G.R. No.

L-18924

October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General
Villa-Real
Eduardo Gutierrez Repide for appellee.

for

appellant.

ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the
Court of First Instance of Manila, sustaining the demurrer presented by the
defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant
vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which
so held and dismissed the case.
The question that presents itself for our consideration is whether such ruling
is erroneous or not; and it will or will not be erroneous according as said
court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction
over crime, like the one herein involved, committed aboard merchant vessels
anchored in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes
committed aboard a foreign merchant vessels should not be prosecuted in
the courts of the country within whose territorial jurisdiction they were
committed, unless their commission affects the peace and security of the
territory; and the English rule, based on the territorial principle and followed
in the United States, according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the country within
territory they were committed. Of this two rules, it is the last one that
obtains in this jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch
[U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would subject
the laws to continual infraction, and the government to degradation, if
such individuals or merchants did not owe temporary and local
allegiance, and were not amenable to the jurisdiction of the
country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or
crime committed on the high seas or within the territorial waters of any
other country, but when she came within three miles of a line drawn
from the headlands, which embrace the entrance to Manila Bay, she
was within territorial waters, and a new set of principles became
applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105;
Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The
ship and her crew were then subject to the jurisdiction of the territorial
sovereign subject to such limitations as have been conceded by that
sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali
and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was
said that:
. . . The principle which governs the whole matter is this: Disorder
which disturb only the peace of the ship or those on board are to be
dealt with exclusively by the sovereignty of the home of the ship, but
those which disturb the public peace may be suppressed, and, if need
be, the offenders punished by the proper authorities of the local
jurisdiction. It may not be easy at all times to determine which of the
two jurisdictions a particular act of disorder belongs. Much will
undoubtedly depend on the attending circumstances of the particular
case, but all must concede that felonious homicide is a subject for the
local jurisdiction, and that if the proper authorities are proceeding with
the case in the regular way the consul has no right to interfere to
prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the

Philippine Islands, aboard a foreign vessel in transit in any local port,
does not, as a general rule, constitute a crime triable by the courts of
the Islands, such vessels being considered as an extension of its own
nationality, the same rule does not apply when the article, the use of
which is prohibited in the Islands, is landed from the vessels upon
Philippine soil; in such a case an open violation of the laws of the land
is committed with respect to which, as it is a violation of the penal law
in force at the place of the commission of the crime, no court other
than that established in the said place has jurisdiction of the offense, in
the absence of an agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to
renouncing such jurisdiction or a part thereof, we find nothing to this effect
so far as England is concerned, to which nation the ship where the crime in
question was committed belongs. Besides, in his work "Treaties, Conventions,
etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United States of America,
and all the territories of His Britanic Majesty in Europe, a reciprocal
liberty of commerce. The inhabitants of the two countries, respectively,
shall have liberty freely and securely to come with their ships and
cargoes to all such places, ports and rivers, in the territories aforesaid,
to which other foreigners are permitted to come, to enter into the
same, and to remain and reside in any parts of the said territories,
respectively; also to hire and occupy houses and warehouses for the
purposes of their commerce; and, generally, the merchants and traders
of each nation respectively shall enjoy the most complete protection
and security for their commerce, but subject always to the laws and
statutes of the two countries, respectively. (Art. 1, Commerce and
Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in
transit was held by this court not triable by or courts, because it being the
primary object of our Opium Law to protect the inhabitants of the Philippines
against the disastrous effects entailed by the use of this drug, its mere
possession in such a ship, without being used in our territory, does not being
about in the said territory those effects that our statute contemplates
avoiding. Hence such a mere possession is not considered a disturbance of
the public order.

But to smoke opium within our territorial limits, even though aboard a foreign
merchant ship, is certainly a breach of the public order here established,
because it causes such drug to produce its pernicious effects within our
territory. It seriously contravenes the purpose that our Legislature has in
mind in enacting the aforesaid repressive statute. Moreover, as the AttorneyGeneral aptly observes:
. . . The idea of a person smoking opium securely on board a foreign
vessel at anchor in the port of Manila in open defiance of the local
authorities, who are impotent to lay hands on him, is simply subversive
of public order. It requires no unusual stretch of the imagination to
conceive that a foreign ship may come into the port of Manila and
allow or solicit Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the
court of origin for further proceedings in accordance with law, without special
findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ.,
concur.
THE UNITED STATES, Plaintiff-Appellee, vs. LOOK CHAW ( alias LUK
CHIU),Defendant-Appellant.
Thos.
D.
Aitken
Attorney-General Villamor for appellee.

for

appellant.

ARELLANO, C.J. :chanrobles virtual law library

This case is a separate part of Case No. 5887 and bears No. 5889 on the
general docket of this court, and No. 377 on the docket of the Court of First
Instance of Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
The complaint in this case states:
That, on or about the 18th of August, 1909, within the boundaries of the
municipality of Cebu of this province and judicial district, the said Look Chaw
(alias Luk Chiu) did, without having obtained authorization from the Collector
of Internal Revenue and without being authorized in any manner and traffic
in the same.

C.J. Milliron, an internal-revenue agent, testified that Vicente Base took to the
governor of Cebu a can of opium containing 200 grammes of the said drug,
in order to show him that the accused had sold opium to Base, and the
governor called the witness in order that he might take part in this case.
After the accused was arrested, he confessed before the witness and the
provincial fiscal that he had sold to Vicente Base thirty cans of opium on the
15th of August, 1909, but that he had received the price thereof, and that
the money which was found in a box of his on board the British
steamship Erroll, P1,500 in amount, was obtained in Manila and was seized
by the captain of the vessel. According to the accused, he had purchased in
Hongkong 137 cans of opium for the purpose of introducing it as contraband
into Mexico, the destination of the vessel, but that as the latter changed its
route
touching
first
at
Manila,
the
opium
arrived
at
Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
Vicente Base testified that he had negotiated with the accused with respect
to the sale of the three sacks of opium which were seized while in the latter's
possession an were the subject matter of the previous cause; that these
three sacks were not taken ashore, because the accused would not permit
this to be done without previous delivery of the whole price of P1,000, of
which witness had only paid P533; that he therefore only took one can from
one of the said sacks.chanroblesvirtualawlibrary chanrobles virtual law
library
The Court of First Instance of Cebu sentenced the accused to one year's
imprisonment and the payment of a fine of P2,000, with additional subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal
penalty, and to the payment of the costs of the trial. It was ordered in the
judgment that the exhibits connected with the case should be confiscated,
and that, in case of an appeal, and even after the sentence had been served,
the defendant should not be released from custody, but delivered to the
customs authorities for the purpose of the enforcement of the existing
immigration laws.chanroblesvirtualawlibrarychanrobles virtual law library
The defendant appealed and has alleged before this court that he can not
punished in accordance with section 15 of Act No. 1761, under which the
complaint was drawn.chanroblesvirtualawlibrary chanrobles virtual law
library
This said section 15 reads thus:

( a) No person shall import, cook, or prepare opium, or engage in the

business of purchasing or selling opium or of dealing or trafficking therein,
unless he shall first have secured from the Collector of Internal Revenue a
license to transact such business and shall have paid the license tax
prescribed by this Act. . . .
To make an isolated sale, says the appellant, is not to engage in the business
of selling. To negotiate the sale of opium does not mean clandestinely to sell
opium once.chanroblesvirtualawlibrary chanrobles virtual law library
In our opinion, the act defined in section 15 is distinct from that penalized in
section 5; the act referred to in the latter is any act of sale, while that
concerned in the former relates to the business of selling, in an habitual,
professional manner, as one of an undertaking or occupation, without
license.
SEC. 5. ( a) It shall be unlawful to sell, transfer, give, or deliver opium to any
person except to a duly licensed and practicing physician, pharmacist, or
second-class pharmacist, or a duly licensed dispensator of opium, or duly
registered confirmed user of opium in a licensed opium dispensary for
consumption therein only, and in accordance with the provisions of this Act: .
. .chanroblesvirtualawlibrary chanrobles virtual law library
( b) Any person violating the provisions of the preceding subsection shall be
punished by a fine not exceeding one thousand pesos, or by imprisonment
for a period not exceeding one year, or both such fine and imprisonment, in
the discretion of the court: . . .
The crime concerned in this case, according to this section 5, is compromised
within the language of the complaint which charges the act of selling opium
without
the
authorization
of
the
Collector
of
Internal
Revenue.chanroblesvirtualawlibrary chanrobles virtual law library
The other ground of the appeal is that the confession of the accused were
taken into account for the purpose of his conviction. The trial court
pronounced its sentence after considering that "sufficient proof has been
furnished by the evidence,' and the evidence did not consist solely in the
confession that the accused, on the day and at the place mentioned in the
complaint, contracted with Vicente Base for the sale of the opium, the
subject matter of the present prosecution; and as this finding does not
appear to be erroneous nor contrary to the conclusions reached from the

evidence, it is accepted by this court in order that thereby the judgment

appealed from may be dully affirmed, as we do affirm the
same.chanroblesvirtualawlibrary chanrobles virtual law library
This disposes of the appeal; but, in the opinion of this court, the defense of
double jeopardy alleged by the accused in first instance, with exception to
the order disallowing it, can not but be taken into consideration, although in
this instance, on appeal, that defense was not reproduced with the allegation
that its disallowance was an error committed by the lower court in its
judgment.
This
point
appears
to
involve
a
question
of
jurisdiction.chanroblesvirtualawlibrarychanrobles virtual law library
Before separating the two causes, as related at the beginning of this
decision, there was but one single complaint and there would have been only
one trial for the possession of opium and for the sale of opium. But the
defendant's counsel set up a demurrer, arguing that the complaint was
defective inasmuch as it charged two distinct crimes, for according to the
defense, it was alleged to be one crime to possess opium and another
different crime to sell opium; and the court deferred to this pretension and
ordered the filing of two complaints, one for the possession of opium and
another for the sale of opium; that for the possession of opium was the one
first tried by the lower court.chanroblesvirtualawlibrary chanrobles virtual
law library
In answering the second complaint for the sale of opium, the defendant
alleged that he had already been in jeopardy.
The defendant was convicted yesterday," said his attorney, "for the violation
of law committed, of possessing opium, and has already been sentenced by
this court to five year's imprisonment and in addition to pay a fine of ten
thousand pesos. According to the principles of penal law, when a crime has
been committed which is necessary in order to commit another, the
delinquent, of course, can not be punished for the two crimes, but must
suffer for the crime for which the greater penalty was provided.
The court rejected this allegation: first, because the prosecution of two
crimes instead of one was brought about by the defense itself; and second,
because, in the opinion of the trial judge, if the defendant had first been
convicted for selling opium, he certainly would have been in jeopardy in the
cause prosecuted for possessing opium, for the reason that really one can
not sell opium without possessing it, while, if the terms are inverted, the

same result does not follow, because one may posses opium without selling
it, and consequently in the present cause the allegation of double jeopardy is
an admissible.chanroblesvirtualawlibrary chanrobles virtual law library
True it is, we assert, that it is one crime to possess opium, punished by
section 31 of the Act, and another, to sell opium, penalized by section 5 of
the same Act before cited.chanroblesvirtualawlibrary chanrobles virtual law
library
And it is also true that when one single act constitutes two or more crimes,
or when one of them is a necessary means for the commission of the other,
only the penalty corresponding to the more serious crime shall be imposed,
in its maximum degree, and thus, he who smokes opium in a pipe, by one
single act lays himself liable to three penalties of the law, one of them,
merely for the fact of possessing opium, another, for the mere possession of
a pipe in which opium is smoked, and the other, for the act of smoking
opium; but the penalties corresponding to these three crimes ought not to be
imposed upon the defendant in this case, and only the penalty for the most
serious of these crimes.chanroblesvirtualawlibrary chanrobles virtual law
library
But the illegal possession of 137 cans of opium and the illegal sale of 30 cans
of opium, which are two acts confessed by the accused, are not one act
which constitutes two crimes, nor a crime which is a necessary means for the
commission of another. They are two isolated acts, punishable, each of them,
in themselves. Only in the event where all the amount of the opium
possessed and seized be in its totality the same as that which was possessed
with the sole purpose of being delivered as the matter or subject of a sale
previously agree upon, could it be said, in the opinion of this court, that the
possession of the opium was a necessary means to effect the delivery by
reason of the sale, and that the sale agreed upon was the sole reason for the
possession of the opium seized. The possession of the quantity contained in
the pipe can not be considered as a different crime from that of smoking
opium in a pipe, nor the possession of the pipe, as a crime different from that
of smoking opium in a pipe. But if the person surprised in smoking opium in a
pipe was also surprised in the possession of the thirty cans sold by the
accused, it could not properly be inferred that the possession of these thirty
cans, which in itself is a crime, was a necessary means for the commission of
the other crime of smoking opium in a pipe, and that the person in whose
possession the thirty cans were seized, possessed the same solely and

exclusively for the purpose of smoking opium in a pipe. It might very well
have been that he had acquired the drug for the purpose of inhaling,
injecting, chewing, swallowing, or other uses, and that only by chance did it
occur to him to try to smoke it in a pipe, on the very occasion when he was
surprised, this being the evident fact of the commission of the crime which
can not, in its essence, include the existence of thirty cans, not then
contained in the pipe, each can certainly being susceptible of other various
uses, every one of which might by its nature constitute a different
crime.chanroblesvirtualawlibrary chanrobles virtual law library
We consider this doctrine equally applicable to crimes which are evils by
their very nature, as well as to those which are merely malum quia
prohibitum; because it not only aims at a more or less strict application of a
penal precept which, undoubtedly, in the practice of this court, usually tends
toward the lesser severity and, occasionally, the greatest benignity when the
second class, or conventional crimes, are concerned, but also because that
doctrine is the logical result of the process of the intelligence in the
derivation of consequences from the principles constitute of the nature of
things.chanroblesvirtualawlibrary chanrobles virtual law library
Thus it is that we find the institution of this cause, and its separation from
the previous one, to be founded on law and juridical principles, and the
judgment appealed from, to be in accordance with right and equity, except
with regard to the amount of the penalty, which we reduce, in harmony with
the provisions of section 5 aforementioned, to six months' imprisonment and
a fine of P1,000 Philippine currency.chanroblesvirtualawlibrary chanrobles
virtual law library
Therefore, with the understanding that the imprisonment and the fine
imposed shall be, respectively, six months and P1,000 Philippine Currency,
we affirm, as to all the rest, the judgment appealed from, with the costs of
this
instance
against
the
appellant.
So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
G.R. No. L-13005

October 10, 1917

THE
UNITED
vs.
AH SING, defendant-appellant.

