his wife and daughter from Serafin. Dr. Lopez' unexpected resistance,
albeit futile in the hands of the armed robbers, aborted the well-planned robbery. Thus, Tito and
Federico hastily got Genoveva's shoulder bag and the mini-stereo cassette. They fled together,
leaving behind Serafin who was still grappling with Genoveva. Without a doubt, accused-
appellant acted in unison and cooperated with his companions in committing the robbery.
It is settled that when homicide is committed as a consequence or on the occasion of the
robbery, all those who took part as principals in the robbery will also be liable as principals of the
special crime of robbery with homicide, although they did not actually take part in the homicide.
The exception to the rule is when it is clearly shown that they endeavored to prevent the
unlawful killing. 24 In this case, there is no evidence that accused-appellant tried to prevent the
killing of Dr. Lopez. His claim of innocence is believe by the fact that, after Dr. Lopez was shot
and stabbed by his cohorts, he carried away the mini-stereo cassette of the Lopezes. Accused-
appellant was, therefore, correctly found guilty of the special complex crime of robbery with
homicide.
Accused-appellant's defense of alibi cannot succeed because of circumstances pointing to its
contrived nature and his positive identification by the prosecution witnesses. 25 The records show
that accused-appellant's house was about 120 meters from the house of the Dr, Lopez, thus, it
was not physically impossible for him to be at the scene of the crime and to commit the crime. 26
The testimonies given by accused-appellant's wife and daughter vis-a-vis that of eyewitnesses
Iluminada and Genoveva, do not inspire belief. For one, Gina lied when she testified she
attended school on November 24, 1985. When confronted that it was a Sunday, she got
confused and said she went to school on November 22, 1985 or January 22, 1985. Gina also
denied knowing Dr. Lopez, only to admit later that she knew him as he was their
neighbor. 27 She also claimed that Genoveva and her sister waited for them after the incident,
prompting her not to proceed to school. On cross-examination, however, Gina admitted that she
was not sure if they were really waiting for them.
The testimony of Teresita appears to be more consistent in contrast to her daughter's story.
However, the trial court gave greater credence on the prosecution witnesses' testimonies. It is
settled that when the issue of credibility of witnesses is involved, appellate courts will generally
not disturb the findings of the trial court considering that the latter is in a better position to decide
the question, having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial, unless certain facts of value have been plainly overlooked
which if considered, might affect the result of the case. 28
Robbery with Homicide is punishable with reclusion perpetua, notwithstanding the aggravating
circumstances attending the commission of the crime, 29 since at the time of the commission of
In connection with the civil liability of accused-appellant, the award of P48,110.00, for actual or
compensatory damages, is not fully supported by evidence. The records show that the total
amount incurred for burial/funeral expenses was P19,482.00, not P23,110.00. 30
Anent Mrs. Lopez' additional claim of P25,000.00 for the expenses incurred during the two
weeks wake for the victim, we find the said claim reasonable considering the social standing of
the Lopezes in the community. The Lopezes are prominent in their place, not to mention they
belong to a big family. (Mr. and Mrs. Lopez sired 13 children, most of whom are professionals
and gainfully employed). The total award for actual damages should then be P44,482.00, and
not P48,110.00.
With respect to the claim for loss of earning capacity of the victim, we note that the victim was
already 69 years old at the time he was killed on November 24, 1985. His income as a dentist
was P10,000.00 per month, or P120,000.00 per annum. After deducting therefrom the
necessary and incidental expenses which the victim would have incurred if he were alive, the
court a quo, declared that the victim's annual net income would be P24,000.00. The trial court
multiplied his net annual income by his life expectancy of seven (7) years and two (2)
months, 31hence, P172,000.00 was awarded for loss of the earning capacity of the victim.
In computing the loss of the earning capacity of the victim, several factors are considered
besides the mathematical computation of annual income times life expectancy. Allowances are
made for circumstances which could reduce the computed life expectancy of the victim, e.g.,
nature of work of the victim, 32 his lifestyle, age, and state of health prior to his death. 33 In
addition, we have to consider the rate of loss sustained by the heirs of the victim.  34 In this case,
albeit there was no evidence on the state of health of the victim, considering his advanced age,
we find it reasonable and fair to assume that he would not be able work and earn, as a dentist,
until he reaches the final moment of his life. 35 Thus, we reduce the award for loss of the earning
capacity of the deceased to P144,000.00, which is the approximate amount he would have
earned until his 75th birthday. 36
WHEREFORE, premises considered, we AFFIRM WITH MODIFICATION the assailed Decision,
dated September 5, 1991, of the Regional Trial Court (Branch XXXIII) of Bauang, La Union, in
Criminal Case No. A-1540. Accordingly, the indeminification granted in favor of the heirs of DR.
GUILLERMO LOPEZ, are modified as follows:
TIONGCO
The facts of the present case are as follows: On or about December 3, 1915, in the
municipality of Sara, Province of Iloilo, six men, among whom were the four
defendants, Narciso Castaño, Cristeto Ledesma, Pedro Huerva, and Rufo Tiongco, all
carrying arms, entered at night the house of Catalina Balinon and, employing
violence and intimidation upon the inmates thereof, seized and carried away with
them certain articles of personal use, valued at P357.50 and belonging to Catalina
Balinon and Rosario Juaneza. In order to obtain an easy entrance into the house, of
said defendants wore the uniform of a Constabulary private, and another was
dressed like a policeman. Upon their arrival at the house and after making known
that they were Pedro Huerva, in reply to the question asked him from within, told
the inmates of the house that they were Constabulary inspectors. The defendants
and their two companions were then invited to enter. Pedro Huerva and Cristeto
Ledesma went in, and the others remained outside. When inside the house, Huerva
and Ledesma again told the inmates that they, these defendants, were
Constabulary inspectors and had come to search the house to see whether people
living in it had firearms. Then they bound the two men they found in the house, an
old man and a young man, and conducted them below where they were left in
charge of the rest of the band, while Huerva and Ledesma reentered the house to
see whether they could find any articles of value.
After the robbers had seized such things as they wished to carry off and when ready
to go out, they took the three women below blindfolded. The band then headed for
the river near by to embark in the banca, in which they had Narciso Castaño
compelled two of the women, Juaneza and Eusula, to accompany them, and while
the band was on its way to the banca these two men separated from the rest, took
these two women with them to a place near a marsh not far from the river bank,
and there raped them, employing force and intimidation to accomplish their
purpose. Cristeto Ledesma raped Rosario Juaneza, and Narciso went to the banca,
where the other robbers were waiting for them, and all left.
The facts above related, fully proven in this case, constitute the complex crime of
robbery in a band, accompanied by rape committed upon the person of two women
who resided in the house where the robbery took place. Said crime is provided for
and punished by articles 502 and 503, No. 2 of the Penal Code, and the facts in this
case fall within their provisions, inasmuch as the malefactors were armed and were
more than four men, searched the inside of the house and some of its furniture,
seized money and various other effects, including important documents; all together
valued at P357.50, belonging to the owner of the house, Catalina Balinon, and
Rosario Juaneza, both inmates thereof. Upon going out of the building, two of the
robbers, Narciso Castaño and Cristeto Ledesma, separated from their companions,
took with them the said Rosario Juaneza and Nieves Eusula to a secluded place near
a river not far away, where they raped them and, immediately after the commission
of these outrages, abandoned their victims and rejoined the other robbers, their
companions, who were awaiting them in a banca moored to the river bank. As the
crime of robbery, with that of the rape of said two women — a crime against
chastity committed on the occasion of the robbery — was perpetrated by the
malefactors in the said house of Catalina Balinon, both crimes should be punished
ass one single complex crime, as defined and qualified by paragraph 2 of article 503
of the Penal Code; for, besides the robbers seizing the money and the other effects
they found in said house, two of them sullied the honor of the two women living
therein, and the companions of the two men who committed the rape made no
opposition nor prevented these latter from consummating this other crime,
apparently unconnected with and unrelated to that penal law, in odium of such
offenses against property and chastity, has considered them complex and punished
them by one single penalty.
In the case of a complex crime, like the one here under prosecution, all the persons
who took part in its commission are identically liable therefor and should be
punished with the penalty provided in article 503, paragraph 2, of the Penal Code.
The defendant Rufo Tiongco and Pedro Huerva, who took no part in the rape of the
women Juaneza and Eusula, cannot be excepted from this penalty for the reason
that the penal law does not require the condition that the rape be committed prior
to, or simultaneously with the robbery. it being sufficient that this crime be
perpetrated on the occasion of the robbery. So the law says, in the definition of the
crime, that when the robbery is accompanied by rape or mutilation caused
purposely, all the robbers who took part on the perpetration of the complex crime
are liable for all the offenses falling within the limitation of certain circumstances
specified by the law, committed by the members of the band.
It is unquestionable that, in the act of the robbery, two of the robbers conceived the
purpose of raping two of the three women they forthwith abducted, and that they
therefore compelled them to go down from the house and took them to a secluded
site not far from the landing place, where the boat was moored, in which boat they
had crossed the river on their way to the place of the robbery; that against said
forcible conduction, the other robbers made no remonstrance nor any material
opposition to the commission of the crime against the chastity and the honor of the
two women who were raped. Therefore, the defendants Tiongco and Huerva, for the
very reason that they are liable for all the other acts performed on the occasion of
the robbery, although they may not actually and materially have taken any part in
the rape committed upon those two women by the other two defendants, their
companions Ledesma and Castaño.
If any of the defendants had wounded or killed an inmate of the house that they
robbed, all the defendants would, under the law, have been punished for the
complex crime of robbery with the infliction of wounds or the commission of
homicide; and, in the present case, because two of the robbers raped two women,
all the malefactors are liable for the complex crime in question.
In the commission of the crime, due weight should be given to the attendance of
the aggravating circumstances of its having been perpetrated at night, in the
dwelling of the offended parties, in a desolate place, and in a band. There is no
extenuating circumstance to offset or compensate the effects of said aggravating
circumstances. Therefore the effects have incurred the maximum penalty fixed by
law.
For the foregoing reasons we should sentence, as we hereby do, each of the
defendants Narciso Castaño, Cristeto Ledesma, Pedro Huerva, and Rufo Tiongco, to
the penalty of cadena perpetua and to the accessory penalties of paragraph 2 and 3
of article 54 of the Penal Code; and, in case they be pardoned from the principal
penalty, they shall suffer those perpetual disqualification, subjection to the
surveillance of the authorities for the remainder of their lives, if these accessory
penalties be not remitted in the pardon of the principal penalty, and they shall make
restitution of the stolen articles, or jointly or severally pay the value thereof to the
aggrieved parties, without subsidiary imprisonment in case of insolvency, pursuant
to article 51 of the Code. The defendants Cristeto Ledesma and Narciso Castaño are
each sentenced to pay an indemnity of P200 to Rosario Juaneza and Nieves Eusula,
respectively. Each of the four appellants shall pay one-fourth of the costs of both
instances. The judgment appealed from is therefore affirmed, in so far as it agrees
with this decision, and reversed, in so far as it does not. So ordered.
TANO VS. PEOPLE
The Facts
Version of the Prosecution
The solicitor general sums the evidence for the prosecution in this wise: 4
On November 6, 1997, at around 7:30 p.m., Amy de Guzman (Amy) was
tending a Video Rental Shop owned by her employer and cousin, Ana
Marinay (Ana) located at 153 Loreto Street, Morning Breeze [S]ubdivision,
Caloocan City (Tsn., January 8, 1998, p. 3). Thereupon, accused-appellant
Alexander Taño, a relative of Ana's husband Gerry Marinay (Gerry), arrived
at said shop (ibid., p. 4). Alexander Taño then asked Amy about the time
when Gerry would be coming home, to which she replied, 10:00 p.m. (id.).
He then asked about the time when Ana would be coming home and Amy
replied that she did not know (id.).
Thereafter, but still on the same date, Alexander Taño kept on going in and
out of the Video Shop, and on the last time that he went inside said shop,
he jumped over the counter of the shop to where Amy was and seized the
latter by placing one of his arms around Amy['s] neck, while his other hand
held a knife which he poked at her neck (id., pp. 4-5).
Terrified by the attack, Amy started shouting for help but Alexander Taño
increased the volume of a karaoke which was on at the time to drown Amy's
cries for help (id., p. 5).
Alexander Taño then dragged Amy to the kitchen of the shop where, at
knife point, he ordered the latter to undress and he thereafter started raping
her (id., pp. 5-6).
However, while Alexander Taño was raping Amy, somebody knocked at the
door of the shop prompting the former to stop what he was doing and
ordered Amy to put on her clothes (id., pp. 6-7).
Alexander Taño then directed Amy to go upstairs to the second floor of the
shop to change clothes as he will be taking her with him (id., p. 7). But
suddenly thereafter, Taño pulled her down and punched her in the stomach
thrice causing her to lose her balance (id.). Taño then started cursing her
and again placed himself on top of her while poking a knife at her neck (id.).
Amy then pleaded with Taño to just take anything inside the shop and to
spare her life, to which Taño replied "no, I will not leave you here alive."
(id.).
But after a while and upon Amy's pleading, Taño put down his knife and
while he was kissing Amy, the latter got hold of the knife which she
surreptitiously concealed under the stairs (id.).
Therafter, Taño became violent again and banged Amy's head on the wall
causing the latter to lose consciousness (id., p. 9). When she regained
consciousness she found herself and Taño inside the toilet of the shop and
the latter again banged her head, this time on the toilet bowl, several times
causing Amy to again lose consciousness (id., pp. 8-10).
Thereafter, Taño went upstairs and looted the place of valuables belonging
to Amy's employer, Ana. Amy, herself lost her ring, bracelet and wristwatch
during the incident in question (id., p. 10).
At about 9:00 o'clock p.m. of the same day, Amy's employer Ana arrived
and found the shop in disarray with the "karaoke" in full volume (Tsn., 13,
1998, pp. 2-4). After turning off the "karaoke["], Ana proceeded to the toilet
where she found Amy bathed in blood (ibid., p. 4).
Ana immediately sought the help of Barangay officials of the place and Amy
was brought to the "MCU" Hospital where she was initially treated of her
injuries (id., p. 5). Amy was, later on, transferred to Jose P. Reyes Memorial
Medical Center (JPRMMC) where she was confined for four (4) days.
Version of the Defense
On the other hand, appellant's version of the incident is as follows: 5
. . . [O]n November 6, 1997, at around 7:40 p.m., he went to the house of
his cousin Gerry Bautista Marinay at 113 Loreto St., Morning Breeze
Subdivision, Kalookan City and upon arrival thereat he found therein Amy
de Guzman alone which she greeted him because she knew that the
accused was a frequent visitor thereof. Upon learning from her that Gerry
was not around, accused proceeded to the kitchen to drink water and after
he bought cigarettes at the nearby store, he returned to the shop and
seated himself infront of Amy de Guzman's counter. After the lapse of five
minutes he got bored and went out again to wait for the arrival of GERRY.
After finishing his cigarette he returned to Amy and talked with her and
learned that ANA was at her newly opened restaurant. After a while, the
thought of stealing his cousin's valuables struck his mind owing to his dire
need of cash/money. Thus, he approached Amy and held her hands and
asked her to come with him because he badly needed money, to lead him
to where his cousin was keeping his money and valuables. As to Amy's
surprise [sic], she shouted and to stop her, the accused covered her mouth
with his right hand but Amy put up a struggle and in the process they both
fell down and rolled on the floor. Thence, the accused was able to subdue
Amy and forcibly took her in the upstairs where he did the ransacking of the
drawers while holding the private complainant's hand. However, she was
able to free herself from his hold and ran downstairs to the kitchen where
she tried to get hold [of] a knife but he was able to wrest with her. As the
accused was rattled, he pushed Amy inside the comfort room and shoved
her head against the tiles to mum her. He took Amy's bag wherein he
placed his loot consisting of 2 wrist watches, including Amy's Alba watch, a
bracelet, clothes and hair blower as well as jewelry box containing five rings
which he placed in his pocket, then he proceeded to his brother's house in
Taytay. Upon arrival of the police and his cousin thereat he returned the
jewelry box to the latter but the same was not presented in court, that no
other jewelry was taken by him from the place except those already
specified, muchless has he taken any cash money from his cousin Gerry
Marinay, that he has a wife staying in Iloilo and he has a girlfriend here in
Manila, that he never raped the private complainant Amy de Guzman and
 neither [had he] courted her prior to the incident. (TSN., March 3, 1998, pp.
2-9) (TSN., March 4, 1998, pp. 2-6)"
Ruling of the Trial Court
Assessing the testimony of the private complainant, the trial judge observed: 6
Verily this Court finds the forthright account of the incident by the private
complainant whose small and slender physique was certainly no match to
the tall well-built body of an ex-convict, to be candid, straightforward,
spontaneous and frank which remained consistent and unwavering despite
the rigid cross-examinations of the defense counsel wherein she narrated in
detail the sexual assault with the use of a knife perpetrated by the accused
against her.
Parenthetically this Court has observed the deportment of the private
complainant at the witness stand and certainly she did not appear to have
the callousness and shrewdness of a woman capable of imputing a heinous
crime against the [a]ccused if the same is not true. Besides, the defense
has not shown any evil motive or ill will on the part of the private
complainant for testifying the way she did in this case.
The lower court accepted the judicial admission of the accused that he stole valuables belonging
to private complainant and her employer, and then proceeded to determine "whether or not the
prosecution evidence has sufficiently established the rape angle of the case."
In fine, the [a]ccused having already admitted the robbery charge coupled
with the fact that the prosecution has established with clear and convincing
evidence [a]ccused's culpability for sexually assaulting the pri[v]ate
complainant leaves no room for doubt of the guilt of the accused for the
complex crime of robbery with (aggravated) rape[.]
Furthermore, the trial court appreciated dwelling as an aggravating circumstance because the
incident took place supposedly at the residence of private complainant's employer, "which
doubles as a video rental shop." 7 Applying Article 63 of the Revised Penal Code as amended by
RA 7659, it imposed the maximum penalty provided under Article 294 of the same Code as
amended, which is death.
Thus, this automatic review by this Court. 8
Issues
In his Brief, 9 Appellant Taño assigns only two errors or issues. These are:
I
The lower court erred in not taking into consideration the testimonies of Dr.
Godofredo Balderosa and Dr. Maria Redencion Bukid-Abella which negate
the rape [charge] imputed against the accused.
II
The lower court erred in finding the accused guilty beyond reasonable doubt
of the crime of robbery with rape despite the prosecution's insufficiency of
evidence.
In criminal cases, an appeal throws the whole case open for review and the appellate court may
correct such errors it may find in the appealed judgment, even if they have not been specifically
assigned. 10 Hence, this Court likewise reviewed (a) the propriety of appellant's conviction of the
special complex crime of robbery with rape and (b) the trial court's appreciation of dwelling as an
aggravating circumstance. These two items will be discussed as the third and fourth issues.
The Court's Ruling
After a careful review of the evidence on record, the Court finds that (a) appellant is guilty of two
separate crimes — rape and robbery, (b) dwelling cannot be appreciated as an aggravating
circumstance, and (c) the proper penalty for rape is reclusion perpetua, not death.
First Issue:
Evaluation of the Examining
Doctors' Testimonies
Appellant contends that the trial court failed to give due credence to the testimonies of Dr.
Godofredo Balderosa and Dr. Ma. Redencion Bukid-Abella, who both examined and treated
Amy de Guzman's physical injuries immediately after the incident. Both doctors similarly stated
that the victim complained to them of physical assault and attempted rape only, not of
consummated rape. 11 Additionally, the findings of NBI Medico-Legal Officer Aurea Villena were
allegedly inconclusive as to whether there was sexual intercourse between the appellant and the
victim. 12 Their testimonies supposedly bolster appellant's innocence of the rape charge.
Otherwise stated, appellant claims that the failure of Amy de Guzman to immediately disclose
the rape to her examining physicians could only mean that she was not in fact sexually
assaulted.
In many criminal cases, especially of rape, this Court has acknowledged that the vacillation of
the victim in reporting the crime to the authorities is not necessarily an indication of a fabricated
charge. Neither does it always cast doubt on the credibility on the complaining witness. 1 The
initial reluctance of a young, inexperienced lass to admit having been ravished is normal and
natural. 14 The Court takes judicial notice of the Filipina's inbred modesty and shyness and her
antipathy in publicly airing acts which blemish her honor and virtue. 15 She cannot be expected to
readily reveal the fact of her sexual violation to total strangers.
It is thus perfectly understandable and consistent with common experience that Amy initially
tried to downplay the assault upon her chastity by telling the doctors that there was no
consummation of the act. The following day, however, she was finally able to gather the courage
to reveal the entire truth to her cousin-employer, Ana Marinay. 16 She also executed a Sworn
Statement 17 before PO3 Jaime Basa, detailing how she had been raped and beaten by
appellant. Four days later, she acceded to undergo a medico legal examination of her genital
organ, which was conducted by Dra. Aurea Villena of the Jose R. Reyes Memorial Hospital,
where she was confined.
Time-honored is the doctrine that no young and decent woman would publicly admit that she a Then Alexander Taño kept coming in and out of the
was ravished and her virtue defiled, unless such was true, for it would be instinctive for her to video rental shop and last time he went in, he slammed
protect her honor. 18 No woman would concoct a story of defloration, allow an examination of her the door and jumped over the counter where I was and
private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid strangled me while his other hand is holding a knife, the
tale was not true and her sole motivation was not to have the culprit apprehended and knife was poked at the right side of my neck.
punished. 19 Thus, absent any credible imputation of ill motive on the part of the private
complainant to falsely accuse the appellant of a heinous crime, her candid and consistent
q What else transpired thereafter?
testimony should be given full faith and credit. 20 It is a basic rule, founded on reason and
experience, that when a victim testifies that she has been raped, she effectively says all that is
necessary to show that rape was indeed committed. 21 a And he took the knife from the right hand and held it
with his left hand and turned the volume of the karaoke
louder so that my voice will not be heard since I was
In the case at bar, we find no reason to deviate from these doctrines. Amy de Guzman's
shouting.
straightforward and convincing testimony, which will be detailed later, bears no badge of
material inconsistency which would bring doubt to its veracity. She stood firm on her tale
throughout her court appearance. The trial judge observed her "to be candid, straightforward, q When the accused poked the knife, what did you
spontaneous and frank . . . [and she] remained consistent and unwavering despite the rigid feel?
cross-examinations of the defense counsel . . ." 22
a "Natakot po."
Besides, no ill motive was imputed on her. Appellant offers us no plausible explanation why Amy
de Guzman cried rape against him. We believe she did so in order to bring out the truth and to
q What happen[ed] next Ms. Witness?
obtain justice.