STATES, plaintiff-appellee,

Antonio
Sanz
for
Acting Attorney-General Paredes for appellee.

appellant.

MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu
finding the defendant guilty of a violation of section 4 of Act No. 2381 (the
Opium Law), and sentencing him to two years imprisonment, to pay a fine of
P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay
the costs.
The following facts are fully proven: The defendant is a subject of China
employed as a fireman on the steamshipShun Chang. The Shun Chang is a
foreign steamer which arrived at the port of Cebu on April 25, 1917, after a
voyage direct from the port of Saigon. The defendant bought eight cans of
opium in Saigon, brought them on board the steamship Shun Chang, and had
them in his possession during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April 25, 1917, the authorities on
making a search found the eight cans of opium above mentioned hidden in
the ashes below the boiler of the steamer's engine. The defendant confessed
that he was the owner of this opium, and that he had purchased it in Saigon.
He did not confess, however, as to his purpose in buying the opium. He did
not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that the
intention of the accused was to import illegally this opium into the Philippine
Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands been
proven?
Two decisions of this Court are cited in the judgment of the trial court, but
with the intimation that there exists inconsistently between the doctrines laid
down in the two cases. However, neither decision is directly a precedent on
the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the
opinion handed down by the Chief Justice, it is found

That, although the mere possession of a thing of prohibited use in

these Islands, aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by the
courts of this country, on account of such vessel being considered as
an extension of its own nationality, the same rule does no apply when
the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine
soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the
place of the commission of the crime, only the court established in the
said place itself has competent jurisdiction, in the absence of an
agreement under an international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts
in the present instance is readily observable. In the Look Chaw case, the
charge case the illegal possession and sale of opium in the present case
the charge as illegal importation of opium; in the Look Chaw case the foreign
vessel was in transit in the present case the foreign vessel was not in
transit; in the Look Chaw case the opium was landed from the vessel upon
Philippine soil in the present case of United States vs. Jose ([1916], 34
Phil., 840), the main point, and the one on which resolution turned, was that
in a prosecution based on the illegal importation of opium or other prohibited
drug, the Government must prove, or offer evidence sufficient to raise a
presumption, that the vessel from which the drug is discharged came into
Philippine waters from a foreign country with the drug on board. In the Jose
case, the defendants were acquitted because it was not proved that the
opium was imported from a foreign country; in the present case there is no
question but what the opium came from Saigon to Cebu. However, in the
opinion in the Jose case, we find the following which may be obiter dicta, but
which at least is interesting as showing the view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying
it anchored in Subic Bay. It was not necessary that the opium
discharged or that it be taken from the ship. It was sufficient that the
opium was brought into the waters of the Philippine Islands on a boat
destined for a Philippine port and which subsequently anchored in a
port of the Philippine Islands with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just
quoted, we return to an examination of the applicable provisions of the law. It

is to be noted that section 4 of Act No. 2381 begins, "Any person who shall
unlawfully import or bring any prohibited drug into the Philippine Islands."
"Import" and "bring" are synonymous terms. The Federal Courts of the United
States have held that the mere act of going into a port, without breaking
bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas.,
932, 933.) And again, the importation is not the making entry of goods at the
custom house, but merely the bringing them into port; and the importation is
complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed.
Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the
Opium Law, we expressly hold that any person unlawfully imports or brings
any prohibited drug into the Philippine Islands, when the prohibited drug is
found under this person's control on a vessel which has come direct from a
foreign country and is within the jurisdictional limits of the Philippine Islands.
In such case, a person is guilty of illegal importation of the drug unless
contrary circumstances exist or the defense proves otherwise. Applied to the
facts herein, it would be absurb to think that the accused was merely
carrying opium back and forth between Saigon and Cebu for the mere
pleasure of so doing. It would likewise be impossible to conceive that the
accused needed so large an amount of opium for his personal use. No better
explanation being possible, the logical deduction is that the defendant
intended this opium to be brought into the Philippine Islands. We accordingly
find that there was illegal importation of opium from a foreign country into
the Philippine Islands. To anticipate any possible misunderstanding, let it be
said that these statements do not relate to foreign vessels in transit, a
situation not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being within
the limits provided by law, it results that the judgment must be affirmed with
the costs of this instance against the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
Adm. Case No. 3086 February 23, 1988
ALEXANDER
PADILLA, complainant,
vs.
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial
Court of Pasay City Branch 113,respondent.
RESOLUTION

PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the then
Commissioner of Customs, Alexander Padilla, against respondent Baltazar R.
Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly
erroneous decision due, at the very least, to gross incompetence and gross
ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of
the Philippines vs. Lo Chi Fai", acquitting said accused of the offense
charged, i.e., smuggling of foreign currency out of the country.
Required by the Court to answer the complaint, the respondent judge filed an
Answer, dated October 6, 1987, reciting his "commendable record as a
fearless prosecutor" since his appointment as Assistant City Fiscal of Manila
on December 4, 1962, until his appointment eventually as RTC Judge on
February 18, 1983; that at in the reorganization of the judiciary after the
February 26, 1986 revolution, he was reappointed to his present position;
that his length of service as prosecutor and judge is "tangible proof that
would negate the allegations of the petitioner" (should be complainant),
whereas the latter did not last long in the service for reasons only known to
him; that the decision involved in the complaint was promulgated by
respondent on September 29, 1986, but the complaint against him was filed
only on August 6, 1987, a clear indication of malice and ill-will of the
complainant to subject respondent to harassment, humiliation and
vindictiveness; that his decision, of which he submits a copy (Annex A) as
part of his Answer, is based on "fundamental principles and the foundation of
rights and justice" and that if there are mistakes or errors in the questioned
decision, they are committed in good faith. Accordingly, respondent prays for
the dismissal of the petition (should be complaint).
The issue before the Court is whether or not the respondent judge is guilty of
gross incompetence or gross ignorance of the law in rendering the decision
in question. A judge can not be held to account or answer, criminally, civilly
or administratively, for an erroneous decision rendered by him in good faith.
The case in which the respondent rendered a decision of acquittal involved a
tourist, Lo Chi Fai, who was caught by a Customs guard at the Manila
International Airport while attempting to smuggle foreign currency and
foreign exchange instruments out of the country. Lo Chi Fai, was
apprehended by a customs guard and two PAFSECOM officers on July 9,
1986, while on board Flight PR 300 of the Philippine Air Lines bound for
Hongkong. At the time of his apprehension, he was found carrying with him
foreign currency and foreign exchange instruments (380 pieces) amounting
to US$ 355,349.57, in various currency denominations, to wit: Japanese Yen,
Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc,

U.S. Dollar, English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar
and Hongkong Dollar, without any authority as provided by law. At the time
the accused was apprehended, he was able to exhibit two currency
declarations which he was supposed to have accomplished upon his arrival in
Manila in previous trips, namely, CB Currency Declaration No. 05048, dated
May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB
Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen
6,600,000.00.
An information was filed against Lo Chi Fai, with the RTC of Pasay City for
violation of Sec. 6, Central Bank Circular No. 960, as follows:
That on or about the 9th day of July, 1986, in the City of Pasay,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Mr. LO CHI FAI, did
then and there wilfully, unlawfully and feloniously attempt to
take out of the Philippines through the Manila International
Airport the following foreign currencies in cash and in checks:

Japanese Yen

Y 32,800,000.00

Swiss Franc

SW. FR 6,9000.00

Australian Dollar

A$ 17,425.00

Singapore Dollar

S$ 9,945.00

Deutsche Marck

DM 18,595.00

Canadian Dollar

CS 13,330.00

Hongkong Dollar

HK$ 15,630.00

HFL Guilder

HFL 430.00

French Franc

F/6,860.00

US Dollar

US$ 73,950.00

English Pound

5,318.00

Malaysian Dollar

M$. 14,760.00

(in checks)

Australian Dollar

A$ 7,750.00

British Pound

700.00

US Dollar

US$ 17,630.00

Canadian Dollar

C$ 990.00

without authority from the Central Bank.

Contrary to Law.
The case, which was docketed as Criminal Case No. 86-10126-P, was
subsequently raffled to Branch 113, presided by herein respondent Judge
Baltazar A. Dizon.

Section 6 of Circular No. 960 of the Central Bank provides as follows:

Sec. 6. Export, import of foreign exchange; exceptions. No
person shall take out or transmit or attempt to take out or
transmit foreign exchange in any form, out of the Philippines
directly, through other persons, through the mails or through
international carriers except when specifically authorized by the
Central Bank or allowed under existing international agreements
or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from
the Philippine foreign exchange in amounts not exceeding such
amounts of foreign exchange brought in by them. For purposes
of establishing the amount of foreign exchange brought in or out
of the Philippines, tourists and non-resident temporary visitors
bringing with them more than US$3,000.00 or its equivalent in
other foreign currencies shall declare their foreign exchange in
the form prescribed by the Central Bank at points of entries upon
arrival in the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which reads as
follows:
Section 1. Blackmarketing of Foreign Exchange . That any
person who shall engage in the trading or purchase and sale of
foreign currency in violation of existing laws or rules and
regulations of the Central Bank shall be guilty of the crime of
blackmarketing of foreign exchange and shall suffer the penalty
of reclusion temporal, (minimum of 12 years and I day and
maximum of 20 years) and a fine of no less than fifty thousand
(P50,000.00) Pesos.
At the trial, the accused tried to establish that he was a businessman from
Kowloon, Hongkong, engaged in the garment business, in which he had
invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines
9 to 1 0 times, although the only dates he could remember were April 2,
1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his
coming to the Philippines was to invest in business in the Philippines and also
to play in the casino; that he had a group of business associates who decided
to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo,
Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in
Japan and Hongkong; that when he came to the Philippines on April 2,1986,
he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to
declare but the Central Bank representative refused to accept his
declaration, until he could get a confirmation as to the source of the money,
for which reason he contacted his bank in Hongkong and a telex was sent to

him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and
4,000,000.00 Japanese Yen when he arrived on May 4,1986 which he
declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when he
arrived on June 28, 1986 (Exh. 2). He also testified that his business
associates, as per their agreement to invest in some business with him in the
Philippines, started putting their money for this purpose in a common fund,
hence, every time anyone of them came to the Philippines, they would
declare the money they were bringing in, and all declarations were handed
to and kept by him; these currency declarations were presented at the trial
as exhibits for the defense. When asked by the court why he did not present
all of these declarations when he was apprehended at the airport, his answer
was that he was not asked to present the declaration papers of his
associates, and besides, he does not understand English and he was not told
to do so. He also testified on cross-examination that the reason he was going
back to Hongkong bringing with him all the money intended to be invested in
the Philippines was because of the fear of his group that the "revolution"
taking place in Manila might become widespread. It was because of this fear
that he was urged by his associates to come to Manila on July 8, 1986 to
bring the money out of the Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not
the accused wilfully violated Section 6 of Circular No. 960. The
fact that the accused had in his possession the foreign currencies
when he was about to depart from the Philippines did not by that
act alone make him liable for Violation of Section 6.
What is imperative is the purpose for which the act of bringing
foreign currencies out of the country was done the very
intention. It is that which qualifies the act as criminal or not.
There must be that clear intention to violate and benefit from the
act done. Intent is a mental state, the existence of which is
shown by overt acts of a person.
The respondent proceeded to analyze the evidence which, according to him,
tended to show that the accused had no wilfull intention to violate the law.
According to the respondent in his decision:
... this Court is persuaded to accept the explanation of the
defense that the currencies confiscated and/or seized from the
accused belong to him and his business associates abovenamed.
And from the unwavering and unequivocal testimonies of Mr.
Templo and all of currencies in question came from abroad and
not from the local source which is what is being prohibited by the
government. Yes, simply reading the provisions of said circular

will, readily show that the currency declaration is required for the
purpose of establishing the amount of currency being brought by
tourist or temporary non-resident visitors into the country. The
currency declarations, therefore, is already (sic) intended to
serve as a guideline for the Customs authorities to determine the
amounts actually brought in by them to correspond to the
amounts that could be allowed to be taken out. Indeed, this
Court is amazed and really has its misgivings in the manner
currency declarations were made as testified to by the Central
Bank employees. Why the Bureau of Customs representative
never took part in all these declarations testified to by no less
than five (5) Central Bank employees? Seemingly, these
employees are the favorites of these travellers. It is the hope of
this Court that the authorities must do something to remedy the
evident flaw in the system for effective implementation of the
questioned Central Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin
criminal responsibility on the accused. This is due to its steadfast
adherence and devotion to the rule of law-a factor in restoring
the almost lost faith and erosion of confidence of the people in
the administration of justice. Courts of Justice are guided only by
the rule of evidence.
The respondent-judge has shown gross incompetence or gross ignorance of
the law in holding that to convict the accused for violation of Central Bank
Circular No. 960, the prosecution must establish that the accused had the
criminal intent to violate the law. The respondent ought to know that proof of
malice or deliberate intent (mens rea) is not essential in offenses punished
by special laws, which are mala prohibita. In requiring proof of malice, the
respondent has by his gross ignorance allowed the accused to go scot free.
The accused at the time of his apprehension at the Manila International
Airport had in his possession the amount of US$355,349.57 in assorted
foreign currencies and foreign exchange instruments (380 pieces), without
any specific authority from the Central Bank as required by law. At the time
of his apprehension, he was able to exhibit only two foreign currency
declarations in his possession. These were old declarations made by him on
the occasion of his previous trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case for
violation of Central Bank Circular No. 960, the respondent nonetheless chose
to exonerate the accused based on his defense that the foreign currency he
was bringing out of the country at the time he was apprehended by the
customs authorities were brought into the Philippines by him and his alleged
business associates on several previous occasions when they came to the
Philippines, supposedly to be used for the purpose of investing in some

unspecified or undetermined business ventures; that this money was kept in

the Philippines and he precisely came to the Philippines to take the money
out as he and his alleged business associates were afraid that the
"attempted revolution" which occurred on July 6,1986 might spread. Such
fantastic tale, although totally irrelevant to the matter of the criminal liability
of the accused under the information, was swallowed by the respondentjudge "hook, line and sinker." It did not matter to the respondent that the
foreign currency and foreign currency instruments found in the possession of
the accused when he was apprehended at the airport-380 pieces in all-and
the amounts of such foreign exchange did not correspond to the foreign
currency declarations presented by the accused at the trial. It did not matter
to the respondent that the accused by his own story admitted, in effect, that
he was a carrier" of foreign currency for other people. The respondent closed
his eyes to the fact that the very substantial amounts of foreign exchange
found in the possession of the accused at the time of his apprehension
consisted of personal checks of other people, as well as cash in various
currency denominations (12 kinds of currency in all), which clearly belied the
claim of the accused that they were part of the funds which he and his
supposed associates had brought in and kept in the Philippines for the
purpose of investing in some business ventures. The respondent ignored the
fact that most of the CB Currency declarations presented by the defense at
the trial were declarations belonging to other people which could not be
utilized by the accused to justify his having the foreign exchange in his
possession. Although contrary to ordinary human experience and behavior,
the respondent judge chose to give credence to the fantastic tale of the
accused that he and his alleged business associates had brought in from
time to time and accumulated and kept in the Philippines foreign exchange
(of very substantial amounts in cash and checks in various foreign currency
denominations) for the purpose of investing in business even before they
knew and had come to an agreement as to the specific business venture in
which they were going to invest. These and other circumstances which make
the story concocted by the accused so palpably unbelievable as to render
the findings of the respondent judge obviously contrived to favor the
acquittal of the accused, thereby clearly negating his claim that he rendered
the decision "in good faith." His actuations in this case amount to grave
misconduct prejudicial to the interest of sound and fair administration of
justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision the
release to the accused of at least the amount of US$3,000.00, allowed,
according to respondent, under Central Bank Circular No. 960. This, in spite
of the fact that forfeiture proceedings had already been instituted by the
Bureau of Customs over the currency listed in the information, which
according to the respondent should be respected since the Bureau of
Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture
of the property involved in the alleged infringements of the aforesaid Central

Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the
release of US$ 3,000.00 to the accused, the respondent judge again
displayed gross incompetence and gross ignorance of the law. There is
nothing in the said CB Circular which could be taken as authority for the trial
court to release the said amount of U.S. Currency to the accused. According
to the above-cited CB Circular, tourists may take out or send out from the
Philippines foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them; for the purpose of establishing such
amount, tourists or non-resident temporary visitors bringing with them more
than US$3,000.00 or its equivalent in other foreign currencies must declare
their foreign exchange at points of entries upon arrival in the Philippines. In
other words, CB Circular No. 960 merely provides that for the purpose of
establishing the amount of foreign currency brought in or out of the
Philippines, a tourist upon arrival is required to declare any foreign exchange
he is bringing in at the time of his arrival, if the same exceeds the amount of
US$3,000.00 or its equivalent in other foreign currencies. There is nothing in
said circular that would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out foreign exchange in
excess of said amount without specific authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge,
Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the law
and grave and serious misconduct affecting his integrity and efficiency, and
consistent with the responsibility of this Court for the just and proper
administration of justice and for the attainment of the objective of
maintaining the people's faith in the judiciary (People vs. Valenzuela, 135
SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED
from the service. All leave and retirement benefits and privileges to which he
may be entitled are hereby forfeited with prejudice to his being reinstated in
any branch of government service, including government-owned and/or
controlled agencies or corporations.
This resolution is immediately executory.
SO ORDERED.
G.R. No. L-16486

March 22, 1921

THE
UNITED
STATES, plaintiff-appelle,
vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel
Roco
Acting Attorney-General Feria for appellee.

for

appellant.

STREET, J.:
The rather singular circumstances attending the commission of the offense
of homicide which is under discussion in the present appeal are these:
At about noon, on November 29, 1919, while the interisland
steamer Vigan was anchored in the Pasig River a short distance from the
lighthouse and not far from where the river debouches into the Manila Bay, a
small boat was sent out to raise the anchor. The crew of this boat consisted
of the accused, Calixto Valdez y Quiri, and six others among whom was the
deceased, Venancio Gargantel. The accused was in charge of the men and
stood at the stern of the boat, acting as helmsman, while Venancio Gargantel
was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy
the accused, and he accordingly began to abuse the men with offensive
epithets. Upon this Venancio Gargantel remonstrated, saying that it would be
better, and they would work better, if he would not insult them. The accused
took this remonstrance as a display of insubordination; and rising in rage he
moved towards Venancio, with a big knife in hand, threatening to stab him.
At the instant when the accused had attained to within a few feet of
Venancio, the latter, evidently believing himself in great and immediate peril,
threw himself into the water and disappeared beneath its surface to be seen
no more.
The boat in which this incident took place was at the time possibly 30 or 40
yards from shore and was distant, say, 10 paces from the Vigan. Two scows
were moored to the shore, but between these and the boat intervened a
space which may be estimated at 18 or 20 yards. At it was full midday, and
there was nothing to obstruct the view of persons upon the scene, the failure
of Venancio Gargantel to rise to the surface conclusively shows that, owing
to his possible inability to swim or the strength of the current, he was borne
down into the water and was drowned.
Two witnesses who were on the boat state that, immediately after Venancio
leaped into the water, the accused told the remaining members of the crew
to keep quiet or he would kill them. For this reason they made no movement
looking to rescue; but inasmuch as there witnesses are sure that Venancio
did not again come to the surface, efforts at rescue would have been
fruitless. The fact that the accused at his juncture threatened the crew with

violence is, therefore, of no moment except tho show the temporary

excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself near
the lighthouse to watch for the body, in the hope that it might come to the
surface and could thus be recovered. Though his friendly vigil lasted three
days nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila,
where he lived as a bachelor in the house of an acquaintance; and his
personal belongings have been delivered to a representative of his mother
who lives in the Province of Iloilo. His friends and relatives, it is needless to
say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to exclude all
reasonable possibility that Venancio Gargantel may have survived; and we
think that the trial judge did not err in holding that he is dead and that he
came to his death by drowning under the circumstances stated. The proof is
direct that he never rose to the surface after jumping into the river, so far as
the observers could see; and this circumstance, coupled with the known fact
that human life must inevitably be extinguished by asphyxiation under
water, is conclusive of his death. The possibility that he might have swum
ashore, after rising in a spot hidden from the view of his companions, we
consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus occasioned
the likewise can be no doubt; for it is obvious that the deceased, in throwing
himself in the river, acted solely in obedience to the instinct of selfpreservation and was in no sense legally responsible for his own death. As to
him it was but the exercise of a choice between two evils, and any
reasonable person under the same circumstances might have done the
same. As was once said by a British court, "If a man creates in another man's
mind an immediate sense of dander which causes such person to try to
escape, and in so doing he injuries himself, the person who creates such a
state of mind is responsible for the injuries which result." (Reg. vs. Halliday,
61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of
July 13, 1882, is cited in the brief of The Attorney-General, as follows: It
appeared that upon a certain occasion an individual, after having inflicted
sundry injuries upon another with a cutting weapon, pointed a shotgun at the

injured person and to escape the discharge the latter had to jump into a river
where he perished by drowning. The medical authorities charged with
conducting the autopsy found that only one of the wounds caused by a cut
could have resulted in the death of the injured person, supposing that he had
received no succour, and that by throwing himself in the river he in fact died
of asphyxia from submersion. Having been convicted as the author of the
homicide, the accused alleged upon appeal that he was only guilty of the
offense of inflicting serious physical injuries, or at most of frustrated
homicide. The Supreme Court, disallowing the appeal, enunciated the
following doctrine: "That even though the death of the injured person should
not be considered as the exclusive and necessary effect of the very grave
wound which almost completely severed his axillary artery, occasioning a
hemorrhage impossible to stanch under the circumstances in which that
person was placed, nevertheless as the persistence of the aggression of the
accused compelled his adversary, in order to escape the attack, to leap into
the river, an act which the accused forcibly compelled the injured person to
do after having inflicted, among others, a mortal wound upon him and as the
aggressor by said attack manifested a determined resolution to cause the
death of the deceased, by depriving him of all possible help and putting him
in the very serious situation narrated in the decision appealed from, the trial
court, in qualifying the act prosecuted as consummated homicide, did not
commit any error of law, as the death of the injured person was due to the
act of the accused." (II Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the
death of Venancio Gargantel, and he was properly convicted of the offense of
homicide. The trial judge appreciated as an attenuating circumstance the
fact that the offender had no intention to commit so great a wrong as that
committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the
judge sentenced the accused to undergo imprisonment for twelve years and
one day, reclusion temporal, to suffer the corresponding accessories, to
indemnify the family of the deceased in the sum of P500, and to pay the
costs. Said sentenced is in accordance with law; and it being understood that
the accessories appropriate to the case are those specified in article 59 of
the Penal Code, the same is affirmed, with costs against the appellant. So
ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.