a Then after turning louder the volume of the karaoke to

Appellant's contention that the absence of genital and other injuries on Amy's body proves his
down my voice, he took me to the kitchen.
innocence is unacceptable. Time and again, we have ruled that hymenal laceration is not an
element of rape. 2 The victim need not sustain genital injuries, for even the slightest penetration
of the labia by the male organ is equivalent to consummated rape. 24 COURT:

Besides, the examining physician satisfactorily explained the absence of lacerations on private q How [were] you taken to the kitchen?
complainant's genitalia: 25
"Paano ka dinala sa kusina?"
. . . during the examination I found out that [the victim's] hymen is that of
elastic type and so it is disten[s]ible and it could accommodate the penis
without producing any genital injuries. a Sakal-sakal po niya ako.

She elucidated that "[l]aceration only occur[s] on non-elastic hymen because non-elastic hymen
cannot accommodate the size of the penis without producing injury but hers is that of the elastic
type, like rubber band that could stretch and turn back into its proper size." 26
Second Issue:
xxx xxx xxx
a . . . and once in the kitchen he made me lay my back
against the stairs and told me to take[ ]off my pants.
Due to fright I did as told and the knife was then poked
at my stomach.

Sufficiency of Prosecution Evidence

q You said you removed . . . your pants, where [sic] you
wearing your panty at that time?
Time-tested is the guiding principle that when a victim cries rape, she says in effect all that is
necessary to show that the crime was inflicted on her; and so long as her testimony meets the
test of credibility, the accused may be convicted on the basis thereof.  27 We have no reason in a Yes, Sir. I was wearing one.
the instant case to deviate from this settled jurisprudence.
q What happened to that panty?
Rape is committed by having carnal knowledge of a woman under any of the following
instances: (1) force or intimidation is used, (2) the woman is deprived of reason or otherwise a He told me to take off my pants, in doing so I took off
unconscious, or (3) she is under twelve years of age. 28 We find the necessary elements of rape completely together with my panty.
duly established by Private Complainant Amy de Guzman when she candidly testified thus: 29
q Then, what happened next?
 a And once [I laid] down on the floor, he tried . . . to xxx xxx xxx
make me spread[-]eagle my legs and in that process he
knelt between my legs then took off his pants.
q [W]here did you get that jewelry box containing rings?

q And after that, what happen[ed] next after accused

a [I]nside the locker or aparador sir.
removed his pants . . .?

q [A]fter having taken all these jewelries and clothes

a Then after taking off his pants, he lay atop me and I
you placed them all in a blue bag and left the place?
felt he was forcing his penis in and [while] in that
process the knife was still poked at my left neck.
a [T]he jewelry box was placed inside my pocket. I did
not place in the blue bag sir.
q When he inserted his penis into your private parts,
what did you feel?
q [Y]ou mentioned five rings, Alba wrist watch owned by
rape victim [A]my de [G]uzman, you also mentioned
a Pain. (Masakit po).
other jewelries, what other jewelries aside from the
jewelry that you took in the house of the couple Gerry
q After inserting his penis into your private parts, what [and Ana] Bautista?
did he do?
[A]tty. [C]risostomo
a He kept on pumping.
[O]bjection he did not mention other jewelries. He
As noted earlier, the trial judge, who was able to observe firsthand the conduct and demeanor of specified one bracelet and one wrist watch.
the witnesses while testifying, perceived Amy to be candid, straightforward, spontaneous and
frank. Said witness was also found to have been consistent and unwavering despite the rigid
Court
cross-examination of the defense counsel. We note from the transcript of stenographic notes
that the judge herself had posed additional clarificatory questions upon Amy. 30 Throughout her
testimony, she indeed remained consistent as well as convincing. [W]itness may answer.

Of long-standing is the rule that findings of trial courts, especially on the credibility of witnesses, Witness
are entitled to great weight and accorded the highest respect by the reviewing courts, unless
certain facts of substance and value were overlooked or misappreciated such as would alter the
a [T]here were sir.
conviction of the appellant. 31 Trial judges are in a better position to assess the behavior of
witnesses and to detect whether they are telling the truth or not because they could directly
observe them in court. 32 The reviewing magistrate, on the other hand, has only the cold and Fiscal
impersonal records of the proceedings to rely upon.
q [W]hat are they?
With respect to the robbery, its elements are: (1) the subject is personal property belonging to
another; (2) there is unlawful taking of that property, (3) the taking is with the intent to gain, and
(4) there is violence against or intimidation of any person or use of force upon things.  3 There is Witness
no question on the unlawful taking of valuables belonging to Amy and her employer, Ana
Marinay. Appellant openly admitted in court the unlawful asportation, thus: a [C]lothes and a hair blower because I was in a
hurry. 36
q [W]ere you able to get some valuables from the room
of [the] Bautista 34 couple? During his arrest, the following stolen valuables were found in his bag: P5,000 cash, two
bracelets, two rings and a pair of earrings, which Ana Marinay identified as belonging to her; and
a [Y]es sir. one wristwatch and a bracelet belonging to Amy de Guzman. 37 Unrebutted is the presumption
that a person in possession of stolen personal effects is considered the author of the crime.

q [W]hat are these valuables?

Third Issue:

a I remember the jewelry box containing jewelry,

clothes and other valuables [sic] things sir. 35 Crime(s) Committed
We do not, however, agree with the trial court that appellant is guilty of the special complex
crime of robbery with rape. This felony contemplates a situation where the original intent of the
accused was to take, with intent to gain, personal property belonging to another; and rape is
committed on the occasion thereof or as an accompanying crime. 38
Such factual circumstance does not obtain here. As related by Private Complainant Amy de
Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at
the left side of her neck, pulled her towards the kitchen where he forced her to undress, and
gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to
proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her
alive. At this point, appellant conceived the idea of robbery because, before they could reach the
upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness;
then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head,
first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then
proceeded upstairs where he took as well the jewelry box containing other valuables belonging
to his victim's employer.
Under these circumstances, appellant cannot be convicted of the special complex crime of
robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped
Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16,000, he
committed two separate offenses — rape with the use of a deadly weapon and simple robbery
with force and intimidation against persons.
Appellant may well be convicted of the separate offenses of rape and robbery notwithstanding
the fact that the offense charged in the Information is only "Robbery with Rape." In a similar
case, People v. Barrientos, 39 this Court held:
. . . Controlling in an Information should not be the title of the complaint, nor
the designation of the offense charged or the particular law or part thereof
allegedly violated, these being, by and large, mere conclusions of law made
by the prosecutor, but the description of the crime charged and the
particular facts therein recited. Neither is it the technical name given to the
offense by the prosecutor, more than the allegations made by him, that
should predominate in determining the true character of the crime. There
should also be no problem in convicting an accused of two or more crimes
erroneously charged in one information or complaint, but later proven to be
independent crimes, as if they were made the subject of separate
complaints or informations.
In the case at bar, we find the Information filed against appellant to have sufficiently alleged all
the elements necessary to convict him of the two separate crimes of rape and robbery. Needless
to state, appellant failed, before his arraignment, to move for the quashal of the Information
which appeared to charge more than one offense. He has thereby waived any objection and
may thus be found guilty of as many offenses as those charged in the Information and proven
during the trial. 40
Fourth Issue:
Dwelling as an
Aggravating Circumstance
Dwelling aggravates a felony when the crime was committed in the residence of the offended
party and the latter has not given any provocation. 41 It is considered an aggravating
circumstance primarily because of the sanctity of privacy that the law accords to human
abode. 42 As one commentator puts it, one's dwelling place is a sanctuary worthy of respect;
thus, one who slanders another in the latter's house is more severely punished than one who
offends him elsewhere. 4 According to Cuello Calon, the commission of the crime in another's
dwelling shows worse perversity and produces graver alarm. 44
In the case at bar, the building where the two offenses were committed was not entirely for
dwelling purposes. The evidence shows that it consisted of two floors: the ground floor, which
was being operated as a video rental shop, and the upper floor, which was used as a residence.
It was in the video rental shop where the rape was committed. True, the victim was dragged to
the kitchen and toilet but these two sections were adjacent to and formed parts of the store.
Being a commercial shop that caters to the public, the video rental outlet was open to the public.
As such, it is not attributed the sanctity of privacy that jurisprudence accords to residential
abodes. Hence, dwelling cannot be appreciated as an aggravating circumstance in the crime of
rape.
Proper Penalties
Under Article 335, paragraph 3, of the Revised Penal Code, as amended, "[w]henever the crime
of rape is committed with the use of a deadly weapon . . . the penalty shall be  reclusion
perpetua to death." Under Article 63 of the same Code, reclusion perpetua is the appropriate
penalty imposable upon accused-appellant for the crime of rape, inasmuch as no aggravating
circumstance was proven. Pursuant to current jurisprudence, the award of P50,000 as
indemnity ex delicto is mandatory upon the finding of the fact of rape. 45 Moral damages may
additionally be awarded to the victim in such amount as the Court deems just, without the need
of pleading or proof of the basis thereof. 46 In rape cases, it is recognized that the victim's moral
injury is concomitant with and necessarily results from the odiousness of the crime to warrant
the grant of moral 
damages. 47 In the instant case, we deem it appropriate to grant Amy de Guzman P30,000 as
moral damages. However, since no aggravating circumstance attended the rape, no exemplary
damages may be awarded. 48
For the crime of robbery committed under the circumstances of this case, the Code provides the
penalty of prision correccional in its maximum period to prision mayor in its medium
period. 49 Further, the appellant is also entitled to the benefits of the Indeterminate Sentence
Law. For the actual damages incurred by Amy de Guzman in connection with her physical
injuries, the lower court awarded P2,687.65, based on receipts submitted by her. A
recomputation of the receipts, however, reveals a total of only P2,487.65. We, therefore, reduce
the award accordingly. The trial court also ordered appellant "to restore to the victim her gold
ring of undetermined amount," which was supposedly unrecovered. Upon an examination of the
records, we note that the Information alleges the robbery of the following items: P5,000 cash,
three (3) bracelets, two rings, one pair of earrings and one (1) Alba wristwatch. Except for the
cash money, which has already been returned to Ana Marinay by the police, the other items
were offered as evidence 50 and submitted to the custody of the trial court. Upon Motion 51 of Ana
Marinay and Amy de Guzman, the release to them of these items was ordered by this Court via
a Resolution issued on December 7, 1999. The stolen items are therefore all accounted for.
Thus, we find no sufficient basis for the trial court's order for the appellant to return a "gold ring
of undetermined amount."
In robbery and other common crimes, the grant of moral damages is not automatic, unlike in
rape cases. The rule that a claim for moral damages must be supported by proof still stands. It
must be anchored on proof showing that the claimant experienced moral suffering, mental
anguish, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation or similar injury. 52 The private complainants, however, did not present any evidence
of their moral sufferings as a result of the robbery. Thus, there is no basis for the grant of moral
damages in connection with the robbery.
WHEREFORE, the assailed Decision is hereby MODIFIED. Accused-Appellant Alexander Taño Accused-appellants Lutao and Medera pleaded not guilty. Accused Bating Naza, John Doe, and
y Caballero is found guilty of two separate offenses: rape and robbery. For the crime of rape, Peter Doe remained at large.
appellant is hereby SENTENCED to reclusion perpetua and to pay Private Complainant Amy de
Guzman P50,000 as indemnity ex delicto and P30,000 as moral damages. For the crime of
At the pre-trial, the parties agreed that the accused-appellants on trial are Orlando Lutao y
robbery, appellant is sentenced to an indeterminate penalty of two (2) years and four (4) months
Lobos and Julio Medera y Turcido, both members of the CAFGU under the command of Lt.
of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum; and to
Arismindo Dayaon of the Philippine Army and stationed in Barangay Malobago, Municipality of
pay De Guzman P2,487.65 as actual damages.
San Rogue, Northern Samar.