G.R. No. 35006, People v. Almonte, 56 Phil. 54

Republic
of
the
SUPREME
Manila
EN BANC

Philippines
COURT

September 7, 1931
G.R.
No.
35006
THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PURIFICACION ALMONTE, defendant- appellant.
Teodosio
R.
Dio
for
appellant.
Attorney-General Jaranilla for appellee.
IMPERIAL, J.:
Purificacion Almonte is charged with the crime of homicide, the information
reading as follows:
The undersigned provincial fiscal charges Purificacion Almonte with the crime
of homicide, committed as follows:
That on or about October 1, 1930, in the municipality of Sorsogon, Province
of Sorsogon, Philippine Islands, and within the jurisdiction of this court, the
aforementioned accused did willfully, unlawfully, and feloniously beat,
attack, and assault one Felix Te Sue with a knife, which she carried,
producing a wound in the abdomen which was the immediate cause of the
death of the said Felix Te Sue.
Contrary to law.
Sorsogon, Sorsogon, November 7, 1930.
(Sgd.)
JACINTO
YAMZON
Provincial Fiscal
The accused pleaded not guilty, and after the trial, at which she was
represented by counsel, she was convicted of the said crime of homicide,
and sentenced to fourteen years, eight months, and one day of reclusion

temporal, to indemnify the heirs of the deceased in the sum of P1,000, and
to pay the costs. The defendant appealed.
The facts which have been proved beyond question are as follows:
Until a week before the crime, the accused lived maritally with the Chinaman
Felix Te Sue who was a married man. Because one Miguela Dawal, with
whom he had also lived maritally, threatened to bring suit against him unless
he rejoined her, the Chinaman and the accused voluntarily agreed to
separate. From that time on Te Sue lived in the barrio of Guinlajon,
municipality of Sorsogon, Province of Sorsogon, together with the said
Miguela Dawal. On the morning of October 1, 1930, the accused visited her
former paramour and on entering the house, found him with Miguela. When
Te Sue saw her, he approached and told her to go away at once because her
new paramour might get jealous and do her harm. The accused insisted upon
remaining, and on being pushed by Te Sue and Miguela, feeling that she was
being unjustly treated, took hold of a small penknife she carried and stabbed
the man in the abdomen. Horrified, perhaps, at her deed, she fled to the
street, leaving the blade sticking in her victim's abdomen, and, taking the
first bus that chanced to pass, finally went home. The injured man was at
once taken to the provincial hospital where he was given first aid treatment,
and Doctor Ortega performed a slight operation upon him, cleaning and
sewing up his wound. It was not serious, according to the doctor, and might
be healed in a week; but on the sixth day the patient succumbed to
complications which we shall treat of later on. The relatives of the deceased
paid a little over P200 for the hospital treatment and the expenses of his last
illness.
In this instance the defense assigns the following alleged errors as
committed by the trial court in its judgment:
I. The trial court erred in holding that the unnecessary movements of the
deceased while in the provincial hospital of Sorsogon for medical treatment
were caused by the pain of the wound inflicted by the accused.
II. The trial court erred in holding the accused criminally responsible for the
secondary hemorrhage which caused the death of the deceased.

III. The trial court erred in holding the accused responsible for the death of
the offended party as the direct and immediate consequence of the wound
inflicted by the accused.
IV. The trial court erred in holding the accused of the crime of homicide as
charged in the information instead of lesiones leves as supported by the
evidence in this case.
The first three assignments of error raise questions of fact and what really
caused the death of the deceased. It is strongly argued that the judgment
appealed from is erroneous in finding that the deceased's movements, which
Doctor Ortega declares were the cause of the secondary hemorrhage that
produced his death, were due to the pain felt after the operation and during
his illness. It is contended that according to the record, the real cause of the
movements was, so the deceased himself declared, the excessive warmth of
the bed and the fact that he was unaccustomed to such a bed. To ascertain
this important point requires a careful examination of the evidence upon this
particular.
Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital, a
physician of admitted ability and skill, speaking of the patient's physical
condition when he entered the hospital, testified as follows:
Q.

What was the result of your examination?

A.
I found a wound in the abdomen, on the left side near the umbilical
region; it was not deep and did not penetrate very far, but it passed through
the muscle tissue.
Q.

What caused the death of Felix Te Sue?

A.

He died of a secondary internal hemmorhage.

Q.

How?

A.
The wound was caused by a certain blow, because the penknife
was not very sharp; the force of the blow which introduced the knife into the
flesh produced a secondary congestion of the internal organ so that any
unnecessary movement on the patient's part would cause congestion of the
veins, or would make them more congested and cause them to bleed.

Q.
A.
hospital.
Q.

And in the case of Felix Te Sue, did they bleed?

He began to bleed after he had been twenty-four hours in the

Why do you call it a secondary hemorrhage?

A.
There are many kinds of hemorrhages: Primary, in this particular
case, if the wound had reached the internal organs and severed the veins of
those organs it would be called a primary hemorrhage because it was
directly caused by the wound; but there was no immediate hemorrhage after
the wound was inflicted, but twenty-four hours later; in other words, there
was what is called a secondary hemorrhage.
Q.
You also said that Felix Te Sue had made an unnecessary
movement?
A.
Q.

Yes, sir.
Can you tell the court what were those unnecessary movements?

A.
Those movements were the following: The patient began by moving
from side to side; then he would sit up at night, and perhaps jump out of bed,
and begin walking about; when asked why he did that, contrary to medical
instructions, he explained that he could not lie down because the bed was to
warm, and that he was not used to lying to bed.
Q.
Do you mean to say that the patient's movements brought on the
secondary internal hemorrhage?
A.

Yes, sir, they produced the secondary internal hemorrhage.

Q.

And he died because of that secondary internal hemmorhage?

A.

Yes, sir.

Q.
Was the wound alone, as treated by you, sufficient to cause the
death of Felix Te Sue?

A.
If the patient had lain in bed quietly, in order to avoid increasing
the congestion of the internal veins, there would have been no secondary
hemorrhage.
Q.

But the wound you treated could have been healed?

A.

Yes, sir; it could have been.

Q.

In how many days could it have been healed?

A.
That wound, if there had been no secondary infection, would have
healed up in a week.
Q.
You said that Felix Te Sue had been asked why he moved about
contrary to the physician's instructions; what instructions did you give him?

A.
As soon as he had been admitted into the hospital, he was
examined, and then made to lie in bed. Medical treatment was then
administered, and he was given to understand that he should remain in bed,
for any unnecessary movement might aggravate his condition, and that what
he needed was complete rest.
Q.
If he had not made those movements, do you think death would
have ensued?
A.
I am very sure he would not have had that secondary hemorrhage,
because as a matter of fact, during the first twenty-four hours he had no
symptoms of having an internal hemorrhage.
Q.
And that internal congestion of the veins, although those veins
contained more blood than usual, would not have caused the hemorrhage?
That is to say, the veins would not have burst, if the patient Felix Te Sue had
not moved about, as you have said?
A.
Yes, sir; that internal congestion would have not burst if the patient
had not moved about.

Q.
Can you tell us, doctor, why strangers who know nothing about the
care of the sick are placed in charge of a patient so delicate that his moving
may cause his death, as indeed it did, in this case?
A.
The patient was not placed in the care of strangers; we have nurses
to attend and see to the patient as often as it is needed, besides the
physician's visits to him; but even in the presence of the doctor and the
hospital attendants, and after we had put the patient to bed, he continued to
struggle with us.
Q.
Do you mean to say, then, that Felix Te Sue was fastened in his
bed, and in spite of that he was able to leave it a walk about?
A.
He left his bed the first day after the operation, and immediately
after it, when he was not fastened in because he did not seem to be violent.
(Pages 16-22, transcript of the stenographic notes.)
From the foregoing testimony it may be inferred: That the deceased was
stabbed on the left side of the abdominal region, near the navel; that the
wound did not involve any internal organ; that upon arriving at the hospital,
he was submitted to a minor operation which consisted in cleaning,
medicating, and suturing the wound; that upon his arrival, the patient was in
a nervous state; that during the operation they tied down the patient; that
immediately after the operation Doctor Ortega admonished him to keep
quiet because any movement he might make would change his pathological
state for the worse and bring about dangerous complication; that in spite of
this admonition the deceased moved about, sitting up in bed, getting up and
pacing about the room; that because of this, the internal vessels, already
congested because of the wound, bled, and the hemorrhage thus produced
caused his death.
The defense contends, with which the Attorney-General agrees, that
according to Doctor Ortega's testimony the determining cause of Te Sue's
death was not he wound inflicted by the accused, but his own carelessness in
moving about against the doctor's orders, which produced the internal
hemorrhage. We agree with both parties that according to Doctor Ortega, the
immediate and determining cause of the death was none other than the
internal hemmorhage produced by the rupture of the abdominal blood
vessels; but we cannot agree, in view of the evidence, that the real cause of

said death was not the wound inflicted upon the victim. Carefully analyzing
Doctor Ortega's testimony, we reach the inevitable conclusion that the
internal veins were congested from the beginning because of the force of the
blow which produced the wound, for that is what the doctor means when he
says that "the wound was caused by a certain blow, because the penknife
was not very sharp, the force of the blow which introduced the knife into the
flesh produced a secondary congestion of the internal organ so that an
unnecessary movement on the patient's part would cause congestion of the
veins, or would make them more congested, causing them to bleed"; and
that what really impelled the patient to violate the doctor's orders, by sitting
up in bed and pacing about the room, was not, as the defense insinuates, a
desire to aggravate the criminal liability of the accused, but simply his
nervous condition, which was noted from the moment he entered the
provincial hospital. It was not the warmth of the bed or his not being used to
it that made the patient act as he did, but the pathological state created by
the illness brought on by the wound from which he was suffering. We are
convinced that under normal conditions, if the patient had not been ill, he
would not have violated the doctor's orders, knowing, as he did, that the
slightest movement might occasion a complication or internal hemorrhage
capable of causing death.
The point raised by Viada in volume 3 of his work, pages 41 and 42, involves
facts similar to those established in this case, and we believe the decision of
the Supreme Court of Spain is perfectly applicable to this case:
Even when the doctors say that the death was due not so much to the
wound, which in a better constituted person would have healed in thirty or
forty days, as to the patient's purely nervous temperament, his irritability
and other causes, all of which depend upon his physical constitution:
should such a death be qualified as HOMICIDE? The Supreme Court has
ruled affirmatively: "Inasmuch as a man is responsible for the consequences
of his act and in this case the physical condition and temperament of the
offended party nowise lessen the evil, the seriousness whereof is to be
judged, not by the violence of the means employed, but by the result
actually produced and as the wound which the appellant inflicted upon the
deceased was the cause which determined his death, without his being able
to counteract its effects, it is evident that the act in question should be

qualified as homicide, etc." (Decision of April 3, 1879, published in the

Gazette on the 16th of June.)
In the case cited the doctors were of the opinion that death was not an
immediate consequence of the wound received, but was rather due to the
victim's purely nervous temperament, his irritability and other causes,
peculiar to his physical constitution. In the case in question, it is sought to
attribute the internal hemorrhage that directly caused death, not to the
wound or injury, but the patient's movements, overlooking the fact that they
were due to his nervous condition, and that this state of nervousness could
only be the result of the wound inflicted by the appellant. We hold, therefore,
that the real cause of death in this case was not the bodily movements
referred to, but the congestion of the internal veins produced beforehand by
the force of the blow which caused the wound and the nervous condition of
the deceased.
In United States vs. Sornito (4 Phil., 357), we held that "In crimes against the
life of a human being the results and effects of the criminal acts must
necessarily be taken into consideration in order to establish the seriousness
and extent of the evil or injury produced and to define the crime in
accordance with the law. It must also be taken into consideration that the
guilty parties are responsible under the law for all the unlawful acts executed
by them in violation of its principles and for all the consequences of those
acts."
In United States vs. Montes (6 Phil., 443), we also held that "Where a person
voluntarily and with intent of injuring another commits an act which is
notoriously unlawful, he shall be held responsible for the consequences of his
criminal action, even though when such wrongful act constitutes the crime of
homicide it appears that he had no intention of killing the deceased."
In United States vs. Navarro (7 Phil., 713), we reaffirmed the same principle
holding that "`the firm and unalterable jurisprudence of the Supreme Court
(interpreting the Penal Code now in force and effect) is that the crime of
homicide is committed when death ensues or follows, as the result of a
wound inflicted by another, whether the death be the precise and necessary
consequence of the injuries or wounds, or whether death resulted from
accidents caused or brought on by reason of such wounds or injuries
received by the patient.' (Judgment of the Supreme Court of Spain, May 8,
1890.) `It is the firm and unalterable doctrine, and so held by the Court of
Cassation, that the aggressor is responsible for all the natural consequences

of the aggression when these consequences do not owe their origin to acts
or malicious omissions imputable to the assaulted party.' (Judgment of the
Supreme Court of Spain, May 30, 1892.)"
The same doctrine was laid down in United States vs. Monasterial (14 Phil.,
391). Here it was held among other things, "persons who are responsible for
an act constituting a crime are also liable for all the consequences arising
therefrom and inherent therein, other than those due to incidents entirely
foreign to the act executed, or which originate through the fault or
carelessness of the injured person, which are exceptions to the rule not
arising in the present case."
At this juncture it is well to remember that, as we stated in the beginning,
the patient's nervous condition when the complication or internal
hemorrhage which caused death set in, was an inherent physiological
condition produced by the wound in the abdomen. It goes without saying
that if he had not been wounded he would not have undergone that
extraordinary state and condition, nor have had to leave his bed during the
critical stage of his illness.
Lastly, in United States vs. Zamora (32 Phil., 218), we held that "One who
performs a criminal act should be held to liability for the act and for all of its
consequences, although both were inflicted upon a person other than the
one whom the felon intended to injure."
The cases which the Attorney-General cites in his brief are not applicable, for
the reason that in them all the deaths were due to alien acts, malicious and
imprudent, performed by the injured persons themselves. We have shown
that in the case at bar the real and actual cause of death of the deceased
was the hemorrhage of the internal veins, which had already been congested
by the wound produced and the patient's nervous condition, rather than the
so-called bodily movements, and that these, if they were the immediate
cause of his death, were the direct consequence of the patient's pathological
condition or nervousness. At any rate, they are both traceable to the wound
inflicted by the accused.
The last assignment of error is but a corollary to the first three, which have
just been refuted, and it is contended that the accused can only be convicted
of slight physical injuries, instead of the serious crime of homicide. If the
appellant must answer for all the consequences of her acts voluntarily

performed, as we have shown, it necessarily and logically follows that she

must be convicted of the graver offense.
The appellant is entitled to the mitigating circumstances of not having
intended to commit so serious a crime as that committed, and of having
acted with passion and obfuscation. The first is shown by the fact that she
made use of a small penknife, and the second, by the fact that before the
attack she had been pushed out of the room where the victim was, and that
she considered such treatment as an offense or abuse. The penalty must
therefore be reduced one degree or to prision mayor.
Wherefore, the judgment appealed from is modified and the appellant is
sentenced to eight years and one day of prision mayor, to indemnify the
heirs of the deceased in the amount of P500, to suffer the accessory
penalties of article 61 of the Penal Code, and to pay the costs of both
instances. So ordered.
Avancea, C.J., Johnson, Street, and Villamor, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
It appears from the testimony of Dr. Eduardo Ortega that immediately after
being wounded by the accused, Felix Te Sue went to the hospital of Sorsogon
where he was examined by said doctor, who found that he had a wound on
the left side of the abdomen near the umbilical region, which while it
penetrated the muscle tissue, was not deep and did not produce a primary
hemorrhage, for it did not reach the internal organs, and might be healed in
seven days. A minor operation was performed upon him, but in order to do
so, he had to be tied down, because he was afraid. After the operation he
was put to bed, given medical treatment, and to told to keep quiet because
he needed complete rest and any unnecessary movement might have
aggravate his condition. Besides the hospital nurses and attendants, two
relatives to the injured person watched him night and day.
As the penknife was not sharp, the force of the blow by which it was
introduced into the flesh produced a secondary congestion in the internal
organ, which, through any unnecessary movement on the patients part
might cause congestion of the veins. After twenty four hours had passed
without any indication if an internal hemorrhage, it set in with the bursting of
the congested veins, because the patient, disobeying the doctor's orders,
moved from side to side, sat up in a bed at night, got up, and paced about

the room, notwithstanding the warnings of the nurses and relatives, who
attended him, saying that he could not remain lying down because the bed
was too warm for him, and that he was not used to that kind of furniture. In
the opinion of the physician, the patient would not have suffered a secondary
hemorrhage and death would not have occurred, if he had not moved about.
In finding the defendant-appellant guilty of the crime of homicide and not
merely of slight physical injuries, the majority rely upon the holding that the
movements made by the patient against the doctor's orders, which caused
the rupture of the veins already congested by the impact of the blow, were
due to his nervous condition and not to the excessive warmth he felt or to his
not being used to sleeping in a bed.
The doctor who examined the deceased, and upon whose testimony the
majority base their conclusion, said nothing about the victim's nervous
temperament, nor has the latter said he was so. The doctor said quite plainly
and we have no reason to doubt him that the patient's restlessness was
due to the fact that the bed was to warm for him, and that he was not used
to it. One need not have a nervous temperament in order to look for coolness
and comfort in sleeping. If the injured man, for the sake of a cooler and more
comfortable bed, wished to risk his life by a purely conscious and
voluntary act violating the doctor's instructions and refusing to listen to
his warnings and those of the persons attending him, he alone must be held
responsible for his own death, which resulted from his carelessness; and
such death cannot be attributed to the person who wounded him slightly,
and who is, indeed, responsible for the natural and logical consequences of
such a voluntary act, but not for the death, which as we have seen, was not
a natural and logical consequence of the wound.
Very similar to this are the cases cited by Viada in volume V of the fifth
edition of his commentaries, where the Supreme Court of Spain laid down
the following doctrines:
QUESTION 22. If the immediate cause of death was traumatic erysipelas
complicated with meningoencephalitis arising form the erysipelas itself, and
the remote and original cause of the latter was the wound inflicted by the
defendant on the upper part of the offended party's left parietal bone,
although if the victim were not predisposed to erysipelas, had not gone out
in the open, and had been given proper medicine, it is probable the accident

would have been avoided and the wound healed in thirty days. Is the person
who inflicted the wound guilty of homicide or of physical injuries? The
Supreme Court has held in favor of the latter and lighter offense, arguing to
make the special circumstances stated above qualify the act prosecuted as
consequences of grossly imprudent acts and omissions of the injured person,
which unfortunately brought on his death, and which in all justice and reason
can only be imputed to the latter, and not to the defendant, who had no
share in them and could not have prevented them. (Decision of June 15,
1874, Gazette for August 26th.) 5 Viada, 5th edition, page 80.
QUESTION 23. When a wound in the head, which is essential a less serious
physical injuries, gives rise to traumatic erysipelas, which in turn produces
cerebral meningitis from which the person injured dies in eleven days, and
the doctors declare that the erysipelas may have been due to the patient's
carelessness in constantly exposing himself to a draft: Is the act homicide or
merely less serious physical injuries? The Audiencia of Granada held in favor
of the former, but upon appeal on the ground that articles 419 and 433 of
the Code had been violated, because the crime of less serious physical
injuries was penalized as if it were homicide, the Supreme Court held that
the appeal had been well taken, because according to the opinion of the
doctors, the erysipelas which preceded the meningitis that produced
death may have been due to the patient's carelessness in constantly
exposing himself to a draft, contrary to said doctors' orders; and as it is not
alleged that the other causes which might have contributed to it actually
occasioned the death, there is some doubt, for a crime is determined by the
act wherein it consists, and if this be so, the crime in question is none other
than less serious physical injuries. (Decision of December 17, 1878, Gazette
of February 7, 1879.) 5 Viuda, 5th edition page 81.
QUESTION 24. If the verdict it is stated that the wounds inflicted upon the
deceased by the defendant would have healed, with the loss of the arm, had
it not been for complications due to make mistakes committed by the doctor
in the surgical operation and treatment: Is the crime homicide? It was so held
by theAudiencia of Jaen; but upon appeal taken by the accused, the Supreme
Court only found him guilty of the crime of serious physical injuries :
"Whereas, although as this court has repeatedly held, a person is liable for all
justiciable acts contrary to law and for all the consequences thereof, having
inflicted physical injuries, from which or from whose direct or immediate
consequences death results, either incidentally or accidentally, the offender

must answer for the ultimate result of his act, i. e., for the death resulting
from the injury he inflicted, yet this principle is not applicable where it
clearly appears that the injury would not have caused death, in the ordinary
course of events, but would have healed in so many days, and where it is
shown beyond all doubt that the death is due to the malicious or careless
acts of the injured person or a third person, because it is a more and
equitable principle universally recognized and constantly applied, that one is
accountable for his own acts and their natural or logical consequences, and
not for those which bear no relation to the initial cause and are due to the
carelessness, fault, or lack of skill of another, whether it be the injured man
himself or a third person: Whereas, the proper jury having been found, upon
the strength of the evidence before it, that the wounds inflicted by the
appellant Jeronimo Navarro upon Bartolome Martinez would have healed,
with the loss of an arm, had it not been for certain complications due to the
mistakes committed by the doctor in the surgical operations and treatment
thereof, it is obvious that following the doctrine set forth in the foregoing
reasonings, the appellant should not have been convicted of the crime of
homicide, but merely of serious physical injuries with the loss of a principal
member, this being the only consequence imputable to him in view of his
act, inasmuch as the death was due wholly to another person's carelessness
or lack of skill, etc." (Decision of April 2, 1903, Gazette of May 23rd.) 5 Viada,
5th edition, page 81.)
In the first two cases cited, it will be observed that the deceased received
less serious physical injuries and that death was due to their own
carelessness or abuses committed by them. In the third case, the deceased
had been seriously injured, but died as a result of the mistakes of the doctor
in the surgical operation and treatment of the injuries. The Supreme Court of
Spain held them criminally liable for the crime of less serious physical
injuries in the first two, and of serious physical injuries in the third, because
these, and not homicide were the natural consequences of their unlawful
acts, inasmuch as death was the result of carelessness and abuses
committed by the injured persons themselves, and of the mistakes of the
doctor in the surgical operation and treatment of the wounds.
In United States vs. Embate (3 Phil., 640), where the real cause of death
could not be determined, this court, through Chief Justice Arellano, held:
All the witnesses attribute the death of the child to the illness it was
suffering, but the doctor, who did nothing more than to examine the body

and gives his certificate as to certain bruises on the thighs, in his testimony
states that the body showed unequivocal signs of a serious disease of the
heart, and that the bruises could not have caused the death of the child, but
might have contributed to accelerate the fatal result of that illness, which
was a serious affection of the heart. Being asked by the judge whether the
gravity of the child's illness, owing to the affection of the heart, was such
that it might have died without the blows which were inflicted upon him, the
witness replied that "if in the first place the age of the child is taken into
consideration, and in the second its surrounding circumstances, its condition
was such as to lead one to expect a fatal result, no physician being in
attendance."
Upon being further questioned as to whether he believed that the blows
inflicted upon the child and which produced the bruises were the cause of its
death, he replied that "as no other approximate cause is known than the
great excitement produced by those blows, it may be inferred that they were
the sole cause which precipitated the fatal result of the illness of the child."
We do not find in this testimony, given solely upon the result of the
examination of the body, sufficient evidence as to the true cause of the
death of the child. But it is true that the accused did strike him for the
purpose of inflicting punishment, and as by this he committed a
misdemeanor which should not go unpunished, and which can be punished
in this same cause under the provisions of section 29 of General Orders, No.
58, . . .
For all the foregoing, I am of the opinion that the defendant- appellant can
only be made to answer for the misdemeanor of slight physical injuries as
defined and penalized in article 587 of the Penal Code, inasmuch as the
wound inflicted by her might have been healed in seven days, the penalty
fixed being arresto menor.
Malcolm and Romualdez, JJ., concur.
G.R. No. L-27097 January 17, 1975
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendantsappellants.

Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L.

Quiroz for plaintiff-appellee.
Santiago F. Alidio as counsel de oficio for defendants-appellants.

AQUINO, J.:
Antonio Toling and Jose Toling, brothers, appealed from the decision of the
Court of First Instance of Laguna, finding them guilty of multiple murder and
attempted murder, sentencing them to death and ordering them to
indemnify each set of heirs of (1) Teresita B. Escanan, (2) Antonio B. Mabisa,
(3) Isabelo S. Dando, (4) Elena B. Erminio (5) Modesta R. Brondial (6) Isabel
Felices and (7) Teodoro F. Bautista in the sum of P6,000 and to pay Amanda
Mapa the sum of P500 (Criminal Case No. SC-966). The judgment of
conviction was based on the following facts:
Antonio Toling and Jose Toling, twins, both married, are natives of Barrio
Nenita which is about eighteen (or nine) kilometers away from Mondragon,
Northern Samar. They are illiterate farmers tilling their own lands. They were
forty-eight years old in 1966. Antonio is one hour older than Jose. Being
twins, they look alike very much. However, Antonio has a distinguishing cut
in his ear (44 tsn Jan. 14, 1966).
Antonio's daughter, Leonora, was working in Manila as a laundrywoman since
September, 1964. Jose's three children one girl and two boys, had stayed in
Manila also since 1964.
Antonio decided to go to Manila after receiving a letter from Leonora telling
him that she would give him money. To have money for his expenses,
Antonio killed a pig and sold the meat to Jose's wife for sixty pesos. Jose
decided to go with Antonio in order to see his children. He was able to raise
eighty-five pesos for his expenses.
On January 6, 1965, with a bayong containing their pants and shirts, the
twins left Barrio Nenita and took a bus to Allen. From there, they took a
launch to Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on
board an Alatco bus, and from Daraga, they rode on the train, arriving at the
Paco railroad station in Manila at about seven o'clock in the morning of
January 8th. It was their first trip to the big city.

At the Paco station, the twins took a jeepney which brought them to Tondo.
By means of a letter which Aniano Espenola a labor-recruiter, had given
them, they were able to locate an employment agency where they learned
the address of the Eng Heng Glassware. Antonio's daughter was working in
that store. Accompanied by Juan, an employee of the agency, they
proceeded to her employer's establishment. Leonora gave her father fifty
pesos. Sencio Rubis Antonio's grandson, gave him thirty pesos. Antonio
placed the eighty pesos in the right pocket of his pants. It was then
noontime.
Jose was not able to find any of his children in the city. The twins returned to
the agency where they ate their lunch at Juan's expense. From the agency,
Juan took the twins to the Tutuban railroad station that same day, January
8th, for their homeward trip.
After buying their tickets, they boarded the night Bicol express train at about
five o'clock in the afternoon. The train left at six o'clock that evening.
The twins were in coach No. 9 which was the third from the rear of the dining
car. The coach had one row of two-passenger seats and another row of threepassenger seats. Each seat faced an opposite seat. An aisle separated the
two rows. The brothers were seated side by side on the fourth threepassenger seat from the rear, facing the back door. Jose was seated between
Antonio, who was near the window, and a three-year old boy. Beside the boy
was a woman breast-feeding her baby who was near the aisle. That woman
was Corazon Bernal. There were more than one hundred twenty passengers
in the coach. Some passengers were standing on the aisle.
Sitting on the third seat and facing the brothers were two men and an old
woman who was sleeping with her head resting on the back of the seat (Exh.
2). on the two-passenger seat across the aisle in line with the seat where the
brothers were sitting, there were seated a fat woman, who was near the
window, and one Cipriano Reganet who was on her left. On the opposite seat
were seated a woman, her daughter and Amanda Mapa with an eight-month
old baby. They were in front of Reganet.
Two chico vendors entered the coach when the train stopped at Cabuyao,
Laguna. The brothers bought some chicos which they put aside. The vendors
alighted when the train started moving. It was around eight o'clock in the
evening.