PEOPLE VS. LUTAO

At the trial, the evidence of the prosecution was given by witnesses ARTURO
SIERVO, 4 LOURDES SIERVO, 5 and DR. MELODIA NERIDA. 6
Bad elements of the Civilian Armed Forces and Geographic Unit (CAFGU) again take
centerstage in the case at bar. ORLANDO LUTAO and JULIO MEDERA, members of the
The spouses Arturo and Lourdes Siervo lived in a one-room house with a floor area of two and a
CAFGU, were convicted of Robbery in Band with Multiple Rape  1 in a Decision 2 of the Regional
half (2 1/2) meters by three (3) meters. Their house is located in an isolated farm and about six
Trial Court of Catarman; Northern Samar. They were sentenced to suffer the penalty
(6) kilometers by feeder road from the poblacion of Barangay Malobago, San Roque, Northern
of reclusion perpetua, and to indemnify the amount of P30,000.00 to Lourdes Siervo or a total of
Samar. On December 29, 1991, they and their four (4) children, ages two (2) to eight (8), went to
P60,000.00 and to pay spouses Siervo jointly and severally the amount of P4,060.00
bed at 7:00 p.m. They slept on the bamboo flooring with Arturo near the doorway. A sack draped
corresponding to the stolen money plus the costs of the suit. They insist on their alibi in their
at their door served as its shutter.
appeal to this Court. We reject their pretended innocence.

At about 10:00 p.m., Arturo was awakened by a voice yelling, "Toring, Toring. Where is the trail
The Amended Information against the five (5) accused — Orlando Lutao, Julio Medera, Bating
going to Inanasan? 7 He did not hear the question well and he asked, "What is that?" The man
Naza, John Doe, and Peter Doe reads:
repeated the question: "Where is the trail going to Inanasan, we are lost in our way."  8 Arturo
recognized the voice of Julio Medera, who used to be a buyer of their chicken.
That on or about the 29th day of December, 1991, at around 10:00 o'clock
in the evening, in Sitio Camarino, Barangay Malobago, Municipality of San
A "pa-agahan" (kerosene lamp) hanged at the corner of their house.  9 With its light, Arturo saw
Rogue, Province of Northern Samar, Philippines and within the jurisdiction
Julio Medera, Orlando Lutao, Bating Naza, and their two (2) other companions who were
of this Honorable Court, the above-named accused, armed with M-14 and
unknown to him. 10 Medera and Lutao were armed with an M-14 rifle and M-1 garand,
M-1 (Garand) riffles, conspiring with, and confederating together with two (2)
respectively. They wore military uniforms. Arturo groped his way to the doorway and asked them
persons (John Doe and Peter Doe) whose true names, identities and
where they came from. Medera responded by dragging him downstairs. At the ground, Medera
present whereabouts are still unknown, and mutually, unlawfully and
poked his gun at Arturo and ordered him to kneel while the others stood guard.
feloniously, with intent of gain and by means of force, violence and
intimidation take, rob and carry with them a cash money in the amount of
FOUR THOUSAND SIXTY (P4,060.00) PESOS, Philippine Currency, Lutao then barged into the house, shook the left shoulder of Lourdes with his gun, and
belonging to spouses Arturo M. Siervo and Lourdes Siervo, against their will announced a "hold-up." He demanded money from Lourdes. Lourdes begged him to spare their
and this was committed inside their residence in the above-mentioned money which was earmarked for the medical treatment of their child. Lutao answered her plea
place, to the damage and prejudice of said owners in the aforesaid sum of by hitting her chest with the butt of his gun.  11 Stricken with fright, Lourdes yielded the leather
FOUR THOUSAND SIXTY (P4,060.00) PESOS, Philippine Currency; that in wallet under her pillow containing four thousand sixty pesos (P4,060.00) realized from the sale
the commission of the said offense the above named accused, Orlando of their copra and pig. She handed it to Lutao who threw the coins on the floor.
Lutao, Julio Medera, Bating Naza, John Doe, and Peter Doe, with lewd
design, conspiring, confederating together and mutually helping one another
Then, Lutao's lust was aroused. He pulled down the skirt and panty of Lourdes and ordered her
did then and there wilfully, unlawfully and feloniously by means of force,
to lie down. Lourdes begged not to be abused because she was menstruating. Lutao ignored
violence and intimidation took turns in lying down with and having carnal
her pleas and poked a gun at her.  12 He shed off his fatigue jacket, maong pants, and green brief
knowledge of Lourdes Siervo against her will and consent while accused
and forced his lust upon her. Lourdes' resistance was futile. Medera, Naza, and their two other
Julio Medera stood guard and threatened with the use of his M-14 rifle the
companions joined the sexual orgy. They raped Lourdes in succession. Lourdes' youngest child
husband of Lourdes Siervo and thereafter watched his companions raped
awoke and cried unaware of his parents' harrowing experience.  13
Lourdes Siervo.

Arturo, was a meter away when Lourdes was violated by the accused. Throughout the
With the aggravating circumstance that accused Orlando Lutao had been
unfortunate ordeal of his wife, he was furious but helpless. The accused guarded him.
sentenced by the Court of Appeals on January 22, 1987 to suffer
imprisonment of 8 years and one day to 14 years, 8 months and one day in
Criminal Case No. 323 for Murder. Their lust satisfied, the accused set to flee. But before fleeing, Medera pointed his gun at Arturo
and ordered him to run. Arturo rushed towards the bushes about fifteen (15)  brazas away from
his house. The malefactors then fled to Inanasan.
CONTRARY TO LAW. 3

Lourdes who passed out regained consciousness. Her abusers were no longer around and so
was her husband. She cried and her weeping awakened her other children. Still shaking with
fear, she and her four (4) children walked and sought immediate refuge at the house of Fausto
Acero. The house of Acero is ten (10) kilometers away from her house.  14
Daylight broke. Arturo came out from the grasses and searched for his family. They were united
at Acero's house. It was then that they revealed to Acero their ordeal.
Initially, the spouses hesitated to report the incident to the police authorities for fear of reprisal
from Lutao and Medera who were CAFGU members. They finally mustered courage and
reported the crime to the Mondragon Police Station on December 31, 1991.  15 They named
Orlando Lutao, Julio Medera, and Bating Naza as the culprits. Two (2) days thereafter or on
January 2, 1992, they retold their story to the San Roque Philippine National Police
Headquarters, 16 Petrified by the incident, the Siervo family abandoned their house and farm in
Barangay Malobago and lived with Arturo's mother in Barangay Bantayan. Their physical and
emotional disturbance were beyond doubt.
Dr. Melodia Nerida, the Medical Officer of Northern Samar General Hospital, certified that there
was no trace of irritation, sperm cells, and sexual coition in the genitalia of Lourdes. She,
however, opined that the victim's menstrual flow could have washed-out the semen.  17 She
added that it was difficult to detect the sexual assault since the victim's organ already
experienced four (4) pregnancies and childbirth.
Accused-appellants Medera and Lutao denied their involvement in the crime and anchored their
defense on alibi.
Medera testified that on December 29, 1991, Lt. Arismindo Dayaon ordered them on "red alert"
because of an imminent raid by the New People's Army (NPA).  18 His tour of duty to guard the
19th IB Detachment Camp, Charlie Company, Philippine Army was from 10:00 to 12:00 p.m. He
was relieved by Lutao at twelve midnight.
Lutao corroborated Medera's testimony. He testified that on December 29, 1991, he guarded the
camp from 12:00 p.m. till 2:00 a.m. He said he never left the barracks while on duty.  19
Lt. Arismindo Dayaon, Cpl. Manuelito Anata, and Cpl. Celso Mabascog likewise corroborated
the alibi of accused-appellants. Lt. Dayaon confirmed that he ordered accused-appellants to
guard the barracks on December 29, 1991. Cpl. Anata and Cpl. Mabascog testified that they
supervised the assignments of the accused-appellants on the said date. 20
The trial court on June 30, 1992 convicted the accused-appellants of the crime of Robbery in
Band with Multiple Rape.
In this appeal, accused-appellants assail the Decision of the trial court as follows:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING MORE WEIGHT AND
CREDENCE TO THE EVIDENCE FOR THE PROSECUTION AND IN
DISREGARDING THE EVIDENCE FOR THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
OF ROBBERY IN BAND WITH RAPE.
We affirm the conviction with modification.
We shall first rule on accused-appellants' argument that they were not identified in court by the
spouses Siervo, and hence, should be acquitted. They rely on People v. Hatton, 21 where we
held that pre-trial identification is not sufficient.
We reject accused-appellants' argument. The question of whether accused-appellants are the
persons actually accused in the case at bar is a non-issue. The issue was settled during the pre-
trial of the case where the parties agreed that the accused-appellants on trial are Orlando Lutao
y Lobos and Julio Medera y Turcido. 22 They were even described as members of the CAFGU
under the command of Lt. Arismindo Dayaon of the Philippine Army and stationed in Barangay
Malobago, Municipality of San Rogue, Northern Samar. By their admission that they are the
Orlando Lutao and the Julio Medera accused of committing the crime at bar, the prosecution
witnesses were relieved of the burden of making an in court identification of accused-appellants
as the malefactors. Throughout the proceedings, they never claimed that their admission was an
error. Indeed, they did not claim as defense that they are not the persons accused of the crime
at bar. Their defense is alibi — that they were at another place when the crime was committed.
Quite clearly, accused-appellants cannot lean on the Hatton case. In Hatton, the accused did
not admit he was the Hatton charged in the Information. During the trial, the witnesses for the
prosecution failed to identify him. The prosecution tried to remedy the lapse by introducing the
identification made by the victim of the accused in a police line-up, an out of court identification.
The Court found this identification as infirmed as it was suggested by the police. It acquitted the
accused, ruling: "The failure of the prosecution witnesses to positively identify the assailant in
court is fatal to the prosecution's cause. Pre-trial identification is not sufficient." Hatton is, thus,
distinguishable for in the case at bar, accused-appellants judicially admitted they are the
persons charged with the offense.
It is also inaccurate to contend that accused-appellant, Julio Medera was not identified in court.
Lourdes Siervo positively identified him in the course of her testimony. We quote the relevant
part of her direct testimony, viz.:
xxx xxx xxx
Q If that Julio is in court, will you point to us where he
is?
A (Witness pointing to a person with blue t-shirt and
when asked his name, answered Julio Medera). 23
Next, accused-appellants urge that the spouses Siervo should not be believed because of
inconsistencies in their testimonies, viz.:
xxx xxx xxx
(1) Lourdes Siervo, during her direct testimony, . . . point(ed) 
to . . . Julio Medera as the one who woke her up and demanded money. . . .
(But) during her cross examination . . . she easily changed her answer from
 Julio Medera to Orlando Lutao . . . to conform with what she has declared in
her affidavit.
xxx xxx xxx
(2) The spouses Siervo reported (to the Mondragon police) that they were
robbed and Lourdes Siervo was raped by . . . Pating Naza, Orling
Lutao, Jerry Medera, and two unidentified companions . . . (But) on January
2, 1992, the couple reported the incident before the San Roque (police) . . .
that the two (2) of the five (5) malefactors were Orlando  The conduct of the Siervo spouses subsequent to the crime fortified their credibility. They
Lutao . . . and Julio Medera.
xxx xxx xxx
(3) Arturo Siervo testified that . . . he ran to the bushes . . . because he was
told by the five (robbers) to run. . . . Whereas in his affidavit . . . he stated
that he ran to the bushes to hide. 24
We hold that these inconsistencies are not malicious marks of falsehood. It is true that in her
direct examination, Lourdes pointed to Medera as the one who announced the hold-up. On
cross-examination, she changed her testimony and affirmed the content of her prior affidavit that
it was Lutao who declared the hold-up. On questioning by the trial judge, Lourdes admitted her
mistake, thus:
xxx xxx xxx
Q When you asserted that it was Julio Medera who
awakened you by shaking you by your shoulder it was
by mistake because it was Orlando Lutao who did that?
A Yes, sir. 25
Lourdes was candid in admitting her mistake. It was an honest mistake. One honest
mistake in the course of a long testimony cannot dilute her credibility. To be sure,
Arturo corroborated the testimony of Lourdes that it was Lutao who roused his wife
from sleep, announced the hold-up, and carted the money away.
There was also an initial confusion on whether the Medera involved in the case at bar was Jerry
or Julio. We agree with the trial court's rationalization as it deflated the significance in the
discrepancy of the names of Jerry Medera and Julio Medera, viz.:
xxx xxx xxx
The initial identification by name Jerry Medera before the police in
Mondragon given only by Arturo Siervo as one of the criminals, it being
shown that Julio Medera has a brother by said name and who is also a
member of the CAFGU in San Roque (Exhs. "5" and "6" in relation to 
Exh. "9") detracts nothing from Lourdes Siervo's spontaneous court room
identification when she pointed out to the person of Julio Medera upon his
name being mentioned in the course of an answer while "Pating" Naza,
instead of Bating Naza, as written in the police blotter (Exh. "9") is so
innocuous an error that it should be attributable to inaccuracy of the hearing
and/or pronunciation. 26
Accused-appellants also claim that it was unnatural for Arturo to run to the bushes and abandon
his wife who has just been raped. We do not agree. Arturo was under the gun. It would have
been foolhardy for him to disobey the order for him to run. He would have been shot dead if he
did not. Even his family would have been further endangered. He did not have any rational
choice except to run.
promptly revealed their misfortune to Acero. They gathered their guts and reported the incident
not only to the Mondragon police authorities but also to the San Roque police. Lourdes
submitted herself to physical examination. These were all spontaneous actions. Indeed, it was
far fetched for this rural couple, living in an isolated, unprotected house to falsely impute an
atrocious crime against accused-appellants who were influential CAFGU members assigned in
their barangay. They would not put their lives on the line except for a legitimate grievance.
In checkered contrast, Medera self-destructed when he testified. He unabashedly admitted in
court that Lt.Dayaon did not order them on "red alert" from December 26, 1991 to January 1,
1992 for the perceived NPA raid.27 He was with the other soldiers patrolling Barangay
Malobago. 28
Nor does the testimony of Cpl. Mabascog inspire credence. He testified that he remembered the
December 29, 1991 assignments of accused-appellants because he reported that day after his
Christmas vacation. His assertion was negated by Lt. Dayaon's testimony that when a camp is
on "red alert," it meant maximum vigilance and all leaves and furloughs are cancelled. 29
In addition, we cannot give full faith and credit to Exhibit "4" and Exhibit "5," the duty roster and
guard detail, respectively, presented by accused-appellants. They were handwritten on papers
when they should have been properly recorded in a logbook. The accused-appellants failed to
explain this irregularity which was vital to the truth of their alibi.
Easy to concoct, alibi is a weak defense. It cannot prevail over the positive identification of an
accused. It cannot succeed when there is no showing that it is not physically impossible for the
accused to be at the crime scene at the time of its commission.  30
At the trial, accused-appellants admitted that they patrolled Barangay Malobago when the crime
happened on December 29, 1991. Their camp can be negotiated in ten (10) to fifteen (15)
minutes walk to the locus criminis. Since accused-appellants were in Barangay Malobago from
10:00 p.m. to 2:00 a.m., it was not physically impossible for them to be at the Siervo's house and
commit the crime.
The probability that the Siervo spouses erred in identifying the accused-appellants is nil.
Accused-appellants were not strangers to the spouses. They often patrolled Barangay
Malobago. Medera was the couple's barriomate and a regular buyer of their chicken. There was
also a kerosene lamp which illuminated the locus delicti. Accused-appellants wore no mask to
hide their identity. Loose alibi must yield to and cannot prevail over the positive identification
made by the spouses. 31
The trial court, however, erred in denominating the crime committed by accused-appellants as
Robbery in Band with Multiple Rape. In People v. Precioso, 32 we held that there is no such
composite crime of robbery in band with multiple rape. The crime is robbery with rape, with band
as a mere aggravating circumstance. It is penalized under Article 294 (2) of the Revised Penal
Code, as amended by Republic Act No. 7659 imposing the death penalty. Since the crime
charged was committed on December 29, 1991 prior to the effectivity of R.A. No. 7659 on
December 31, 1993, the said law cannot be applied retroactively and the death penalty cannot
be given to accused-appellants. The trial court correctly imposed the penalty of reclusion
perpetua.
IN VIEW HEREOF, the appealed Decision dated June 30, 1992 is AFFIRMED with the
MODIFICATION that accused-appellants are convicted of Robbery with Rape and ordered to
pay in solidum Lourdes Siervo in the amount of fifty thousand pesos (P50,000.00) for moral
damages and Arturo and Lourdes Siervo four thousand sixty pesos (P4,060.00) corresponding
to the stolen money. With costs against accused-appellants.
GUNGON
The antecedent facts as culled from the records are as follows:
On January 12, 1994, around 3:00 p.m., Agnes Guirindola (Agnes), while cruising along Panay
Avenue, Quezon City, on board a red 1993 model Nissan Sentra sedan with plate number TKR-
837, was suddenly flagged down by a man wearing a PNP reflectorized vest. The man signaled
her to make a U-turn. Agnes complied and made the U-turn. The man walked in front of her car
and proceeded to the right side of the car.6 Agnes, later on, identified the man in open court as
appellant, Venancio Roxas (Roxas).
Agnes opened the right front window of the car and asked Roxas, who had positioned himself at
the front passenger side, "Ano ang problema?" Roxas replied, "Miss, one way street po ito."
Agnes explained to the man that she usually passed by the same street and it was only that day
that she had been caught. Roxas told her that the street had been made a one-way street
because a girl figured in an accident in the same street two days ago. 7
Roxas then asked for Agnes' driver’s license. After taking the driver’s license, Roxas handed her
a piece of paper which she was asked to sign. Agnes noticed that it was not the usual traffic
citation ticket but, nevertheless, she pretended to sign the same by making a check thereon. 8
When Agnes handed back the paper to Roxas, the latter asked her to open the door of the car
so that he could show her the one-way sign and the other traffic aide at the corner of the street.
Agnes let Roxas enter the car. Roxas then instructed Agnes to drive to the corner of the street,
and upon reaching the corner, Roxas pointed to her the one-way sign and looked for the traffic
aide he had told Agnes about. The traffic aide was not there. Agnes asked Roxas where she
could drop him. Roxas told Agnes to make a left turn from the corner of the street and that he
will alight somewhere in Mother Ignacia. Agnes obliged and made a left turn and stopped the
car. Thinking that Roxas was waiting for a bribe, Agnes took out her wallet, pulled a P50.00 bill
and gave it to Roxas. After receiving the money, Roxas returned to Agnes her driver’s license. 9
Upon returning the driver’s license to Agnes, Roxas immediately switched off the engine of the
car and poked a gun at her saying "Miss, kailangan ko ang kotse mo." Agnes, terrified and
shocked by Roxas’ actions, cried and pleaded with him to let her go and just take the car. Roxas
continued to poke a gun at her, unmindful of what Agnes was telling him.10
After a while, Agnes heard a knock from outside the car. Roxas opened the rear door and then
someone boarded the car, occupying the back seat. The second passenger immediately
reclined the driver’s seat and pulled Agnes towards the back seat. Agnes identified this man as
Roberto Gungon (Gungon). Subsequently, Roxas took the driver’s seat and drove the car while
Gungon held Agnes on the shoulder with one hand, and her leg with the other. 11
Agnes then heard Gungon say: "Boss, dalhin natin sya sa Philcoa." After crossing Mother
Ignacia Street, Gungon got his beeper and told Roxas: "Boss, dalhin na natin siya sa dati, doon
na natin siya i-s." Agnes became more frightened as she understood "s" to mean "salvage," a
lingo for summary execution.12
Along the way, Roxas stopped the car and went to a sari-sari store. Gungon was left behind,
holding Agnes, and would tighten his grip every time she made a slight move and sometimes
would poke a gun at her. Upon returning to the car, Roxas offered Agnes a bottle of soft drink
and Skyflakes biscuit. Agnes refused so Roxas handed the softdrink to Gungon and told him:
"Mamaya painom mo sa kanya at pakainin mo siya." Gungon took the bottle of softdrink and
tried to force Agnes to drink the contents thereof. Agnes refused because she saw tablets
floating inside the bottle. Roxas resumed driving, while Gungon held Agnes. 13
Agnes testified that she planned to escape, but could not make a single move because every
time she made a slight move, Gungon would poke the gun at her. The windows of the car were
tinted and remained closed.14
Around 5:00 p.m., Agnes noticed that they were already at the South Superhighway. 15
Along the superhighway, Roxas stopped the car in order to urinate. Gungon guarded Agnes by
holding her. When Roxas returned, Gungon alighted to relieve himself too. While Gungon was
out of the car, Roxas sat at the driver’s seat facing Agnes and poked his gun at her. Shortly
thereafter, Gungon came back to the car and Roxas resumed driving. When Agnes took the
prayer leaflet from her wallet, Gungon looked at her wallet and saw the picture of her sister.
When asked if she was the one in the picture, Agnes told Gungon that it was her sister. Out of
the blue, Gungon also took his wallet and showed Agnes three (3) pictures which, according to
him, were the pictures of his niece, her girlfriend and that of Roxas and a lady with a little child.
After showing the same to Agnes, Gungon returned the said pictures to his wallet. 16 Agnes
planned to escape at that time but the car was running at a speed of 80 to 100 kilometers per
hour. Agnes just continued to pray.17
At this point, Gungon again offered the softdrink to Agnes. When she refused, Gungon became
mad and tightened his hold on Agnes, forcing her to drink it. Sensing that Gungon was already
furious, Agnes took the softdrink. After Agnes drank it, Roxas told Gungon, "Ipainom mo pa
itong dalawang tablets dahil malaki sya, mahina iyong dalawa para sa kanya." Gungon took the
tablets from Roxas and forced Agnes to swallow the same. Out of fear, Agnes took the tablets,
but did not swallow them. She placed the tablets under her tongue. When Roxas and Gungon
were not looking, she took her handkerchief and spat out the tablets into the handkerchief. 18
Afterwards, Agnes told Roxas and Gungon that she was hungry and wanted to eat a
McDonald’s sandwich. Gungon replied that they were in the province and that there was no
McDonald’s there. Roxas told Agnes that they will just drop by a restaurant to buy something to
eat. Roxas then stopped by a bakery and alighted from the car, while Gungon held Agnes. It
was at this point that Agnes noticed the signboard of the bakery which read something like Sto.
Tomas or San Jose, Batangas. After a while, Roxas came back with a "taisan" cake and offered
it to Agnes which she refused. At that instance, Agnes felt dizzy and fell asleep. 19
When Agnes woke up, she found herself lying at the back seat with her legs on the lap of
Gungon. The car was at a standstill. She noticed from the car’s clock on the dashboard that it
was about 9:30 or 10:00 p.m. She also found out that her jewelries consisting of bracelets, pair
of earrings, necklace and a watch worth around P30,000.00 toP40,000.00, as well as her pair of
shoes, were already gone. When she asked Gungon about them, the latter told her that they
were just keeping the same for her. Agnes also lost her wallet containing a check in the amount
ofP3,000.00 and cash in the amount of P1,000.00.20
Agnes also noticed that there was already a third man sitting in front of the car beside Roxas Agnes further testified that the name of appellant Venancio Roxas was supplied by the NBI, but
who was still driving. She then asked them if she could relieve herself. Gungon asked Roxas if she was very sure that he was the person who fatally shot her. She positively identified Roxas
Agnes would be allowed to relieve herself to which Roxas answered in the affirmative. Agnes on January 12, 1994 during a police line-up at the NBI as the perpetrator other than Gungon, of
fixed her hair and then asked Gungon for her shoes. Gungon put the shoes on her feet. Roxas the crimes charged. She told the NBI agents that the person in the picture was the one who had
alighted from the car and opened the rear door. Gungon alighted first from the car followed by flagged her down and shot her on January 12, 1994.
Agnes. Gungon then led Agnes to a nearby grassy area and told her, "O, dyan ka na lang
umihi." After Agnes relieved herself, and as she was about to get up and return to the car, she
For the defense, appellant denied committing the crimes charged against him. He claimed that it
saw white sparks at her right side and then she fell down. When she opened her eyes, she saw
was impossible for him to be at the place of incident on January 12, 1994. He narrated that on
Roxas walking back towards the car with a gun in his hand. She did not see Gungon at that
that same day, at around 6:00 to 7:00 p.m., he and a certain Tranquilino Mangiliman and two
particular time. Then she lost consciousness. 21
others were installing an antenna on the roof of his house. He added that he never left his house
that evening. Both Mangiliman and his wife, Hermogena Roxas, testified that on January 12,
When Agnes regained consciousness, she was all alone. Roxas, Gungon and the third man, as 1004, Roxas was in his house at Feria Compound, Commonwealth Town Homes, Quezon City.
well as the car, were no longer there. It was very dark. She followed a "sparkling light" that led
her to a small house. Upon reaching the house, she opened the door and saw two (2) children
Subsequently, in a Decision30 dated September 5, 2002, the court a quo, found Roxas guilty of
and a teenager singing. She asked for their help but upon seeing her, they ran away. She then
Kidnapping and Serious Illegal Detention with frustrated murder, carnapping and theft, the
saw a lady standing at the stairs of the house carrying a baby. Agnes asked for her help but the
dispositive portion of which reads:
lady went upstairs and locked herself inside the room. Agnes followed her and knocked at the
door of the room asking for help, but still the lady did not come out of the room. She then went
downstairs and lied down on the sofa. Only then did she notice that blood was profusely oozing WHEREFORE, judgment is hereby rendered in these cases finding accused Venancio Roxas y
from her face and there were "holes" in the left side of her neck and her right cheek. 22 Arguelles guilty beyond reasonable doubt:

After a while, Agnes heard a vehicle arrive and also heard voices saying: "May taong duguan sa In Criminal Case No. Q-94-54285 for Kidnapping and serious illegal detention with frustrated
loob ng bahay, tulungan natin siya!" Agnes was then carried to a Fiera motor vehicle and murder, and sentences him to suffer the maximum penalty of DEATH.
brought to the Batangas Regional Hospital, where she was treated for her wounds and given
first aid.23 Agnes sustained the following injuries:
In Criminal Case No. Q-94-54286, for Carnapping, and sentences him to suffer the
indeterminate penalty of imprisonment from 18 years, as minimum, to 25 years, as maximum;
Gunshot wound, POE, Zygomatic area (R), POX Sudmandibular area (L); Fx, zygomatic arch &
condylar area, (R) Sec to GSW; Submandibular Gland involvement with sinus tract. (Exhibit "A,"
In Criminal Case No. Q-94-54287, for the crime of Theft, and sentences him to suffer the
Medical Certificate dated February 1, 1994 signed by attending physician Dr. Lauro R. San
indeterminate penalty of imprisonment from 2 years, 4 months and 1 day of prision correccional,
Jose, Captain MC, Neurosurgery 4-A, p. 177, Volume III, Record)
as minimum, to 8 years, 8 months and 1 day of prision mayor, as maximum, plus 1 year for the
additional P10,000.00 in excess of P20,000.00 value of the property taken or a total of 9 years, 8
The following day, about 3:00 a.m. of January 13, 1994, the parents of Agnes and the rest of the months and 1 day, as maximum.
family arrived at the hospital. Her parents immediately arranged for her transfer to the V. Luna
General Hospital (now AFP Medical Center) in Quezon City, where she was treated further,
The accused shall be credited in full of his preventive imprisonment.
operated on and confined for forty-three (43) days. 24Agnes incurred actual damages amounting
to P36,161.83 for her hospitalization, surgical operation and medical treatment, and suffered
moral damages the amount of which she cannot readily quantify, as a result of the ordeal she Accused Roxas is also liable to pay the offended party Agnes Guirindola, moral and exemplary
underwent on that fateful day of January 12, 1994.25 damages in the amount of P1,000,000.00 and P500,000.00, respectively, actual damages in the
amount of P36,161.83, representing her hospitalization and related expenses, and P38,000.00
representing the value of the articles taken from her. Accused Roxas is likewise ordered to pay
Upon transfer of Agnes to the V. Luna General Hospital, her parents immediately reported the
Mrs. Elvira Guirindola the amount of P250,257.90.00, representing the cost of repair of the
incident to the National Bureau of Investigation (NBI) in Manila, which promptly conducted an
subject vehicle.
investigation. On January 17, 1994, some NBI agents visited her for the taking of the
cartographic sketches of Roxas and Gungon. On January 19, 1994, another group of NBI
agents went to the hospital and showed her 3 to 4 pictures of Gungon who was subsequently SO ORDERED.
arrested in Davao City. On February 1, 1994, Agnes positively identified Gungon at the NBI in a
police lineup consisting of 5 to 6 men. Likewise, Agnes was able to identify certain personal
effects recovered from Gungon such as her rosary beads, 26 jewelry purse,27 key chain with a key August 29, 2002, Quezon City.31
to the lock of her Nissan Sentra car,28and the check taken from her, which were all presented in
evidence in the trial of Gungon as well as in the trial of the instant case against Roxas. 29 Roxas moved for a reconsideration of the September 5, 2002 decision of the court a quo.
Likewise, noting the well-attended promulgation of the court a quo’s decision, Roxas also moved
In the meantime, the NBI conducted a manhunt for Roxas. On September 11, 1995, Roxas was for the inhibition of the Honorable Judge Demetrio Macapagal, Sr. He argued that the presence
arrested by elements of the NBI inside the municipal hall of Taysan, Batangas, where he was of then Justice Secretary Hernando Perez showed the court's predisposition to convict him of
working under the Office of the Mayor using the aliases "Joe Villamor" and "Marianito Villamor." the offenses charged. Roxas contended that he was robbed of his right to due process because
the Judge Demetrio Macapagal, Sr. had lost the cold neutrality of an impartial judge required of
him in trying and resolving cases.
In an Order32 dated October 8, 2002, the RTC denied appellant’s motions for inhibition and Appellant further argued that the RTC erred in finding him guilty of the crimes charged against
reconsideration. him.

Meanwhile, appellant's co-accused Roberto Gungon y Santiago was found guilty of the same
charges in a Decision33 dated March 19, 1998. Roxas was at-large during the trial and was
arrested only after the RTC rendered the judgment of conviction against Gungon. Thus, the
cases, as far as they concerned Roxas, was archived until he was eventually arrested on
September 11, 1995.
The records of this case were originally elevated to this Court for automatic review. Conformably
with our ruling inPeople v. Mateo,34 however, the case was referred to the Court of Appeals for
intermediate review.
In its Decision35 dated January 13, 2006, the appellate court affirmed in toto the decision of the
court a quo.
Thus, this appeal, raising the following arguments:
Time and again, we have ruled that the findings of the trial court on the credibility of witnesses
and their testimonies are entitled to the highest respect and will not be disturbed on appeal in
the absence of any clear showing that the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance which would have affected the result of
the case. The trial court is in a better position to decide the question of credibility, having seen
and heard the witnesses themselves and observed their behavior and manner of testifying. 38
We have painstakingly examined the records of the case, particularly the testimonies for the
prosecution and the defense. However, after much examination, we find no persuasive much
less compelling reason to depart from the findings of the trial court.
Agnes not only positively identified her abductors, she also graphically narrated what happened
on January 12, 1994. Actual restraint of the victim's liberty was evident in the instant case from
the moment Agnes was taken from Panay Avenue to a remote place in Batangas. Agnes
testified, thus:

I
Q - After Roberto Gungon pulled you towards the back seat, what happened?

WHETHER OR NOT THE COURT A QUO ERRED IN RENDERING IN THE ABOVE-TITLED

A - Venancio Roxas took the driver seat and started the car, sir. I mean, he took the
CASE DESPITE THE FACT THAT THE PRESIDING JUDGE OF THE COURT A QUO HAS
driver seat and started the car.
LOST THE COLD NEUTRALITY OF AN IMPARTIAL JUDGE, THEREBY VIOLATING THE
RIGHT OF THE ACCUSED-APPELLANT TO DUE PROCESS.
Q – What was Roberto Gungon doing after Venancio Roxas started the car?
II
A – He was holding me sir.
WHETHER OR NOT THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF THE OFFENSES OF (1) KIDNAPPING AND SERIOUS ILLEGAL DETENTION Q – How was he holding you?
WITH FRUSTRATED MURDER, (2) CARNAPPING, AND (3) THEFT.
A – One hand on my shoulder and the other one is (sic) on my leg, sir.
Roxas challenged the RTC judge’s neutrality as he invoked that he was deprived of his right to
due process because of the "unexplained presence" of the former Secretary of the Department
xxxx
of Justice, Hernando Perez, in court. He contended that the RTC was already predisposed to
convict him even before trial.
Q – What did Gungon do with the bottle?
We are unconvinced.
A – He still forced me but when I refused he just placed it down in the car, sir.
The Court finds no basis for appellant's allegation that he was deprived of due process of law
and that the trial conducted was far from impartial and fair. The imputation of bias and partiality Q – After that what happened?
is not supported by the record. The fact that the trial judge opted to believe the prosecution's
evidence rather than that of the defense is not a sign of bias.36
A – Roxas still drove and Gungon was still holding me, then after that we went to this
gasoline station to gas up, sir.
Even if the RTC had allowed the presence of then Secretary Hernando Perez and the media,
there is no sufficient basis to show that their presence or pervasive publicity unduly influenced
xxxx
the court's judgment. Before we could conclude that appellant was prejudiced by the presence of
the media and Secretary Perez, he must first show substantial proof, not merely cast suspicions.
There must be a showing that adverse publicity indeed influenced the court's decision. 37 We Q – Why were you not able to escape while you were seated and crying?
found none, in this case.
A – Because Gungon was holding me and everytime I just made a slight move, he
poked the gun at me, sir.39
xxxx
Q – While you were praying, do you know what Gungon and Roxas were doing at that
time?
xxxx
A – Yes, Roxas was driving and Gungon was still holding me and he asked Roxas if
he could relieve himself, sir.
xxxx
Q – After your car stopped, what happened?
A – He told Gungon that he'll take a leak (sic) first before Gungon so Roxas alighted
from the car and took a leak (sic), sir.
Q – How about Gungon, where was he?
A - He was seated beside me, he was still holding me, sir.
Q - After Roxas finished leaking (sic), do you know what did he do (sic), if any?
A- Yes, he went back to the car, he sat at the driver's seat, he faced in front of me
(sic), took the gun and poked it at me and then Gungon alighted from the car and he
was the next one who took a leak (sic), sir.
xxxx
Q - After Roxas alighted from the car, where were you at that time?
A - I was still sitting at the car, with Gungon, sir.
Q- What was Gungon doing at that time?
A- Yes, we were waiting for Roxas and he was holding my leg, sir. 40
xxxx
Q – Previously, you testified that Gungon was holding you and everytime you made a
slight movement he would grips (sic) you firmly and poke a gun at you. My question is
– for how long had Gungon been doing this?
A - Ever since he pulled me from the driver seat to the back seat up to the time when
we were cruising along South Superhighway, sir.
Q - Up to that while you were driving?
A – Yes, sir.
Q – When you reached Batangas, in the bakery, what was Gungon's (sic) doing to
you, if any?
A- He kept on holding me although from time to time and only when I made a slight
move, sir.41
Thus, based on the foregoing testimony of Agnes, the trial court did not err in convicting
appellant of the crime of kidnapping and serious illegal detention. Article 267 of the Revised
Penal Code defines the crime, thus:
Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death;
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority;
3. If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained, or if threats to kill him shall have been made;
4. If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by Sec. 8,
Republic Act No. 7659).42
The evidence likewise reveal, undoubtedly, the commission of frustrated murder as qualified by
the circumstances of treachery and evident premeditation. The medical findings show that had it
not been due to the timely and proper medical attention given to the victim, the gunshot wound
sustained by the victim would have been fatal.
Treachery exists when an offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to ensure its
execution, without risk to himself, arising from the defense which the offended party might make.
As narrated by Agnes, she could not have been aware that she would be attacked by appellant.
In the darkness of the night while she just finished relieving herself and still trying to get up, she
was shot by appellant in the head with a gun. There was no opportunity for her to defend herself,
since appellant, suddenly and without provocation, shot her as she was about to get up. The
essence of treachery is the unexpected and sudden attack on the victim which renders the latter
unable and unprepared to defend himself by reason of the suddenness and severity of the
attack. This criterion applies whether the attack is frontal or from behind. 43
Moreover, the requisites of evident premeditation was likewise duly established in this case, to A – Well, of course I was shocked and I asked them if they were going to rape me or
wit: (a) the time when the accused determined to commit the crime; (b) an act manifestly kill me or just leave me somewhere, I do not know, sir.
indicating that the accused has clung to his determination; and (c) a sufficient lapse of time
between such determination and execution to allow him to reflect upon the consequences of his
Q – After you uttered those words, do you know if Gungon answered?
act.44

A – Yes, sir, he told me that don’t give us ideas (sic).46

The prosecution's evidence particularly the testimony of Agnes demonstrated that Gungon and
Roxas had indeed planned to kill her from the time they took the car. As testified to by Agnes:
xxxx
Q- You said that Roxas returned with a biscuit and a bottle of softdrink, what was
done with the biscuit and bottle of softdrink, if you know? Q – What did you do when the bottle of softdrink was being offered to you?

A – I refused to accept it, he insisted but still I refused so he just handed it to Gungon. A - I refused to get it, sir.
He just told Gungon "mamaya painom mo sa kanya at pakainin mo siya," sir.
Q – When you refused to drink it, do you know what did Gungon do?
Q – Why did you refuse the softdrink?
A – Yes, he got mad and furious, he held me so tight and forced me to drink it, sir.
A- Simply because when he handed it to me I saw tablets floating inside the bottle,
sir.45
Q - Now, because he was furious and he was angry at you, what did you do?

xxxx
A - I took the softdrink, sir.

Q – At about 5:00 and 6:00 in the evening of January 12, 1994 where were you at that
Q- After you drank that softdrink, what happened?
time?

xxxx
xxxx

A – Yes, sir, after drinking it Roxas offered two (2) more tablets to Gungon, he told to
A- Actually we were not really there, its (sic) we were headed towards South
Gungon "ipainom mo pa sa kanya itong dalawang tabletas dahil malaki siya, mahina
Superhighway. I mean I don’t know the exact place but I am familiar that we were
iyong dalawa para sa kanya".47
heading towards South super highway, sir.

xxxx
xxxx

Q – Do you know what time was it when you woke up?

Q – When you reached the South Superhighway at that time what happened?

A - I guess it was about 9:30 or 10:00 in the evening, sir.

A – While we were in the car Gungon got his beeper and then he told Roxas "Boss,
negative Philcoa," sir.
Q – How were you able to place the time?
xxxx
A - There is a watch on the dashboard of the car, sir.48
Q – While you were driving along South super highway at that time, do you know what
happened inside the car between the three of you? Thus, from the foregoing, it is evident that the commission of the killing,  albeit frustrated, was
formed from the moment the accused took the victim in Quezon City until she was ultimately
"executed" in Batangas. The lapse of more than eight hours, that is, approximately from 1:00
A – Yes, sir. That time Gungon was still holding me and then he told Roxas "boss,
p.m. to 10:00 p.m., satisfies the last requisite for the appreciation of evident premeditation as
dalhin na natin siya sa dati, doon na natin siya i-s."
there was sufficient time for meditation and reflection before the commission of the crime yet
appellant proceeded with the same.
Q – After you heard that remark of Gungon, what did you do?
Likewise, we agree that Roxas is also guilty of violation of the Anti-Carnapping Law. R.A. 6539,
otherwise known as An Act Preventing and Penalizing Carnapping, defines carnapping as the
taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or
by means of violence against or intimidation of persons, or by using force upon things." More
specifically, the elements of the crime are as follows:
1. That there is an actual taking of the vehicle;
2. That the offender intends to gain from the taking of the vehicle;
3. That the vehicle belongs to a person other than the offender himself;
4. That the taking is without the consent of the owner thereof; or that the taking was
committed by means of violence against or intimidation of persons, or by using force
upon things.
A careful examination of the evidence presented would show that all the elements of carnapping
were proven in this case. It cannot be denied that the 1993 Nissan Sentra with plate number
TKR-837 was unlawfully taken from Agnes without her consent and by means of force or
intimidation, considering that he and his co-accused alternately poked a gun at Agnes. After
shooting her, appellant also flee with the subject vehicle which shows his intent to gain. Agnes
also positively identified appellant and Gungon as the ones who took the subject vehicle from
her.
Finally, we likewise agree that Roxas is only guilty of theft and not robbery as initially charged.
From the records, it appears that the jewelries and cash were taken from Agnes without the
attendance of violence or intimidation upon her person. Agnes herself testified that when she
regained consciousness, she already found her necklace, pair of earrings, watch and cash, to be
missing.49 While it was proven beyond reasonable doubt that appellant took Agnes' personal
things, there was no evidence, however, that the taking was employed with the use of force,
violation and intimidation.
PENALTIES
As to the imposable penalty, we sustain the findings of the RTC, as affirmed by the appellate
court, with modification as to the penalty for the crime of kidnapping and serious illegal detention
with frustrated murder and the awarding of damages.
The crime of kidnapping and serious illegal detention has been correctly complexed by the RTC
with frustrated murder. A complex crime is committed when a single act constitutes two or more,
grave or less grave, felonies, or when an offense is a necessary means for committing the other.
In a complex crime, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period. Since the kidnapping and serious illegal detention is the more
serious crime, the proper penalty under Article 267 50 of the Revised Penal Code, as amended by
R.A. 7659, should be applied in its maximum period; thus, the penalty should be death.
However, in light of R.A. 9346, or the Anti-Death Penalty Law, which prohibits the imposition of
the death penalty, the imposition of the penalty of reclusion perpetua instead of death is, thus,
proper and ineligible for parole.
Likewise, in accordance with current jurisprudence, we modify the award of damages, and
apply People of the Philippines v. Richard O. Sarcia51 where we said:
The principal consideration for the award of damages, under the ruling in People v.
Salome and People v. Quiachon is the penalty provided by law or imposable for the offense
because of its heineousness, not the public penalty actually imposed on the offender.
xxxx
It should be noted that while the new law prohibits the imposition of the death penalty, the
penalty provided for by law for a heinous offense is still death and the offense is still heinous.
Consequently, the civil indemnity for the victim is still Php75,000.00.
People v. Quiachon also rationcinates as follows:
With respect to the award of damages, the appellate court, following prevailing jurisprudence,
correctly awarded the following amounts: P75,000.00 as civil indemnity which is awarded if the
crime is qualified by circumstances warranting the imposition of the death penalty;  P75,000.00
as moral damages because the victim is assumed to have suffered moral injuries, hence,
entitling her to an award of moral damages even without proof thereof, x x x.
Even if the penalty of death is not to be imposed on the appellant because of the prohibition in
R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the
rationcination in People v. Victor, the said award is not dependent on the actual imposition of the
death penalty but on the fact that qualifying circumstances warranting the imposition of the death
penalty attended the commission of the offense. The Court declared that the award
of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law
and the financial fluctuations over time but also the expression of the displeasure of the court of
the incidence of heinous crimes against chastity."1avvphi1
The litmus test therefore, in the determination of the civil indemnity is the heinous character of
the crime committed, which would have warranted the imposition of the death penalty,
regardless of whether the penalty actually imposed is reduced to reclusion perpetua. 52
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals, dated
January 13, 2006, in CA-G.R. CR-HC No. 00666, is AFFIRMED with MODIFICATION, insofar as
to sentence appellant Venancio Roxas y Arguelles to suffer the penalty of reclusion perpetua for
the crime of Kidnapping and Serious Illegal Detention with Frustrated Murder, and to declare him
ineligible for parole. Appellant is, likewise, ordered to pay Agnes GuirindolaP75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. Costs
against the appellant.
VILLACORTA VS. INS COMMM
The undisputed facts of the case as found in the appealed decision of April 14, 1980 of
respondent insurance commission are as follows:
Complainant [petitioner] was the owner of a Colt Lancer, Model 1976,
insured with respondent company under Private Car Policy No. MBI/PC-
0704 for P35,000.00 — Own Damage; P30,000.00 — Theft; and
P30,000.00 — Third Party Liability, effective May 16, 1977 to May 16, 1978.
On May 9, 1978, the vehicle was brought to the Sunday Machine Works,
Inc., for general check-up and repairs. On May 11, 1978, while it was in the
custody of the Sunday Machine Works, the car was allegedly taken by six
(6) persons and driven out to Montalban, Rizal. While travelling along
Mabini St., Sitio Palyasan, Barrio Burgos, going North at Montalban, Rizal,
 the car figured in an accident, hitting and bumping a gravel and sand truck
parked at the right side of the road going south. As a consequence, the
gravel and sand truck veered to the right side of the pavement going south
and the car veered to the right side of the pavement going north. The driver,
Benito Mabasa, and one of the passengers died and the other four
sustained physical injuries. The car, as well, suffered extensive damage.
Complainant, thereafter, filed a claim for total loss with the respondent
company but claim was denied. Hence, complainant, was compelled to
institute the present action.
The comprehensive motor car insurance policy for P35,000.00 issued by respondent Empire
Insurance Company admittedly undertook to indemnify the petitioner-insured against loss or
damage to the car (a) by accidental collision or overturning, or collision or overturning
consequent upon mechanical breakdown or consequent upon wear and tear; (b) by fire, external
explosion, self-ignition or lightning or burglary, housebreaking or theft; and (c) by malicious act.
Respondent insurance commission, however, dismissed petitioner's complaint for recovery of
the total loss of the vehicle against private respondent, sustaining respondent insurer's
contention that the accident did not fall within the provisions of the policy either for the Own
Damage or Theft coverage, invoking the policy provision on "Authorized Driver" clause.  1
Respondent commission upheld private respondent's contention on the "Authorized Driver"
clause in this wise: "It must be observed that under the above-quoted provisions, the policy limits
the use of the insured vehicle to two (2) persons only, namely: the insured himself or any person
on his (insured's) permission. Under the second category, it is to be noted that the words "any
person' is qualified by the phrase
... on the insured's order or with his permission.' It is therefore clear that if
the person driving is other than the insured, he must have been duly
authorized by the insured, to drive the vehicle to make the insurance
company liable for the driver's negligence. Complainant admitted that she
did not know the person who drove her vehicle at the time of the accident,
much less consented to the use of the same (par. 5 of the complaint). Her
husband likewise admitted that he neither knew this driver Benito Mabasa
(Exhibit '4'). With these declarations of complainant and her husband, we
hold that the person who drove the vehicle, in the person of Benito Mabasa,
is not an authorized driver of the complainant. Apparently, this is a violation
of the 'Authorized Driver' clause of the policy.
Respondent commission likewise upheld private respondent's assertion that the car was not
stolen and therefore not covered by the Theft clause, ruling that "The element of 'taking' in
Article 308 of the Revised Penal Code means that the act of depriving another of the possession
and dominion of a movable thing is coupled ... with the intention. at the time of the 'taking', of
withholding it with the character of permanency (People vs. Galang, 7 Appt. Ct. Rep. 13). In
other words, there must have been shown a felonious intent upon the part of the taker of the car,
and the intent must be an intent permanently to deprive the insured of his car," and that "Such
was not the case in this instance. The fact that the car was taken by one of the residents of the
Sunday Machine Works, and the withholding of the same, for a joy ride should not be construed
to mean 'taking' under Art. 308 of the Revised Penal Code. If at all there was a 'taking', the same
was merely temporary in nature. A temporary taking is held not a taking insured against (48 A
LR 2d., page 15)."
The Court finds respondent commission's dismissal of the complaint to be contrary to the
evidence and the law.
First, respondent commission's ruling that the person who drove the vehicle in the person of
Benito Mabasa, who, according to its finding, was one of the residents of the Sunday Machine
Works, Inc. to whom the car had been entrusted for general check-up and repairs was not an
"authorized driver" of petitioner-complainant is too restrictive and contrary to the established
principle that insurance contracts, being contracts of adhesion where the only participation of the
other party is the signing of his signature or his "adhesion" thereto, "obviously call for greater
strictness and vigilance on the part of courts of justice with a view of protecting the weaker party
from abuse and imposition, and prevent their becoming traps for the unwary. 2
The main purpose of the "authorized driver" clause, as may be seen from its text, supra, is that a
person other than the insured owner, who drives the car on the insured's order, such as his
regular driver, or with his permission, such as a friend or member of the family or the employees
of a car service or repair shop must be duly licensed drivers and have no disqualification to drive
a motor vehicle.
A car owner who entrusts his car to an established car service and repair shop necessarily
entrusts his car key to the shop owner and employees who are presumed to have the insured's
permission to drive the car for legitimate purposes of checking or road-testing the car. The mere
happenstance that the employee(s) of the shop owner diverts the use of the car to his own illicit
or unauthorized purpose in violation of the trust reposed in the shop by the insured car owner
does not mean that the "authorized driver" clause has been violated such as to bar recovery,
provided that such employee is duly qualified to drive under a valid driver's license.
The situation is no different from the regular or family driver, who instead of carrying out the
owner's order to fetch the children from school takes out his girl friend instead for a joy ride and
instead wrecks the car. There is no question of his being an "authorized driver" which allows
recovery of the loss although his trip was for a personal or illicit purpose without the owner's
authorization.
Secondly, and independently of the foregoing (since when a car is unlawfully taken, it is the theft
clause, not the "authorized driver" clause, that applies), where a car is admittedly as in this case
unlawfully and wrongfully taken by some people, be they employees of the car shop or not to
whom it had been entrusted, and taken on a long trip to Montalban without the owner's consent
or knowledge, such taking constitutes or partakes of the nature of theft as defined in Article 308
of the Revised Penal Code, viz. "Who are liable for theft. — Theft is committed by any person
who, with intent to gain but without violence against or intimidation of persons nor force upon
things, shall take personal property of another without the latter's consent," for purposes of
recovering the loss under the policy in question.
The Court rejects respondent commission's premise that there must be an intent on the part of
the taker of the car "permanently to deprive the insured of his car" and that since the taking here
was for a "joy ride" and "merely temporary in nature," a "temporary taking is held not a taking
insured against."
The evidence does not warrant respondent commission's findings that it was a mere "joy ride".
From the very investigator's report cited in its comment, 3 the police found from the waist of the
car driver Benito Mabasa Bartolome who smashed the car and was found dead right after the
incident "one cal. 45 Colt. and one apple type grenade," hardly the materials one would bring
along on a "joy ride". Then, again, it is equally evident that the taking proved to be quite
permanent rather than temporary, for the car was totally smashed in the fatal accident and was
never returned in serviceable and useful condition to petitioner-owner.
Assuming, despite the totally inadequate evidence, that the taking was "temporary" and for a
"joy ride", the Court sustains as the better view that which holds that when a person, either with
the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes
possession of a vehicle belonging to another, without the consent of its owner, he is guilty of
theft because by taking possession of the personal property belonging to another and using it,
his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and
pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the use of a thing
constitutes gain and Cuello Calon who calls it "hurt de uso. " 4
The insurer must therefore indemnify the petitioner-owner for the total loss of the insured car in
the sum of P35,000.00 under the theft clause of the policy, subject to the filing of such claim for
reimbursement or payment as it may have as subrogee against the Sunday Machine Works, Inc.
ACCORDINGLY, the appealed decision is set aside and judgment is hereby rendered
sentencing private respondent to pay petitioner the sum of P35,000.00 with legal interest from
the filing of the complaint until full payment is made and to pay the costs of suit.
CARPIO
 This appeal has been brought to reverse a judgment of the Court of First Instance of the City of
Manila, finding the appellant, Juan Carpio, guilty of larceny in stealing three automobile tires,
and sentencing him to undergo imprisonment for four months and one day, arresto mayor, and
requiring him to pay a third part of the costs of prosecution.
          The information upon which the appellant was tried charges him and his coaccused with
the larceny of a "Star" automobile of the value of P1,750; but, under the circumstances presently
to be stated, the trial judge found the appellant guilty, not of the larceny of the automobile, but of
three tires only. At a former day of this term the case was heard upon appeal in the second
division of this court, and the judgment was modified by declaring that the accused was guilty of
stealing the automobile mentioned in the complaint and not of the three tires only, with the result
that the penalty imposed on the accused was raised form four months and one day to two
years,presidio correccional, with the accessory penalties appropriate thereto.  1 Against the
judgment of the court in division a motion for reconsideration was interposed, wherein the
appellant suggested a question of law, appropriate for the attention of the full court, and asked
that the motion be considered and determined by the court en pleno, as is accordingly now
done.
          The facts of the case are briefly these: Early in the morning of March 10, 1928, one
Raymundo Silos hired automobile No. 396 from the Santa Cruz Garage located on the corner of
Azcarraga Street and Rizal Avenue, in the City of Manila. This car was of the make known as
"Star," and was driven by the chauffeur Resurreccion Ledesma. Upon leaving the garage
Ledesma observed that another Star car was following them, driven by the appellant, Juan
Carpio, with whom was riding one Serapio Feliciano. Ledesma was directed to drive his car, No.
376, to the Luzon Cabaret, in San Pedro Makati, near the City of Manila. At that place Silos and
Carpio engaged in conversation for a few minutes, after which Silos ordered Ledesma to direct
his course to Manila, which Ledesma did. Meanwhile the car driven by Carpio was still following
them.
          At the Bostom Restaurant, in the City of Manila, Silos invited Ledesma to come in with him
to eat something; and, while they were thus engaged, Ledesma's car (No. 376 was stolen and
was not to be found when Silos and Ledesma emerged from the restaurant. The next day the
stolen car was found in Economia Street, Manila, stripped of three tires with the rims, two of
which tires were taken from the wheels of the car and the other from the tire carrier. A few days
thereafter the three tires taken from car No. 376 were found on the "Star" car which was being
driven by Juan Carpio. When thus found, the car of Carpio was standing in front of the Legaspi
Landing. When the owner of the car No. 376 asked Carpio how his three tires came to be on
Carpio's car, the latter admitted that said three tires belonged to the owner of the car No. 376;
and they were in fact readily identified by their numbers.
          There can be no possible doubt as to the fact that Star car No. 376 was stolen under the
circumstances above stated and stripped of three of its tires by the thieves, one of whom was
the appellant, Juan Carpio; and the trial court committed on error in finding this appellant guilty
of the crime of theft. We are of the opinion, however, that the act of theft was consummated not
only with respect to the tires but with respect to the automobile, and we are of the opinion that
the trial court erred on the side of leniency in sentencing the appellant for the theft of the tires
only.
          The gist of the offense of larceny consists in the furtive taking and asportation of
property, animo lucrandi, and with intent to deprive the true owner of the possession thereof.
The act of asportation in this case was undoubtedly committed with intent on the part of the thief
to profit by the act, and since he effectively deprived the true owner of the possession of the
entire automobile, the offense of larceny comprised the whole car. The fact that the accused
stripped the car of its tires and abandoned the machine in a distant part of the city did not make
the appellant any less liable for the larceny of that automobile. The deprivation of the owner and
the trespass upon his right of possession were complete as to the entire car; and the fact that
the thieves thought it wise promptly to abandon the machine in no wise limits their criminal
responsibility to the particular parts of the car that were appropriated and subsequently used by
the appellant upon his own car.
          But it is insisted that owing to the particular form in which the trial court worded its opinion,
it must be considered that the lower court in effect acquitted the accused of larceny of the whole
car. In this connection emphasis is placed upon the dispositive part of the opinion of the court
below wherein it is declared that the court found the accused guilty of the theft, not of the "Star"
automobile, as alleged in the complaint, but only of the three tires.
          This contention is not well founded. The complaint charges the theft of the car. The proof
shows that the car was taken with the result of depriving the owner of the possession thereof,
and that the taking was of a felonious character. It is the uniform practice of this court to modify
decisions on appeal not only in a sense favorable to the accused, but, if the circumstances
require, in a sense unfavorable to the accused; and this rule has not been infrequently applied
here by raising the penalty to death in cases requiring the ultimate penalty.
          The car that was stolen in this case (No. 376) appears to have been put into commission
in November, 1927, and was stolen in the month of March, 1928. It was thus practically a new
car, and we have no hesitancy in taking judicial notice of the fact that it was worth in excess of
1,250 pesetas, or P250. This puts the offense under No. 3 of article 518 of the Penal Code, and
there being neither aggravating nor mitigating circumstance to be taken into account, the penalty
to be applied is in the medium degree of the penalty fixed in said provision. This penalty runs
from one year, eight months and twenty-one days to two years, eleven months and ten
days, presidio correccional; and we are of the opinion that, all circumstances considered, the
appellant merits two years of such imprisonment. 1awph
Aristotle Valenzuela vs. People
GR # 160188, June 21, 2007
Facts: Petitioner effectively concedes having performed the felonious acts imputed against him, but
instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. Petitioner left the parking area and haled a taxi. He
boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago,
who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning
shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases
of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods
with an aggregate value of P12,090.00.
Issue: WON petitioner is guilty of frustrated theft
Held: Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an
felony is consummated when all the elements necessary for its execution and accomplishment are present.
It is frustrated when the offender performs all the acts of execution which would produce the felony as a aggregate value of P12,090.00.[9]
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by
 