Not long after the train had resumed its regular speed, Antonio stood up and
with a pair of scissors (Exh. B) stabbed the man sitting directly in front of
him. The victim stood up but soon collapsed on his seat.
For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who
was seated opposite him. She was not able to get up anymore. 1
Upon seeing what was happening, Amanda Mapa, with her baby, attempted
to leave her seat, but before she could escape Jose stabbed her, hitting her
on her right hand with which she was supporting her child (Exh. D-2). The
blade entered the dorsal side and passed through the palm. Fortunately, the
child was not injured. Most of the passengers scurried away for safety but
the twins, who had run amuck, stabbed everyone whom they encountered
inside the coach. 2
Among the passengers in the third coach was Constabulary Sergeant Vicente
Z. Rayel, a train escort who, on that occasion, was not on duty. He was taking
his wife and children to Calauag, Quezon. He was going to the dining car to
drink coffee when someone informed him that there was a stabbing inside
the coach where he had come from. He immediately proceeded to return to
coach No. 9. Upon reaching coach 8, he saw a dead man sprawled on the
floor near the toilet. At a distance of around nine meters, he saw a man on
the platform separating coaches Nos. 8 and 9, holding a knife between the
thumb and index finger of his right hand, with its blade pointed outward. He
shouted to the man that he (Rayel) was a Constabularyman and a person in
authority and Rayel ordered him to lay down his knife (Exh. A) upon the
count of three, or he would be shot.
Instead of obeying, the man changed his hold on the knife by clutching it
between his palm and little finger (with the blade pointed inward) and, in a
suicidal impulse, stabbed himself on his left breast. He slowly sank to the
floor and was prostrate thereon. Near the platform where he had fallen,
Rayel saw another man holding a pair of scissors (Exh. B). He retreated to
the steps near the platform when he saw Rayel armed with a pistol.
Rayel learned from his wife that the man sitting opposite her was stabbed to
death.
Constabulary Sergeant Vicente Aldea was also in the train. He was in the
dining car when he received the information that there were killings in the
third coach. He immediately went there and, while at the rear of the coach,

he met Mrs. Mapa who was wounded. He saw Antonio stabbing with his
scissors two women and a small girl and a woman who was later identified as
Teresita B. Escanan (Exh. I to I-3). Antonio was not wounded. Those victims
were prostrate on the seats of the coach and on the aisle.
Aldea shouted at Antonio to surrender but the latter made a thrust at him
with the scissors. When Antonio was about to stab another person, Aldea
stood on a seat and repeatedly struck Antonio on the head with the butt of
his pistol, knocking him down. Aldea then jumped and stepped on Antonio's
buttocks and wrested the scissors away from him. Antonio offered resistance
despite the blows administered to him.
When the train arrived at the Calamba station, four Constabulary soldiers
escorted the twins from the train and turned them over to the custody of the
Calamba police. Sergeant Rayel took down their names. The bloodstained
scissors and knife were turned over to the Constabulary Criminal
Investigation Service (CIS).
Some of the victims were found dead in the coach while others were picked
up along the railroad tracks between Cabuyao and Calamba. Those who were
still alive were brought to different hospitals for first-aid treatment. The dead
numbering twelve in all were brought to Funeraria Quiogue, the official
morgue of the National Bureau of Investigation (NBI) in Manila, where their
cadavers were autopsied (Exh. C to C-11). A Constabulary photographer took
some pictures of the victims (Exh. G to I-2, J-1 and J-2).
Of the twelve persons who perished, eight, whose bodies were found in the
train, died from stab wounds, namely:
(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban,
Camarines Norte.
(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.
(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.

(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and
(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C
to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q-2, R to
R-2 and T to T-2)
Four dead persons were found near the railroad tracks. Apparently, they
jumped from the moving train to avoid being killed. They were:
(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. .
(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.
(3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and
(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street,
Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and S to S2).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda MapaDizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon BernalAstrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died later (43 tsn
January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon her right
hand by Jose Toling, she was first brought to the Calamba Emergency
Hospital. Later, she was transferred to the hospital of the Philippine National
Railways at Caloocan City where she was confined for thirteen days free of
charge. As a result of her injury, she was not able to engage in her
occupation of selling fish for one month, thereby losing an expected earning
of one hundred fifty pesos. When she ran for safety with her child, she lost
clothing materials valued at three hundred pesos aside from two hundred
pesos cash in a paper bag which was lost.
The case was investigated by the Criminal Investigation Service of the
Second Constabulary Zone headquarters at Camp Vicente Lim, Canlubang,
Laguna. On January 9, 1965 Constabulary investigators took down the
statements of Mrs. Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de
Sarmiento and Sergeant Aldea. On that date, the statements of the Toling
brothers were taken at the North General Hospital. Sergeant Rayel also gave
a statement.

Antonio Toling told the investigators that while in the train he was stabbed by
a person "from the station" who wanted to get his money. He retaliated by
stabbing his assailant. He said that he stabbed somebody "who might have
died and others that might not". He clarified that in the train four persons
were asking money from him. He stabbed one of them. "It was a hold-up".
He revealed that after stabbing the person who wanted to rob him, he
stabbed other persons because, inasmuch as he "was already bound to die",
he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. 3, 1965).
Jose Toling, in his statement, said that he was wounded because he was
stabbed by a person "from Camarines" who was taking his money. He
retaliated by stabbing his assailant with the scissors. He said that he stabbed
two persons who were demanding money from him and who were armed
with knives and iron bars.
When Jose Toling was informed that several persons died due to the
stabbing, he commented that everybody was trying "to kill each other" (Exh.
I-A).
According to Jose Toling, two persons grabbed the scissors in his pocket and
stabbed him in the back with the scissors and then escaped. Antonio
allegedly pulled out the scissors from his back, gave them to him and told
him to avenge himself with the scissors.
On January 20, 1965 a Constabulary sergeant filed against the Toling
brothers in the municipal court of Cabuyao, Laguna a criminal complaint for
multiple murder and multiple frustrated murder. Through counsel, the
accused waived the second stage of the preliminary investigation. The case
was elevated to the Court of First Instance of Laguna where the Provincial
Fiscal on March 10, 1965 filed against the Toling brothers an information for
multiple murder (nine victims), multiple frustrated murder (six victims) and
triple homicide (as to three persons who died after jumping from the running
train to avoid being stabbed).
At the arraignment, the accused, assisted by their counsel de oficio pleaded
not guilty. After trial, Judge Arsenio Naawa rendered the judgment of
conviction already mentioned. The Toling brothers appealed.
In this appeal, appellants' counsel de oficio assails the credibility of the
prosecution witnesses, argues that the appellants acted in self-defense and

contends, in the alternative, that their criminal liability was only for two
homicides and for physical injuries.
According to the evidence for the defense (as distinguished from appellants'
statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban
Railroad Station in the afternoon of January 8, 1965, Antonio went to the
ticket counter to buy tickets for himself and Jose. To pay for the tickets, he
took out his money from the right pocket of his pants and later put back the
remainder in the same pocket. The two brothers noticed that four men at
some distance from them were allegedly observing them, whispering among
themselves and making signs. The twins suspected that the four men
harbored evil intentions towards them.
When the twins boarded the train, the four men followed them. They were
facing the twins. They were talking in a low voice. The twins sat on a two
passenger seat facing the front door of the coach, the window being on the
right of Antonio and Jose being to his left. Two of the four men, whom they
were suspecting of having evil intentions towards them, sat on the seat
facing them, while the other two seated themselves behind them. Some old
women were near them. When the train was already running, the man sitting
near the aisle allegedly stood up, approached Antonio and pointed
a balisong knife at his throat while the other man who was sitting near the
window and who was holding also a balisong knife attempted to pick
Antonio's right pocket, threatening him with death if he would not hand over
the money. Antonio answered that he would give only one-half of his money
provided the man would not hurt him, adding that his (Antonio's) place was
still very far.
When Antonio felt some pain in his throat, he suddenly drew out his hunting
knife or small bolo (eight inches long including the handle) from the back
pocket of his pants and stabbed the man with it, causing him to fall to the
floor with his balisong. He also stabbed the man who was picking his pocket.
Antonio identified the two men whom he had stabbed as those shown in the
photographs of Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A and
5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio
was stabbing the second man, another person from behind allegedly stabbed
him on the forehead, causing him to lose consciousness and to fall on the
floor (Antonio has two scars on his forehead and a scar on his chest and left
forearm, 85, 87 tsn). He regained consciousness when two Constabulary
soldiers raised him. His money was gone.

Seeing his brother in a serious condition, Jose stabbed with the scissors the
man who had wounded his brother. Jose hit the man in the abdomen. Jose
was stabbed in the back by somebody. Jose stabbed also that assailant in the
middle part of the abdomen, inflicting a deep wound.
However, Jose did not see what happened to the two men whom he had
stabbed because he was already weak. He fell down and became
unconscious. He identified Exhibit A as the knife used by Antonio and Exhibit
B as the scissors which he himself had used. He recovered consciousness
when a Constabulary soldier brought him out of the train.
The brothers presented Doctor Leonardo del Rosario, a physician of the North
General Hospital who treated them during the early hours of January 9, 1965
and who testified that he found the following injuries on Antonio Toling:
Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2
inches each, mid-frontal (wound on the forehead) and
Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line
level of 3rd ICS right, penetrating thoracic cavity (chest wound
(Exh. 11).
and on Jose Toling a stab wound, one inch long on the paravertebral level of
the fifth rib on the left, penetrating the thoracic cavity (Exh. 10). The wound
was on the spinal column in line with the armpit or "about one inch from the
midline to the left" (113 tsn). The twins were discharged from the hospital on
January 17th.
The trial court, in its endeavor to ascertain the motive for the twins'
rampageous behavior, which resulted in the macabre deaths of several
innocent persons, made the following observations:
What could be the reason or motive that actuated the accused to
run amuck? It appears that the accused travelled long over land
and sea spending their hard earned money and suffering
privations, even to the extent of foregoing their breakfast, only to
receive as recompense with respect to Antonio the meager sum
of P50 from his daughter and P30 from his grandson and with
respect to Jose to receive nothing at all from any of his three
children whom he could not locate in Manila.

It also appears that the accused, who are twins, are queerly
alike, a fact which could easily invite some people to stare or
gaze at them and wonder at their very close resemblance. Like
some persons who easily get angry when stared at, however, the
accused, when stared at by the persons in front of them,
immediately suspected them as having evil intention towards
them (accused).
To the mind of the Court, therefore, it is despondency on the part
of the accused coupled with their unfounded suspicion of evil
intention on the part of those who happened to stare at them
that broke the limit of their self-control and actuated them to run
amuck.
We surmise that to the captive spectators in coach No. 9 the spectacle of
middle-aged rustic twins, whom, in the limited space of the coach, their copassengers had no choice but to notice and gaze at, was a novelty. Through
some telepathic or extra-sensory perception the twins must have sensed that
their co-passengers were talking about them in whispers and making
depreciatory remarks or jokes about their humble persons. In their parochial
minds, they might have entertained the notion or suspicion that their male
companions, taking advantage of their ignorance and naivete, might
victimize them by stealing their little money. Hence, they became hostile to
their co-passengers. Their pent-up hostility erupted into violence and
murderous fury.
A painstaking examination of the evidence leads to the conclusion that the
trial court and the prosecution witnesses confounded one twin for the other.
Such a confusion was unavoidable because the twins, according to a
Constabulary investigator, are "very identical". Thus, on the witness stand
CIS Sergeants Alfredo C. Orbase and Liberato Tamundong after pointing to
the twins, refused to take the risk of identifying who was Antonio and who
was Jose. They confessed that they might be mistaken in making such a
specific identification (28 tsn September 3, 1965; 32 tsn November 5, 1965).
In our opinion, to ascertain who is Antonio and who is Jose, the reliable
guides would be their sworn statements (Exh. 1 and 8), executed one day
after the killing, their own testimonies and the medical certificates (Exh. 10
and 11). Those parts of the evidence reveal that the one who was armed
with the knife was Antonio and the one who was armed with the scissors was