overt acts, and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance. We thus conclude that under the
Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his           Petitioner and Calderon were first brought to the SM security office before they were transferred on
appeal on our acceptance of the Dio and Flores  rulings, his petition must be denied, for we decline to
adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It
no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion.
It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be appears from the police investigation records that apart from petitioner and Calderon, four (4) other
recognized. Our deference to Viada yields to the higher reverence for legislative intent.
persons were apprehended by the security guards at the scene and delivered to police custody at the Baler
 The basic facts are no longer disputed before us. The case stems from an Information [6] charging
PNP Station in connection with the incident. However, after the matter was referred to the Office of the
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19
Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City
May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a
Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]  
supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security
 
guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner,
          After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
who was wearing an identification card with the mark “Receiving Dispatching Unit (RDU),” hauling a
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May
push cart with cases of detergent of the well-known “Tide” brand. Petitioner unloaded these cases in an
1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the
open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to
after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to
withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. [11]As the queue for the
the same area in the open parking space.[7]
ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was
 
while  they  were  eating  that  they  heard  the gunshot  fired by
 
Lago,  leading  them  to  head  out  of  the  building to check what was
 

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it

towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide

Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to

stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the

merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his

fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the

stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide
  rejected this contention and affirmed petitioner’s conviction. [22] Hence the present Petition for Review,

[23]
   which expressly seeks that petitioner’s conviction “be modified to only of Frustrated Theft.” [24]
 
transpiring. As they were outside, they were suddenly “grabbed” by a security guard, thus commencing
          Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio
intent and his actual participation in the theft of several cases of detergent with a total value of  P12,090.00
Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a
of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other
tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and
than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only
the other people at the scene to start running, at which point he was apprehended by Lago and brought to
question to consider is whether under the given facts, the theft should be deemed as consummated or
the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at
merely frustrated.
which time he and the others were brought to the Baler Police Station. At the station, petitioner denied
 
having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the
II.
prosecutor’s office where he was charged with theft.[14] During petitioner’s cross-examination, he admitted
 
that he had been employed as a “bundler” of GMS Marketing, “assigned at the supermarket” though not at
          In arguing that he should only be convicted of frustrated theft, petitioner cites [26] two decisions
SM.[15]
  rendered many years ago by the Court of Appeals: People v. Diño[27]  and People v. Flores.[28] Both

          In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, decisions elicit the interest of this Court, as they modified trial court convictions from consummated to

Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the

sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the

(7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the prosecution import of the rulings when it affirmed the conviction.

witnesses and established the convictions on the positive identification of the accused as perpetrators of  

the crime. It is not necessary to fault the Court of Appeals for giving short shrift to
 
the Diño and Flores rulings since they have not yet been expressly  adopted  as precedents by this Court.
Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with
For whatever reasons,
the Court of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and

consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted

of frustrated theft since at the time he was apprehended, he was never placed in a position to freely

dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals
  

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite

the silence on our part, Diño  and Flores have attained a level of renown reached by very few other

appellate court rulings. They are comprehensively discussed in the most popular of our criminal law

annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as

definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that

populate criminal law exams more than they actually occur in real life. Indeed, if we finally say

that Diño and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft

prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with

the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area

pay booth, may easily call for the application of Diño and Flores. The fact that lower courts have not

hesitated to lay down convictions for frustrated theft further validates that Diño and Flores and the

theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time

is thus ripe for us to examine whether those theories are correct and should continue to influence

prosecutors and judges in the future.    

 
  specific acts of execution that define each crime under the Revised Penal Code are generally enumerated

III. in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the

  acts actually performed by the accused as against the acts that constitute the felony under the Revised

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative Penal Code.

to “frustrated theft,” it is necessary to first refer to the basic rules on the three stages of crimes under our  

Revised Penal Code.[30]           In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

  concession that all of the acts of execution have been performed by the offender. The critical distinction

          Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A instead is whether the felony itself was actually produced by the acts of execution. The determination of

felony is consummated “when all the elements necessary for its execution and accomplishment are whether the felony was “produced” after all the acts of execution had been performed hinges on the

present.” It is frustrated “when the offender performs all the acts of execution which would produce the particular statutory definition of the felony.  It is the statutory definition that generally furnishes the

felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular

will of the perpetrator.” Finally, it is attempted “when the offender commences the commission of a requisite acts of execution and accompanying criminal  intent.

felony directly by overt acts, and does not perform all the acts of execution which should produce the  

felony by reason of some cause or accident other than his own spontaneous desistance.”           The long-standing Latin maxim “actus non facit reum, nisi mens sit rea” supplies an important

  characteristic of a crime, that “ordinarily, evil intent must unite with an unlawful act for there to be a

          Each felony under the Revised Penal Code has a “subjective phase,” or that portion of the acts crime,” and accordingly, there can be no crime when the criminal mind is wanting. [35] Accepted in this

constituting the crime included between the act which begins the commission of the crime and the last act jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as “a guilty mind, a

performed by the offender which, with prior acts, should result in the consummated crime. [31] After that guilty or wrongful purpose or criminal intent,” [37] and “essential for criminal liability.” [38]It follows that the

point has been breached, the subjective phase ends and the objective phase begins. [32] It has been held that statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and

if the offender never passes the subjective phase of the offense, the crime is merely attempted. [33] On the indeed the U.S. Supreme Court has comfortably held that “a criminal law that contains no mens

other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, rea requirement infringes on constitutionally protected rights.” [39] The criminal statute must also provide

“[s]ubjectively the crime is complete.”[34] for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that  mens

  rea be shown; there must also be an actus reus.[40]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and  

attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite  

commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the  
 It is from the actus reus  and the mens rea, as they find expression in the criminal statute, that in theft ─ the taking of personal property of another. It is also clear from the provision that in order that

the felony is produced.  As a postulate in the craftsmanship of constitutionally sound laws, it is extremely such taking may be qualified as theft, there must further be present the descriptive circumstances that the

preferable that the language of the law expressly provide when the felony is produced. Without such taking was with intent to gain; without force upon things or violence against or intimidation of persons;

provision,  disputes would inevitably ensue on the elemental question whether or not a crime was and it was without the consent of the owner of the property.

committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is  

assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from Indeed, we have long recognized the following elements of theft as provided for in Article 308

such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded  which of the Revised Penal Code, namely:  (1) that there be taking of personal property; (2) that said property

attests when the felony is  produced by the acts of execution. For example, the statutory definition of belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the

murder or homicide expressly uses the phrase “shall kill another,” thus making it clear that the felony is consent of the owner; and (5) that the taking be accomplished without the use of violence against or

produced by the death of the victim, and conversely, it is not produced if the victim survives. intimidation of persons or force upon things.[42]

   

          We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its In his commentaries, Judge Guevarra traces the history of the definition of theft, which under

elements are spelled out as follows: early Roman law as defined by Gaius, was so broad enough as to encompass “any kind of physical

  handling of property belonging to another against the will of the owner,” [43] a definition similar to that by
Art. 308. Who are liable for theft.— Theft is committed by any person
who, with intent to gain but without violence against or intimidation of persons nor Paulus that a thief “handles (touches, moves) the property of another.” [44] However, with the Institutes of
force upon things, shall take personal property of another without the latter’s
consent. Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of
Theft is likewise committed by:
acquiring gain from the object, thus: “[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel
1.   Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
ipsius rei, vel etiam usus ejus possessinisve.”[45] This requirement  of animo lucrandi, or intent to gain, was
2.   Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits or maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in  Great
object of the damage caused by him; and
3.   Any person who shall enter an inclosed estate or a field where Britain.[46]
trespass is forbidden or which belongs to another and without
the consent of its owner, shall hunt or fish upon the same or  
shall gather cereals, or other forest or farm products.
 
 
 
          Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
In Spanish law, animo lucrandi was compounded with apoderamiento, or “unlawful taking,” to
means by which theft may be committed. [41] In the present discussion, we need to concern ourselves only
characterize theft. Justice Regalado notes that the concept ofapoderamiento once had a controversial
with the general definition since it was under it that the prosecution of the accused was undertaken and
interpretation and application. Spanish law had already discounted the belief that mere physical taking was
sustained. On the face of the definition, there is only one operative act of execution by the actor involved
constitutive ofapoderamiento, finding that it had to be coupled with “the intent to appropriate the object in
order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the
thing.”[47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that
there must be permanency in the taking [48] or an intent to permanently deprive the owner of the stolen
property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought
that there was no need of an intent to permanently deprive the owner of his property to constitute an
unlawful taking.[51]
 
 
 
          So long as the “descriptive” circumstances that qualify the taking are present, including  animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of
another establishes, at least, that the transgression went beyond the attempted stage. As applied to the
present case, the moment petitioner obtained physical possession of the cases of detergent and loaded
them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence
or intimidation against persons nor force upon things, and accomplished without the consent of the SM
Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would
have afforded him.
 
          On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as
a consequence, “do not produce [such theft] by reason of causes independent of the will of the
perpetrator.” There are clearly two determinative factors to consider: that the felony is not “produced,”
and that such failure is due to causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on
a doctrinal definition attaching to the individual felonies in the Revised Penal Code [52] as to when a
particular felony is “not produced,” despite the commission of all the acts of execution.
 
          So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft “produced.” Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
“produced” upon the “tak[ing of] personal property of another without the latter’s consent.”
          U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with
theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to “get the merchandise out of the Custom
House,” and it appears that he “was under observation during the entire transaction.” [54] Based apparently
on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of
consummated theft, finding that “all the elements of the completed crime of theft are present.” [55] In
support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we replicate below:
 
          The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it
did not appear that he was at that moment caught by the policeman but sometime
later. The court said: "[x x x] The trial court did not err [x x x ] in considering the
crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit
from the adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an interval of
time." (Decision of the Supreme Court of Spain, October 14, 1898.)
 
 Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act, although afterwards caught by a policeman.” [58] In rejecting the contention that only frustrated theft was established,
noticing the theft, did not do anything to prevent it. Subsequently, however, while
the defendant was still inside the church, the offended party got back the money the Court simply said, without further comment or elaboration:
from the defendant. The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the Supreme
 
Court of Spain, December 1, 1897.)
We believe that such a contention is groundless. The [accused] succeeded in
 
taking the pocket-book, and that determines the crime of theft. If the pocket-
The defendant penetrated into a room of a certain house and by means of
book was afterwards recovered, such recovery does not affect the [accused’s]
a key opened up a case, and from the case took a small box, which was also opened
criminal liability, which arose from the [accused] having succeeded in taking
with a key, from which in turn he took a purse containing 461 reales and 20
the pocket-book.[59]
centimos, and then he placed the money over the cover of the case; just at this
moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused          
[x x x] having materially taken possession of the money from the moment he took it
from the place where it had been, and having taken it with his hands with intent to           If anything, Sobrevilla is consistent with Adiao  and the Spanish Supreme Court cases cited in the
appropriate the same, he executed all the acts necessary to constitute the crime
which was thereby produced; only the act of making use of the thing having been latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen
frustrated, which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56] item, no matter how momentary, was able to consummate the theft.

   

          Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the

          It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous,

criminal actors in all these cases had been able to obtain full possession of the personal property prior to as there is another school of thought on when theft is consummated, as reflected in

their apprehension. The interval between the commission of the acts of theft and the apprehension of the the Diño  and Flores decisions.

thieves did vary, from “sometime later” in the 1898 decision; to the very moment the thief had just  

extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years

had been able to spirit the item stolen from the building where the theft took place, as had happened before Flores. The accused therein, a driver employed by the United States Army, had driven his truck

in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.

ruled that the thefts in each of those cases was consummated by the actual possession of the property After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a

belonging to another. checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein

  three boxes of army rifles. The accused later contended that he had been stopped by four men who had

          In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed

rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals

of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim modified the conviction, holding instead that only frustrated theft had been committed.

when the latter, perceiving the theft, “caught hold of the [accused]’s shirt-front, at the same time shouting  

for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was
 In doing so, the appellate court pointed out that the evident intent of the accused was to let the [herein] and in [Diño].”[64] Such conclusion is borne out by the facts in Flores. The accused therein, a

boxes of rifles “pass through the checkpoint, perhaps in the belief that as the truck had already unloaded checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to

its cargo inside the depot, it would be allowed to pass through the check point without further the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the

investigation or checking.”[60]This point was deemed material and indicative that the theft had not been stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the

fully produced, for the Court of Appeals pronounced that “the fact determinative of consummation is the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the “empty”

ability of the thief to dispose freely of the articles stolen, even if it were more or less sea van had actually contained other merchandise as well. [65] The accused was prosecuted for theft

momentary.”[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the

dated 24 January 1888 (1888 decision), which was quoted as follows: Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the

  appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga en accused that “literally frustrated the theft.” However, the Court of Appeals, explicitly relying on Diño, did
circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera
sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de find that the accused was guilty only of frustrated, and not consummated, theft.
hurto, no puede decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.[62]
 
 
As noted earlier, the appellate court admitted it found “no substantial variance”
Integrating these considerations, the Court of Appeals then concluded:
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that case
 
from Diño, citing a “traditional ruling” which unfortunately was not identified in the decision itself.
 
However, the Court of Appeals pointed out that the said “traditional ruling” was qualified by the words “is
 
placed in a situation where [the actor] could dispose of its contents at once.” [66] Pouncing on this
 
qualification, the appellate court noted that “[o]bviously, while the truck and the van were still within the
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen must first
be passed through the M.P. check point, but since the offense was opportunely compound, the petitioner could not have disposed of the goods ‘at once’.” At the same time, the Court of
discovered and the articles seized after all the acts of execution had been performed,
but before the loot came under the final control and disposal of the looters, the Appeals conceded that “[t]his is entirely different from the case where a much less bulk and more
offense can not be said to have been fully consummated, as it was frustrated by the
timely intervention of the guard. The offense committed, therefore, is that of common thing as money was the object of the crime, where freedom to dispose of or make use of it is
frustrated theft.[63] 
palpably less restricted,”[67] though no further qualification was offered what the effect would have been
 
had that alternative circumstance been present instead. 
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen
 
at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This
 
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according
 
to the division of the court that decided it, bore “no substantial variance between the circumstances
   In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to states that “[i]n theft or robbery the crime is consummated after the accused had material possession of the

whether the crime of theft was produced is the ability of the actor “to freely dispose of the articles stolen, thing with intent to appropriate the same, although his act of making use of the thing was frustrated.” [72]

even if it were only momentary.” Such conclusion was drawn from an 1888 decision of the Supreme  

Court of Spain which had pronounced that in determining whether theft had been consummated, “es There are at least two other Court of Appeals rulings that are at seeming variance with

preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o the Diño  and Flores rulings. People v. Batoon[73] involved an accused who filled a container with gasoline

menos momentaneamente.” The qualifier “siquiera sea mas o menos momentaneamente” proves another from a petrol pump within view of a police detective, who followed the accused onto a passenger truck

important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the

items before apprehension, then the theft could be deemed consummated. Such circumstance was not Court of Appeals held that the accused was guilty of consummated qualified theft, finding that “[t]he facts

present in either Diño or Flores, as the stolen items in both cases were retrieved from the actor before they of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to

could be physically extracted from the guarded compounds from which the items were filched. However, gain is enough to consummate the crime of theft.”[74]

as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether  

there could have been “free disposition,” as in the case where the chattel involved was In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply

of  “much  less  bulk  and  more common x x x, [such] as money x x x.”[68] depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items

  were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to

In his commentaries, Chief Justice Aquino makes the following pointed observation on the similarity with those in Diño, the Court of Appeals held that the accused were guilty of consummated

import of the Diño ruling: theft, as the accused “were able to take or get hold of the hospital linen and that the only thing that was

  frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected

  from the commission of the offense.”[76]

   

  In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that “[w]hen
There is a ruling of the Court of Appeals that theft is consummated when
the thief is able to freely dispose of the stolen articles even if it were more or less the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
momentary. Or as stated in another case[ [69]], theft is consummated upon the
voluntary and malicious taking of property belonging to another which is realized stage of execution of that felony.”[77] Indeed, we can discern from this survey of jurisprudence that the
by the material occupation of the thing whereby the thief places it under his control
and in such a situation that he could dispose of it at once. This ruling seems to have
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational
been based on Viada’s opinion that in order the theft may be consummated, “es
preciso que se haga en circumstancias x x x [[70]]”[71]
basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a
 
crime in the first place.
             Empelis held that the crime was only frustrated because the actors “were not able to perform all

  the acts of execution which should have produced the felon as a consequence.” [81] However, per Article 6

IV. of the Revised Penal Code, the crime is frustrated “when the offender performs all the acts of

  execution,” though not producing the felony as a result. If the offender was not able to perform all the acts

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not of execution, the crime is attempted, provided that the non-

consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s 1984 performance  was by  reason  of  some  cause  or  accident  other  than spontaneous

decision in Empelis v. IAC.[78] desistance. Empelis  concludes  that  the  crime  was

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the

premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by

the owner within the plantation as they were carrying with them the coconuts they had gathered. The

accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the

owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the

issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft

was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were

guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was

consummated or frustrated was raised by any of the parties. What does appear, though, is that the

disposition of that issue was contained in only two sentences, which we reproduce in full:

 
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should have
produced the felony as a consequence. They were not able to carry the coconuts
away from the plantation due to the timely arrival of the owner.[80]

          No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish

authorities who may have bolstered the conclusion. There are indeed evident problems with this

formulation in Empelis.

 
 
 
frustrated because not all of the acts of execution were performed due to the timely arrival of the owner.
However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the
crime was only attempted, especially given that the acts were not performed because of the timely arrival
of the owner, and not because of spontaneous desistance by the offenders.
 
          For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised
Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the
relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.
 
          Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on
theft.  Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even
if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
          Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
 
V.
 
          At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1.   Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas
ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su
dueño.
2.      Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la
apropriaren co intención de lucro.
3.      Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño
causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607, núms,
1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
 
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several times
thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply defined
as “[e]l que, con ánimo de lucro,
  
   

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado”[82] Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
   
La doctrina hoy generalmente sustentada considera que el hurto se
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, “la libre consuma cuando la cosa queda de hecho a la disposición del  agente. Con este
criterio coincide la doctrina sentada últimamente porla jurisprudencia española
que generalmente considera consumado el hurto cuando el culpable coge o
disposicion” of the property is not an element or a statutory characteristic of the crime. It does appear that
aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su
poder.   El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente.
the principle originated and perhaps was fostered in the realm of Spanish jurisprudence. El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta
  por el culpable o fuere recuperada. No se concibe la frustración, pues es muy
dificil que el que hace cuanto es necesario para la consumación del hurto no lo
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the consume efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos consumados.
[87]
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether the crime  (Emphasis supplied)
 
of frustrated or consummated theft had occurred. The passage cited in Diño was actually utilized by Viada
 
to answer the question whether frustrated or consummated theft was committed “[e]l que en el momento
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with
mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al suelo.”[83] Even as the answer
replicating the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own
was as stated in Diño, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that
thought that questioned whether theft could truly be frustrated, since “pues es muy dificil que el que hace
decision’s factual predicate occasioning the statement was apparently very different from  Diño, for it
cuanto es necesario para la consumación del hurto no lo consume efectivamente.” Otherwise put, it
appears that the 1888 decision involved an accused who was surprised by the employees of a
would be difficult to foresee how the execution of all the acts necessary for the completion of the crime
haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw
would not produce the effect of theft.
away the garment as he fled.[84]
   

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites This divergence of opinion convinces us, at least, that there is no weighted force in scholarly

decisions of the Supreme Court of Spain that have held to that effect. [85]A few decades later, the esteemed thought that obliges us to accept frustrated theft, as proposed inDiño and Flores. A final ruling by the

Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with respect Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such

to frustrated theft. a submission is hardly heretical in light of Cuello Calón’s position.

   
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro que tenían Accordingly, it would not be intellectually disingenuous for the Court to look at the question
preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervención
de la policia situada en el local donde se realizó la sustracción que impidió from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo
menos" frustración, si existe apoderamiento, pero el culpale no llega a disponer de
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we
la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero
1931. Algunos fallos han considerado la existencia de frustración cuando, ask the question whether there is a mandate of statute or precedent that must compel us to adopt
perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados,
los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of
admissible, éstos, conforme a lo antes expuesto, son hurtos consumados.[86]
obeisance to an inexorably higher command, but from the exercise of the function of statutory Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent

interpretation that comes as part and parcel of judicial review, and a function that allows breathing room to gain, of personal property of another without the latter’s consent. While the Diño/Flores dictum is

for a variety of theorems in competition until one is ultimately adopted by this Court. considerate to the mindset of the offender, the statutory definition of theft considers only the perspective

V. of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the

  victim.

The foremost predicate that guides us as we explore the matter is that it lies in the province of  

the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the For the purpose of ascertaining whether theft is susceptible of commission in the frustrated

legislature, as representatives of the sovereign people, which determines which acts or combination of acts stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity

are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident in the position that theft is produced when there is deprivation of personal property due to its taking by

legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the

not the courts, which is to define a crime, and ordain its punishment. [88] The courts cannot arrogate the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of

power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime the property stolen since the deprivation from the owner alone has already ensued from such acts of

in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier cited, that “[i]n

defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a theft or robbery the crime is consummated after the accused had material possession of the thing with

“narrow interpretation” is appropriate.  “The Court must take heed of language, legislative history and intent to appropriate the same, although his act of making use of the thing was frustrated.” [91]

purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.” [89]  

  It might be argued, that the ability of the offender to freely dispose of the property stolen

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the delves into the concept of “taking” itself, in that there could be no true taking until the actor obtains such

offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the

no support or extension in Article 308, whether as a descriptive or operative element of theft or as crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have

the mens rea or actus reus of the felony.  To restate what this Court has repeatedly held: the elements of not been completed, the “taking not having been accomplished.” Perhaps this point could serve as fertile

the crime of theft as provided for in Article 308 of the Revised Penal Code are:  (1) that there be taking of ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft,

personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply

(4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the

without the use of violence against or intimidation of persons or force upon things.[90] petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen

 
cases of detergent for a considerable period of time that he was able to drop these off at a spot in the the accused which does not reflect any legislated intent, [95] since the Court would have carved a viable

parking lot, and long enough to load these onto a taxicab. means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy

  classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete disposal by the thief. Would this depend on the psychological belief of the offender at the time of the

from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of commission of the crime, as implied in Diño?
 
the same.[92] And long ago, we asserted in People v.  Avila:[93]
 
 
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing  
to be appropriated into the physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be effected animo lucrandi and  
without the consent of the owner; and it will be here noted that the definition does
not require that the taking should be effected against the will of the owner but Or, more likely, the appreciation of several classes of factual circumstances such as the size
merely that it should be without his consent, a distinction of no slight importance.[94]
and weight of the property, the location of the property, the number and identity of people present at the
 
scene of the crime, the number and identity of people whom the offender is expected to encounter upon
Insofar as we consider the present question, “unlawful taking” is most material in this
fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite
respect.  Unlawful taking, which is the deprivation of one’s personal property, is the element which
frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account,
produces the felony in its consummated stage. At the same time, without unlawful taking as an act of
relevant as that would be on whether such property is capable of free disposal at any stage, even after the
execution, the offense could only be attempted theft, if at all.
taking has been consummated.
 
 
With these considerations, we can only conclude that under Article 308 of the Revised Penal
All these complications will make us lose sight of the fact that beneath all the colorful detail,
Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.
the owner was indeed deprived of property by one who intended to produce such deprivation for reasons
 
of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the
acts of execution, including the taking, have been completed. If the facts establish the non-completion of
offenders therein obtained possession over the stolen items, the effect of the felony has been produced as
the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted
there has been deprivation of property. The presumed inability of the offenders to freely dispose of the
stage, as not all of the acts of execution have been performed. But once all these acts have been executed,
stolen property does not negate the fact that the owners have already been deprived of their right to
the taking has been completed, causing the unlawful deprivation of property, and ultimately the
possession upon the completion of the taking.
consummation of the theft.
 
 
Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender

to freely dispose of the stolen property frustrates the theft — would introduce a convenient defense  for

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do
not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no language in
Article 308 that expressly or impliedly allows that the “free disposition of the items stolen” is in any way
determinative of whether the crime of theft has been produced. Diño itself did not rely on Philippine laws
or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying
on Diño alone for legal support.  These cases do not enjoy the weight of stare decisis, and even if they did,
their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true
ofEmpilis, a regrettably stray decision which has not since found favor from this Court.
 