Jose. The prosecution witnesses and the trial court assumed that Antonio was
armed with the scissors (Exh. B) and Jose was armed with the knife (Exh. A).
That assumption is erroneous.
In his statement and testimony, Antonio declared that he was armed with a
knife, while Jose declared that he was armed with the scissors which Antonio
had purchased at the Tutuban station, before he boarded the train and which
he gave to Jose because the latter is a barber whose old pair of scissors was
already rusty. As thus clarified, the person whom Sergeant Rayel espied as
having attempted to commit suicide on the platform of the train by stabbing
himself on the chest would be Antonio (not Jose). That conclusion is
confirmed by the medical certificate, Exhibit 11, wherein it is attested that
Antonio had a wound in the chest. And the person whom Sergeant Aldea
subdued after the former had stabbed several persons with a pair of scissors
(not with a knife) was Jose and not Antonio. That fact is contained in his
statement of January 9, 1965 (p. 9, Record).
The mistake of the prosecution witnesses in taking Antonio for Jose and viceversa does not detract from their credibility. The controlling fact is that those
witnesses confirmed the admission of the twins that they stabbed several
passengers.
Appellants' counsel based his arguments on the summaries of the evidence
found in the trial court's decision. He argues that the testimonies of
Sergeants Rayel and Aldea are contradictory but he does not particularize on
the supposed contradictions.
The testimonies of the two witnesses do not cancel each other. The main
point of Rayel's testimony is that he saw one of the twins stabbing himself in
the chest and apparently trying to commit suicide. Aldea's testimony is that
he knocked down the other twin, disabled him and prevented him from
committing other killings.
It may be admitted that Rayel's testimony that Aldea took the knife of Jose
Toling was not corroborated by Aldea. Neither did Aldea testify that Antonio
was near Jose on the platform of the train. Those discrepancies do not render
Rayel and Aldea unworthy of belief. They signify that Aldea and Rayel did not
give rehearsed testimonies or did not compare notes.
Where, as in this case, the events transpired in rapid succession in the coach
of the train and it was nighttime, it is not surprising that Rayel and Aldea

would not give identical testimonies (See 6 Moran's Comments on the Rules
of Court, 1970 Ed. 139-140; People vs. Resayaga, L-23234, December 26,
1963, 54 SCRA 350). There is no doubt that Aldea and Rayel witnessed some
of the acts of the twins but they did not observe the same events and their
powers of perception and recollection are not the same.
Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no
one corroborated her testimony that one of the twins stabbed a man and a
sleeping woman sitting on the seat opposite the seat occupied by the twins.
The truth is that Mrs. Mapa's testimony was confirmed by the necropsy
reports and by the twins themselves who admitted that they stabbed some
persons.
On the other hand, the defense failed to prove that persons, other than the
twins, could have inflicted the stab wounds. There is no doubt as to
the corpus delicti. And there can be no doubt that the twins, from their own
admissions (Exh. 1 and 8) and their testimonies, not to mention the
testimonies of Rayel, Aldea, Mrs. Mapa and the CIS investigators, were the
authors of the killings.
Apparently, because there was no doubt on the twins' culpability, since they
were caught in flagrante delicto the CIS investigators did not bother to get
the statements of the other passengers in Coach No. 9. It is probable that no
one actually saw the acts of the twins from beginning to end because
everyone in Coach No. 9 was trying to leave it in order to save his life. The
ensuing commotion and confusion prevented the passengers from having a
full personal knowledge of how the twins consummated all the killings.
On the other hand, the twins' theory of self-defense is highly incredible. In
that crowded coach No. 9, which was lighted, it was improbable that two or
more persons could have held up the twins without being readily perceived
by the other passengers. The twins would have made an outcry had there
really been an attempt to rob them. The injuries, which they sustained, could
be attributed to the blows which the other passengers inflicted on them to
stop their murderous rampage.
Appellants' view is that they should be held liable only for two homicides,
because they admittedly killed Antonio B. Mabisa and Isabelo S. Dando, and
for physical injuries because they did not deny that Jose Toling stabbed Mrs.
Mapa. We have to reject that view. Confronted as we are with the grave task
of passing judgment on the aberrant behavior of two yokels from the Samar

hinterland who reached manhood without coming into contact with the
mainstream of civilization in urban areas, we exercised utmost care and
solicitude in reviewing the evidence. We are convinced that the record
conclusively establishes appellants' responsibility for the eight killings.
To the seven dead persons whose heirs should be indemnified, according to
the trial court, because they died due to stab wounds, should be added the
name of Susana C. Hernandez (Exh. P, P-1 and P-2). The omission of her
name in judgment was probably due to inadvertence. According to the
necropsy reports, four persons, namely, Shirley A. Valenciano, Salvador A.
Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to multiple
traumatic injuries consisting of abrasions, contusions, lacerations and
fractures on the head, body and extremities (Exh. J to J-2, K to K-2, M to M-2
and S to S-2).
The conjecture is that they jumped from the moving tracing to avoid being
killed but in so doing they met their untimely and horrible deaths. The trial
court did not adjudge them as victims whose heirs should be indemnified. As
to three of them, the information charges that the accused committed
homicide. The trial court dismissed that charge for lack of evidence.
No one testified that those four victims jumped from the train. Had the
necropsy reports been reinforced by testimony showing that the proximate
cause of their deaths was the violent and murderous conduct of the twins,
then the latter would be criminally responsible for their deaths.
Article 4 of the Revised Penal Code provides that "criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful
act done be different from that which he intended". The presumption is that
"a person intends the ordinary consequences of his voluntary act" (Sec. 5[c],
Rule 131, Rules of Court).
The rule is that "if a man creates in another man's mind an immediate sense
of danger which causes such person to try to escape, and in so doing he
injures himself, the person who creates such a state of mind is responsible
for the injuries which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited
in U.S. vs. Valdez, 41 Phil. 4911, 500).
Following that rule, is was held that "if a person against whom a criminal
assault is directed reasonably believes himself to be in danger of death or
great bodily harm and in order to escape jumps into the water, impelled by

the instinct of self-preservation, the assailant is responsible for homicide in

case death results by drowning" (Syllabus, U.S. vs. Valdez, supra, See People
vs. Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to the jumping from the train of the
four victims already named precludes the imputation of criminal
responsibility to the appellants for the ghastly deaths of the said victims.
The same observation applies to the injuries suffered by the other victims.
The charge of multiple frustrated murder based on the injuries suffered by
Cipriano Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D,
D-3 to D-5) was dismissed by the trial court for lack of evidence. Unlike Mrs.
Mapa, the offended parties involved did not testify on the injuries inflicted on
them.
The eight killings and the attempted killing should be treated as separate
crimes of murder and attempted murder qualified be treachery (alevosia)
(Art. 14[16], Revised Penal Code). The unexpected, surprise assaults
perpetrated by the twins upon their co-passengers, who did not anticipate
that the twins would act likejuramentados and who were unable to defend
themselves (even if some of them might have had weapons on their persons)
was a mode of execution that insured the consummation of the twins'
diabolical objective to butcher their co-passengers. The conduct of the twins
evinced conspiracy and community of design.
The eight killings and the attempted murder were perpetrated by means of
different acts. Hence, they cannot be regarded as constituting a complex
crime under article 48 of the Revised Penal Code which refers to cases where
"a single act constitutes two or more grave felonies, or when an offense is a
necessary means for committing the other".
As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos
reviste dos formas: (a) cuando un solo hecho constituye dos o mas delitos (el
llamado delito compuesto); (b) cuando uno de ellos sea medio necesario
para cometer otro (el llamado delito complejo)." (1 Derecho Penal, 12th Ed.
650).
On the other hand, "en al concurso real de delitos", the rule, when there is
"acumulacion material de las penas", is that "si son varios los resultados, si
son varias las acciones, esta conforme con la logica y con la justicia que el

agente soporte la carga de cada uno de los delitos" (Ibid, p. 652, People vs.
Mori, L-23511, January 31, 1974, 55 SCRA 382, 403).
The twins are liable for eight (8) murders and one attempted murder. (See
People vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck,
killed sixteen persons and wounded others, was convicted of sixteen
separate murders, one frustrated murder and two attempted murders;
People vs. Mortero, 108 Phil. 31, the Panampunan massacre case, where six
defendants were convicted of fourteen separate murders; People vs.
Remollino, 109 Phil. 607, where a person who fired successively at six
victims was convicted of six separate homicides; U. S. Beecham, 15 Phil.
272, involving four murders; People vs. Macaso, 85 Phil. 819, 828, involving
eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260,
271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99
Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97 Phil. 975;
People vs. Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs.
Cu Unjiengi, 61 Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon,
49 Phil. 437, where the crimes committed by means of separate acts were
held to be complex on the theory that they were the product of a single
criminal impulse or intent).
As no generic mitigating and aggravating circumstances were proven in this
case, the penalty for murder should be imposed in its medium period
or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. The death
penalty imposed by the trial court was not warranted.
A separate penalty for attempted murder should be imposed on the
appellants. No modifying circumstances can be appreciated in the attempted
murder case.
WHEREFORE, the trial court's judgment is modified by setting aside the
death sentence. Defendants-appellants Antonio Toling and Jose Toling are
found guilty, as co-principals, of eight (8) separate murders and one
attempted murder. Each one of them is sentenced to eight (8) reclusion
perpetuas for the eight murders and to an indeterminate penalty of one (1)
year of prision correccional as minimum to six (6) years and one (1) day
ofprision mayor as maximum for the attempted murder and to pay solidarily
an indemnity of P12,000 to each set of heirs of the seven victims named in
the dispositive part of the trial court's decision and of the eight victim,
Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of

P500 to Amanda Mapa. In the service of the penalties, the forty-year limit
fixed in the penultimate paragraph of article 70 of the Revised Penal Code
should be observed. Costs against the appellants.
SO ORDERED.
G.R. No. 72964 January 7, 1988
FILOMENO
vs.
HON. INTERMEDIATE APPELLATE
PHILIPPINES, respondents.

URBANO, petitioner,
COURT

AND

PEOPLE

OF

THE

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate
Court which affirmed the decision of the then Circuit Criminal Court of
Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable
doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno
Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan
located at about 100 meters from the tobacco seedbed of Marcelo Javier. He
found the place where he stored his palay flooded with water coming from
the irrigation canal nearby which had overflowed. Urbano went to the
elevated portion of the canal to see what happened and there he saw
Marcelo Javier and Emilio Erfe cutting grass. He asked them who was
responsible for the opening of the irrigation canal and Javier admitted that he
was the one. Urbano then got angry and demanded that Javier pay for his
soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo
(about 2 feet long, including the handle, by 2 inches wide) and hacked Javier
hitting him on the right palm of his hand, which was used in parrying the
bolo hack. Javier who was then unarmed ran away from Urbano but was
overtaken by Urbano who hacked him again hitting Javier on the left leg with
the back portion of said bolo, causing a swelling on said leg. When Urbano
tried to hack and inflict further injury, his daughter embraced and prevented
him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought
Javier to his house about 50 meters away from where the incident happened.
Emilio then went to the house of Barangay Captain Menardo Soliven but not
finding him there, Emilio looked for barrio councilman Felipe Solis instead.
Upon the advice of Solis, the Erfes together with Javier went to the police
station of San Fabian to report the incident. As suggested by Corporal Torio,
Javier was brought to a physician. The group went to Dr. Guillermo Padilla,
rural health physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no
available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla
issued a medico-legal certificate (Exhibit "C" dated September 28, 1981)
which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo
Javier, 20 years of age, married, residing at Barangay Anonang,
San Fabian, Pangasinan on October 23, 1980 and found the
following:
1 -Incised wound 2 inches in length at the upper portion of the
lesser palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period.
This wound was presented to me only for medico-legal
examination, as it was already treated by the other doctor. (p.
88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle
their differences. Urbano promised to pay P700.00 for the medical expenses
of Javier. Hence, on October 27, 1980, the two accompanied by Solis
appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit
A), to wit:
xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257

both parties appeared before this Station accompanied by brgy.
councilman Felipe Solis and settled their case amicably, for they
are neighbors and close relatives to each other. Marcelo Javier
accepted and granted forgiveness to Filomeno Urbano who
shoulder (sic) all the expenses in his medical treatment, and
promising to him and to this Office that this will never be
repeated anymore and not to harbour any grudge against each
other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3,
1980, the additional P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth
General Hospital in a very serious condition. When admitted to the hospital,
Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who
personally attended to Javier found that the latter's serious condition was
caused by tetanus toxin. He noticed the presence of a healing wound in
Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The
medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR
after muscular spasm.
02 inhalation administered.
Ambo bag resuscita-

tion and cardiac massage

done but to no avail.
Pronounced dead by
Cabugao at 4:18 P.M.

Dra.