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores  rulings, his
petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these
years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not
detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal
Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher
reverence for legislative intent.
JARANILLA
his is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes
from the decision of the Court of First Instance of Iloilo, which convicted them of
robbery with homicide, sentenced each of them to reclusion perpetua and ordered
them to pay solidarily the sum of six thousand pesos to the heirs of Ramonito
Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of
fighting cocks (Criminal Case No. 11082).chanroblesvirtualawlibrary chanrobles
virtual law library
The evidence for the prosecution shows that at around eleven o'clock in the evening
of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City,
was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he
was in front of the Elizalde Building on J. M. Basa Street, he saw Ricardo Suyo, Elias
Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck.
Jaranilla requested to bring them to Mandurriao, a district in another part of the
city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way
home.chanroblesvirtualawlibrary chanrobles virtual law library
Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla
ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes and
Suyo boarded the pickup truck which Gorriceta drove to
Mandurriao.chanroblesvirtualawlibrary chanrobles virtual law library
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to
seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted
from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in
the direction of the plaza. After an interval of about ten to twenty minutes, they
reappeared. Each of them was carrying two fighting cocks. They ran to the
truck.chanroblesvirtualawlibrary chanrobles virtual law library
Jaranilla directed Gorriceta to start the truck because they were being chased.
Gorriceta drove the truck to Jaro (another district of the city) on the same route
that they had taken in going to Mandurriao.chanroblesvirtualawlibrary chanrobles
virtual law library
It is important to note the positions of Gorriceta and his three companions on the
front seat of the track. Gorriceta the driver, was on the extreme left. Next to him on
his right was Suyo. Next to Suyo was Brillantes. On the extreme right was
Jaranilla.chanroblesvirtualawlibrarychanrobles virtual law library
While the truck was traversing the detour road near the Mandurriao airport, then
under construction, Gorriceta saw in the middle of the road Patrolmen Ramonito
Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the
truck after Patrolman Jabatan had fired a warning shot and was signalling with his
flashlight that the truck should stop. Gorriceta stopped the truck near the
policeman. Jabatan approached the right side of the truck near Jaranilla and ordered
all the occupants of the truck to go down. They did not heed the injunction of the
policeman.chanroblesvirtualawlibrary chanrobles virtual law library
Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a
sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He immediately
started the motor of the truck and drove straight home to La Paz, another district of
the city. Jaranilla kept on firing towards
Jabatan.chanroblesvirtualawlibrary chanrobles virtual law library
Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked
the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody about the
incident. Gorriceta went up to his room. After a while, he heard policemen shouting
his name and asking him to come down. Instead of doing so, he hid in the ceiling. It
was only at about eight o'clock in the morning of the following day that he decided
to come down. His uncle had counselled him to surrender to the police. The
policemen took Gorriceta to their headquarters. He recounted the incident to a
police investigator.chanroblesvirtualawlibrary chanrobles virtual law library
Victorino Trespeces, whose house was located opposite the house of Valentin Baylon
on Taft Street in Mandurriao, testified that before midnight of January 9, 1966, he
conducted a friend in his car to the housing project in the vicinity of the provincial
hospital at Mandurriao. As he neared his residence, he saw three men emerging
from the canal on Taft Street in front of Baylon's house. He noticed a red Ford
pickup truck parked about fifty yards from the place where he saw the three men.
Shortly thereafter, he espied the three men carrying roosters. He immediately Gorriceta as a state witness. Hence, the case was dismissed as to
repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and him.chanroblesvirtualawlibrary chanrobles virtual law library
Castro what he had just witnessed. The two policemen requested him to take them
in his car to the place where he saw the three suspicious-looking men. Upon arrival
On February 2, 1967, after the prosecution had rested its case and before the
thereat, the men and the truck were not there
defense had commenced the presentation of its evidence, Jaranilla escaped from
anymore.chanroblesvirtualawlibrary chanrobles virtual law library
the provincial jail. The record does not show that he has been
apprehended.chanroblesvirtualawlibrary chanrobles virtual law library
Trespeces and the policemen followed the truck speeding towards Jaro. On reaching
the detour road leading to the airport, the policemen left the car and crossed the
The judgment of conviction was promulgated as to defendants Suyo and Brillantes
runway which was a shortcut. Their objective was to intercept the truck. Trespeces
on October 19, 1967 when it was read to them in court. They signed at the bottom
turned his car around in order to return to Mandurriao. At that moment he heard
of the last page of the decision.
gunshots. He stopped and again turned his car in the direction where shots had
emanated. A few moments later, Patrolman Castro came into view. He was running.
He asked Trespeces for help because Jabatan, his comrade, was wounded. There was no promulgation of the judgment as to Jaranilla, who, as already stated,
Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the escaped from jail (See Sec. 6, Rule 120, Rules of
hospital. Trespeces learned later that Jabatan was Court).chanroblesvirtualawlibrary chanrobles virtual law library
dead.chanroblesvirtualawlibrary chanrobles virtual law library
However, the notice of appeal filed by defendants' counsel de oficio erroneously
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police included Jaranilla. Inasmuch as the judgment has not been promulgated as to
department, conducted an autopsy on the remains of Patrolman Jabatan. He found: Jaranilla, he could not have appealed. His appeal through counsel cannot be
entertained. Only the appeals of defendants Suyo and Brillantes will be
considered.chanroblesvirtualawlibrary chanrobles virtual law library
(1) Contusion on left eyebrow.chanroblesvirtualawlibrary chanrobles virtual law
library
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court
assumed that the taking of the six fighting cocks was robbery and that Patrolman
(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla,
Jabatan was killed "by reason or on the occasion of the robbery" within the purview
directed diagonally downward to the right, perforating the left upper lobe of the
of article 294 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles
lungs through and through, bitting the left pulmonary artery and was recovered at
virtual law library
the right thoracic cavity; both thoracic cavity was full of blood.

In this appeal the appellants contend that the trial court erred in not finding that
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Gorriceta was the one who shot the policeman and that Jaranilla was driving the
Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio,
Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock they further contend that the taking of roosters was theft and, alternatively, that, if
in the morning of January 10, 1966. He discovered that the door of one of his cock it was robbery, the crime could not be robbery with homicide because the robbery
pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were was already consummated when Jabatan was
scattered on the ground. Upon investigation he found that six of his fighting cocks killed.chanroblesvirtualawlibrary chanrobles virtual law library
were missing. Each coop contained six cocks. The coop was made of bamboo and
wood with nipa roofing. Each coop had a door which was locked by means of nails.
After evaluating the testimonies of Gorriceta and Brillantes as to who was driving
The coops were located at the side of his house, about two meters
the truck and who shot policeman, this Court finds that the trial court did not err in
therefrom.chanroblesvirtualawlibrary chanrobles virtual law library
giving credence to Gorriceta's declaration that he was driving the truck at the time
that Jaranilla shot Jabatan.chanroblesvirtualawlibrary chanrobles virtual law library
Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group
of detectives came to his house together with the police photographer who took
The improbability of appellants' theory is manifest. The truck belonged to
pictures of the chicken coops. The six roosters were valued at one hundred pesos
Gorriceta's sister. He was responsible for its preservation. He had the obligation to
each. Two days later, he was summoned to the police station at Mandurriao to
return it to his sister in the same condition when he borrowed it. He was driving it
identify a rooster which was recovered somewhere at the airport. He readily
when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited them for
identified it as one of the six roosters which was stolen from his chicken coop (Exh.
a paseo. There is no indubitable proof that Jaranilla knows how to drive a
B).chanroblesvirtualawlibrary chanrobles virtual law library
truck.chanroblesvirtualawlibrary chanrobles virtual law library

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with
The theory of the defense may be viewed from another angle. If, according to the
the aggravating circumstances of use of a motor vehicle, nocturnity, band,
appellants, Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was
contempt of or with insult to the public authorities and recidivism. The fiscal utilized
drunk then that circumstance would be inconsistent with their theory that Gorriceta
shot Jabatan. Being supposedly intoxicated, Gorriceta would have been dozing when xxx xxx xxx
Jabatan signalled the driver to stop the truck and he could not have thought of
killing Jabatan in his inebriated state. He would not have been able to shoot
In this connection, it is relevant to note that there is an inaccuracy in the English
accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who
translation of article 302. The controlling Spanish original reads:
shot him must have been a sober person like
Jaranilla.chanroblesvirtualawlibrary chanrobles virtual law library
ART. 302. Robo en lugar no habitado o edificio particular.-El robo cometido en un
lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo
Moreover, as Jaranilla and his two comrades were interested in concealing the
primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479).
fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for
shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that
Jaranilla was driving the truck appears to be The term "lugar no habitado" is erroneously translated. as "uninhabited place", a
plausible.chanroblesvirtualawlibrary chanrobles virtual law library term which may be confounded with the expression "uninhabited place" in articles
295 and 300 of the Revised Penal Code, which is the translation of despoblado and
which is different from the term lugar no habitado in article 302. The term lugar no
Was the taking of the roosters robbery or theft? There is no evidence that in taking
habitado is the antonym of casa habitada(inhabited house) in article
the six roosters from their coop or cages in the yard of Baylon's house violence
299.chanroblesvirtualawlibrary chanrobles virtual law library
against or intimidation of persons was employed. Hence, article 294 of the Revised
Penal Code cannot be invoked.chanroblesvirtualawlibrary chanrobles virtual law
library One essential requisite of robbery with force upon things under Articles 299 and 302
is that the malefactor should enter the building or dependency, where the object to
be taken is found. Articles 299 and 302 clearly contemplate that the malefactor
Neither could such taking fall under article 299 of the Revised Penal Code which
should enter the building (casa habitada o lugar no habitado o edificio). If the culprit
penalizes robbery in an inhabited house (casa habitada), public building or edifice
did not enter the building, there would be no robbery with force upon things. (See
devoted to worship. The coop was not inside Baylon's house. Nor was it a
Albert, Revised Penal Code, 1932 edition, p.
dependency thereof within the meaning of article 301 of the Revised Penal
688).chanroblesvirtualawlibrary chanrobles virtual law library
Code.chanroblesvirtualawlibrary chanrobles virtual law library

Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether
the taking of the six roosters is covered by article 302 of the Revised Penal Code
which reads: chanrobles virtual law library
ART. 302. Robbery in an uninhabited place or in private building.-Any robbery
committed in an uninhabited place or in a building other than those mentioned in
the first paragraph of article 299, if the value of the property exceeds 250 pesos,
shall be punished by prision correccional in its medium and maximum periods
provided that any of the following circumstances is present:
1. If the entrance has been effected through any opening not intended for entrance
or egress.chanroblesvirtualawlibrary chanrobles virtual law library
2. If any wall, roof, floor or outside door or window has been
broken.chanroblesvirtualawlibrary chanrobles virtual law library
3. If the entrance has been effected through the use of false keys, picklocks or
other similar tools.chanroblesvirtualawlibrarychanrobles virtual law library
4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has
been broken.chanroblesvirtualawlibrary chanrobles virtual law library
5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has
been removed, even if the same be broken open
elsewhere.chanroblesvirtualawlibrary chanrobles virtual law library
Thus, where the accused broke the show-window of the Bombay Palace Bazar at
Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and
not robbery because he did not enter the building. The show-window was outside
the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor, J., who later
became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken cannot be
considered a building within the meaning of article 302. Not being a building, it
cannot be said that the accused entered the same in order to commit the robbery
by means of any of the five circumstances enumerated in article
302.chanroblesvirtualawlibrary chanrobles virtual law library
The term "building" in article 302, formerly 512 of the old Penal Code, was
construed as embracing any structure not mentioned in article 299 (meaning not an
"inhabited house or public building or edifice devoted to worship" or any
dependency thereof) used for storage and safekeeping of personal property. As thus
construed, a freight car used for the shipment of sugar was considered a private
building. The unnailing of a strip of cloth nailed over the door, the customary
manner of sealing a freight car, was held to constitute breaking by force within the
meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil.
710).chanroblesvirtualawlibrary chanrobles virtual law library
The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of
Spain that a railroad employee who, by force, opens a sealed or locked receptacle
deposited in a freight car, does not commit robbery. He is guilty of theft because
a railroad car is neither a house nor a building within the meaning of article 302
which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers
to houses or buildings which, while not actually inhabited, are habitable. Thus, a pig adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil.
sty is not a building within the meaning of article 302. The stealing of hogs from a 738; People vs. Abalos, 84 Phil. 771).chanroblesvirtualawlibrary chanrobles virtual
pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers law library
to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6,
citing II Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the
The twenty-four year old Jabatan was an agent of authority on night duty at the
Spanish Supreme Court dated March 2, 1886 and April 25, 1887). **
time of the shooting. He was wearing his uniform. The killing should be
characterized as a direct assault (atentado) upon an agent of authority (Art. 148,
As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is Revised Penal Code) complexed with homicide. The two offenses resulted from a
known in the dialect as tangkal or kulungan, is about five yards long, one yard wide single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs.
and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely Lojo, Jr., 52 Phil. 390).chanroblesvirtualawlibrary chanrobles virtual law library
reaches the shoulder of a person of average height like Baylon. It is divided into six
compartments or cages. A compartment has an area of less than one cubic yard. A
The evidence for the prosecution does not prove any conspiracy on the part of
person cannot be accommodated inside the cage or compartment. It was not
appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the
intended that a person should go inside that compartment. The taking was effected
fighting cocks. The conspiracy is shown by the manner in which they perpetrated
by forcibly opening the cage and putting the hands inside it to get the
the theft. They went to the scene of the crime together. They left the yard of
roosters.chanroblesvirtualawlibrary chanrobles virtual law library
Baylon's residence, each carrying two roosters. They all boarded the getaway truck
driven by Gorriceta.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, the taking of the six roosters from their coop should be characterized as
theft and not robbery. The assumption is that the accused were animated by single
The theft was consummated when the culprits were able to take possession of the
criminal impulse. The conduct of the accused reveals that they conspired to steal
roosters. It is not an indispenable element of theft that the thief carry, more or less
the roosters. The taking is punishable as a single offense of theft. Thus, it was held
far away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665;
that the taking of two roosters in the same place and on the same occasion cannot
Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil.
give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of
754).chanroblesvirtualawlibrary chanrobles virtual law library
Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos,
67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L-10239, August 7,
1953).chanroblesvirtualawlibrary chanrobles virtual law library It is not reasonable to assume that the killing of any peace officer, who would
forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime, was
part of their plan. There is no evidence to link appellants Suyo and Brillantes to the
Nocturnity and use of a motor vehicle are aggravating. Those circumstances
killing of Jabatan, except the circumstance that they were with Jaranilla in the truck
facilitated the commission of the theft. The accused intentionally sought the cover of
when the latter shot the policeman. Gorriceta testified that Suyo did not do
night and used a motor vehicle so as to insure the success of their nefarious
anything when Jabatan approached the right side of the truck and came in close
enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil.
proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver
372).chanroblesvirtualawlibrary chanrobles virtual law library
which he did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does
not necessarily make a person a co-principal
Also to be appreciated against appellants Suyo and Brillantes is the aggravating thereof.chanroblesvirtualawlibrary chanrobles virtual law library
circumstance of recidivism which was alleged in the information. They admitted
their previous convictions for theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of
Penal Code).chanroblesvirtualawlibrary chanrobles virtual law library
taking the witness stand to refute the testimony of Gorriceta, Jaranilla escaped from
jail. That circumstance is an admission of
The theft of six roosters valued at six hundred pesos is punishable by prision guilt.chanroblesvirtualawlibrary chanrobles virtual law library
correccional in its minimum and medium periods (Art. 309[3], Revised Penal Code).
That penalty should be imposed in its maximum period because only aggravating
The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim
circumstances are present (Art. 64[3], Revised Penal
was killed on the occasion when the accused took his chickens under the house. It is
Code).chanroblesvirtualawlibrary chanrobles virtual law library
distinguishable from the People vs. Gardon, 104 Phil. 372 and People vs.
Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor General) where the
Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. robbery was clearly proven and the homicide was perpetrated on the occasion of the
They are entitled to an indeterminate sentence (Sec. 2, Act No. robbery. As already noted, theft, not robbery, was committed in this
4103).chanroblesvirtualawlibrary chanrobles virtual law library case.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the killing of Patrolman Jabatan, it has already been noted that the The situation in this case bears some analogy to that found in the People vs.
evidence for the prosecution points to Jaranilla as the malefactor who shot that Basisten, 47 Phil. 493 where the homicide committed by a member of the band was
unfortunate peace officer. The killing was homicide because it was made on the spur not a part of the common plan to commit robbery. Hence, only the person who
of the moment. The treacherous mode of attack was not consciously or deliberately
perpetrated the killing was liable for robbery with homicide. The others were
convicted of robbery only.chanroblesvirtualawlibrary chanrobles virtual law library

There is a hiatus in the evidence of the prosecution as to the participation of Suyo

and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no robbery
with homicide was committed. Therefore, it cannot be concluded that those two
appellants have any responsibility for Jabatan's death. Their complicity in the
homicide committed by Jaranilla has not been
established.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and
Franco Brillantes of robbery with homicide is reversed. They are acquitted of
homicide on the ground of reasonable doubt.chanroblesvirtualawlibrary chanrobles
virtual law library

As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a)
each sentenced to an indeterminate penalty of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision correccional as maximum
and (b) ordered to indemnify solidarily the complainant, Valentin Baylon, in the sum
of five hundred pesos (P500). Each appellant should pay one-third of the
costs.chanroblesvirtualawlibrary chanrobles virtual law library

As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon
an agent of authority, trial court should render a new judgment consistent with this
opinion (See Sec. 19, Art. IV, Constitution).chanroblesvirtualawlibrary chanrobles
virtual law library

So ordered.