PMC done and cadaver

brought home by relatives.
(p.
Records)

100,

Original

In an information dated April 10, 1981, Filomeno Urbano was charged with
the crime of homicide before the then Circuit Criminal Court of Dagupan City,
Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as
minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law,
to indemnify the heirs of the victim, Marcelo Javier, in the amount of
P12,000.00 without subsidiary imprisonment in case of insolvency, and to
pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on
appeal but raised the award of indemnity to the heirs of the deceased to
P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion
for new trial was based on an affidavit of Barangay Captain Menardo Soliven
(Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San
Fabian, Pangasinan, and up to the present having been reelected to such position in the last barangay elections on May
17, 1982;

That sometime in the first week of November, 1980, there was a

typhoon that swept Pangasinan and other places of Central
Luzon including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued
irrigation dam which irrigates the ricefields of San Fabian were
closed and/or controlled so much so that water and its flow to the
canals and ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam
leading to the canals and ditches which will bring water to the
ricefields, the water in said canals and ditches became shallow
which was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area
affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw
the late Marcelo Javier catching fish in the shallow irrigation
canals with some companions;
That few days there after,or on November l5, l980, I came to
know that said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different from
that which he intended ..." Pursuant to this provision "an accused is
criminally responsible for acts committed by him in violation of law and for
all the natural and logical consequences resulting therefrom." (People v.
Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who used
a bolo as a result of which Javier suffered a 2-inch incised wound on his right
palm; that on November 14, 1981 which was the 22nd day after the incident,
Javier was rushed to the hospital in a very serious condition and that on the
following day, November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was
the natural and logical consequence of Urbano's unlawful act. Hence, he was
declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the
time of his death, which covers a period of 23 days does not
deserve serious consideration. True, that the deceased did not
die right away from his wound, but the cause of his death was
due to said wound which was inflicted by the appellant. Said
wound which was in the process of healing got infected with
tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified
that the victim suffered lockjaw because of the infection of the
wound with tetanus. And there is no other way by which he could
be infected with tetanus except through the wound in his palm
(tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of
the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an
accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v.
Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's
death was due to his own negligence in going back to work
without his wound being properly healed, and lately, that he
went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt by
appellant to wiggle out of the predicament he found himself in. If
the wound had not yet healed, it is impossible to conceive that
the deceased would be reckless enough to work with a disabled
hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found
no tetanus in the injury, and that Javier got infected with tetanus when after
two weeks he returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by
Urbano was infected with tetanus at the time of the infliction of the wound.
The evidence merely confirms that the wound, which was already healing at
the time Javier suffered the symptoms of the fatal ailment, somehow got
infected with tetanus However, as to when the wound was infected is not
clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume
38, pages 695-696 of American Jurisprudence, cited by plaintiffsappellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred."And more
comprehensively, "the proximate legal cause is that acting first
and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain
of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause
which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury
and the appearance of unmistakable symptoms, ranges from 2
to 56 days. However, over 80 percent of patients become
symptomatic within 14 days. A short incubation period indicates

severe disease, and when symptoms occur within 2 or 3 days of

injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but the
commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often
complain of difficulty opening their mouths. In fact, trismus in the
commonest manifestation of tetanus and is responsible for the
familiar descriptive name of lockjaw. As more muscles are
involved,
rigidity
becomes
generalized,
and
sustained
contractions called risus sardonicus. The intensity and sequence
of muscle involvement is quite variable. In a small proportion of
patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are
involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first
symptom, an interval referred to as the onset time. As in the
case of the incubation period, a short onset time is associated
with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which
increases rigidity and causes simultaneous and excessive
contraction of muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease progresses, minimal
or inapparent stimuli produce more intense and longer lasting
spasms with increasing frequency. Respiration may be impaired
by laryngospasm or tonic contraction of respiratory muscles
which prevent adequate ventilation. Hypoxia may then lead to
irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least
14 days and an onset time of more than 6 days. Trismus is
usually present, but dysphagia is absent and generalized spasms
are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked,
dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe

tetanus include a short incubation time, and an onset time of 72

hrs., or less, severe trismus, dysphagia and rigidity and frequent
prolonged, generalized convulsive spasms. (Harrison's Principle
of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis
supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident
took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus because
the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier, however, died
on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound
could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before
he died.
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take necessary

precautions, with tetanus may have been the proximate cause of Javier's
death with which the petitioner had nothing to do. As we ruled in Manila
Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if
such remote cause did nothing more than furnish the condition
or give rise to the occasion by which the injury was made
possible, if there intervened between such prior or remote cause
and the injury a distinct, successive, unrelated, and efficient
cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed
in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent
negligent act or defective condition sets into operation the
instances which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of inflicting
slight physical injuries. However, the petitioner's criminal liability in this
respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano defrayed
the medical expenses of Javier. This settlement of minor offenses is allowed
under the express provisions of Presidential Decree G.R. No. 1508, Section
2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote
cause is limited to the criminal aspects of this rather unusual case. It does
not necessarily follow that the petitioner is also free of civil liability. The wellsettled doctrine is that a person, while not criminally liable, may still be
civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al.
(G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must
be established beyond reasonable doubt, only a preponderance
of evidence is required in a civil action for damages. (Article 29,
Civil Code). The judgment of acquittal extinguishes the civil

liability of the accused only when it includes a declaration that

the facts from which the civil liability might arise did not exist.
(Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code,
which provides that the acquittal of the accused on the ground
that his guilt has not been proved beyond reasonable doubt does
not necessarily exempt him from civil liability for the same act or
omission, has been explained by the Code Commission as
follows:
The old rule that the acquittal of the accused in a
criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal
system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to
a reasonable doubt in the mind of the court as to the
guilt of the accused. The reasoning followed is that
inasmuch as the civil responsibility is derived from
the criminal offense, when the latter is not proved,
civil liability cannot be demanded.
This is one of those causes where confused thinking
leads to unfortunate and deplorable consequences.
Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil
responsibility, and to determine the logical result of
the distinction. The two liabilities are separate and
distinct from each other. One affects the social order
and the other, private rights. One is for the
punishment or correction of the offender while the
other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so
different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: "There may
be a compromise upon the civil action arising from a
crime; but the public action for the imposition of the
legal penalty shall not thereby be extinguished." It is
just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the

offense should be proved beyond reasonable doubt.

But for the purpose of indemnity the complaining
party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of
every private right to be proved only by a
preponderance of evidence? Is the right of the
aggrieved person any less private because the
wrongful act is also punishable by the criminal law?
"For these reasons, the Commission recommends the
adoption of the reform under discussion. It will
correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable
persons injured or wronged."
The respondent court increased the P12,000.00 indemnification imposed by
the trial court to P30,000.00. However, since the indemnification was based
solely on the finding of guilt beyond reasonable doubt in the homicide case,
the civil liability of the petitioner was not thoroughly examined. This aspect
of the case calls for fuller development if the heirs of the victim are so
minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned
decision of the then Intermediate Appellate Court, now Court of Appeals, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
homicide. Costs de oficio.
SO ORDERED.
G.R. No. 74433 September 14, 1987
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.

SARMIENTO, J.:

This is an appeal from the decision of the Regional Trial Court of Palo, Leyte,
sentencing the accused-appellant Francisco Abarca to death for the complex
crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence imposed.
With the approval of the new Constitution, abolishing the penalty of death
and commuting all existing death sentences to life imprisonment, we
required the accused-appellant to inform us whether or not he wished to
pursue the case as an appealed case. In compliance therewith, he filed a
statement informing us that he wished to continue with the case by way of
an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban accuses
Francisco Abarca of the crime of Murder with Double Frustrated
Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of
Tacloban, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent to kill
and with evident premeditation, and with treachery, armed with
an unlicensed firearm (armalite), M-16 rifle, did then and there
wilfully, unlawfully and feloniously attack and shot several times
KHINGSLEY PAUL KOH on the different parts of his body, thereby
inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which
caused his instantaneous death and as a consequence of which
also caused gunshot wounds to LINA AMPARADO and ARNOLD
AMPARADO on the different parts of their bodies thereby
inflicting gunshot wounds which otherwise would have caused
the death of said Lina Amparado and Arnold Amparado, thus
performing all the acts of execution which should have produced
the crimes of murders as a consequence, but nevertheless did
not produce it by reason of causes independent of his will, that is
by the timely and able medical assistance rendered to Lina
Amparado and Arnold Amparado which prevented their death. 1
xxx xxx xxx

On arraignment, the accused-appellant pleaded not guilty. The Solicitor

General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca,
Jenny, had illicit relationship. The illicit relationship apparently
began while the accused was in Manila reviewing for the 1983
Bar examinations. His wife was left behind in their residence in
Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban,
Leyte. On the morning of that date he went to the bus station to
go to Dolores, Eastern Samar, to fetch his daughter. However, he
was not able to catch the first trip (in the morning). He went back
to the station in the afternoon to take the 2:00 o'clock trip but
the bus had engine trouble and could not leave (pp. 5-8, tsn,
Nov. 28, 1985). The accused, then proceeded to the residence of
his father after which he went home. He arrived at his residence
at the V & G Subdivision in Tacloban City at around 6:00 o'clock
in the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and
Khingsley Koh in the act of sexual intercourse. When the wife and
Koh noticed the accused, the wife pushed her paramour who got
his revolver. The accused who was then peeping above the builtin cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went
to the house of a PC soldier, C2C Arturo Talbo, arriving there at
around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went
back to his house at V & G Subdivision. He was not able to find
his wife and Koh there. He proceeded to the "mahjong session"
as it was the "hangout" of Kingsley Koh. The accused found Koh
playing mahjong. He fired at Kingsley Koh three times with his
rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado
who were occupying a room adjacent to the room where Koh was
playing mahjong were also hit by the shots fired by the accused
(pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died
instantaneously of cardiorespiratory arrest due to shock and
hemorrhage as a result of multiple gunshot wounds on the head,
trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh.

A): Arnold Amparado was hospitalized and operated on in the

kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also
exh. C). His wife, Lina Amparado, was also treated in the hospital
as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold
Amparado who received a salary of nearly P1,000.00 a month
was not able to work for 1-1/2 months because of his wounds. He
spent P15,000.00 for medical expenses while his wife spent
Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the
dispositive portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty
beyond reasonable doubt of the complex crime of murder with
double frustrated murder as charged in the amended
information, and pursuant to Art. 63 of the Revised Penal Code
which does not consider the effect of mitigating or aggravating
circumstances when the law prescribes a single indivisible
penalty in relation to Art. 48, he is hereby sentenced to death, to
indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of
Twenty Thousand Pesos (P20,000.00), without subsidiary
imprisonment in case of insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley Paul
Koh and defendant's wife had illicit relationship while he was
away in Manila; that the accused had been deceived, betrayed,
disgraced and ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to reflect
upon his acts. Considering all these circumstances this court
believes the accused Francisco Abarca is deserving of executive
clemency, not of full pardon but of a substantial if not a radical
reduction or commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the
President of the Philippines, thru the Ministry of Justice, Manila.
SO ORDERED.

xxx xxx xxx

The accused-appellant assigns the following errors committed by the court a
quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF
ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE
REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the Revised
Penal Code defining death inflicted under exceptional circumstances,
complexed with double frustrated murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional
circumstances. Any legally married person who, having
surprised his spouse in the act of committing sexual intercourse
with another person, shall kill any of them or both of them in the
act or immediately thereafter, or shall inflict upon them any
serious physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he
shall be exempt from punishment.
These rules shall be applicable, under the same circumstances,
to parents with respect to their daughters under eighteen years
of age, and their seducers, while the daughters are living with
their parents.
Any person who shall promote or facilitate prostitution of his wife
or daughter, or shall otherwise have consented to the infidelity of
the other spouse shall not be entitled to the benefits of this
article.

We agree with the Solicitor General that the aforequoted provision applies in
the instant case. There is no question that the accused surprised his wife and
her paramour, the victim in this case, in the act of illicit copulation, as a
result of which, he went out to kill the deceased in a fit of passionate
outburst. Article 247 prescribes the following elements: (1) that a legally
married person surprises his spouse in the act of committing sexual
intercourse with another person; and (2) that he kills any of them or both of
them in the act or immediately thereafter. These elements are present in this
case. The trial court, in convicting the accused-appellant of murder, therefore
erred.
Though quite a length of time, about one hour, had passed between the time
the accused-appellant discovered his wife having sexual intercourse with the
victim and the time the latter was actually shot, the shooting must be
understood to be the continuation of the pursuit of the victim by the
accused-appellant. The Revised Penal Code, in requiring that the accused
"shall kill any of them or both of them . . . immediately" after surprising his
spouse in the act of intercourse, does not say that he should commit the
killing instantly thereafter. It only requires that the death caused be the
proximate result of the outrage overwhelming the accused after chancing
upon his spouse in the basest act of infidelity. But the killing should have
been actually motivated by the same blind impulse, and must not have been
influenced by external factors. The killing must be the direct by-product of
the accused's rage.
It must be stressed furthermore that Article 247, supra, does not define an
offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in the
Code, the above-quoted article, far from defining a felony,
merely provides or grants a privilege or benefit amounting
practically to an exemption from an adequate punishment to a
legally married person or parent who shall surprise his spouse or
daughter in the act of committing sexual intercourse with
another, and shall kill any or both of them in the act or
immediately thereafter, or shall inflict upon them any serious
physical injury. Thus, in case of death or serious physical injuries,
considering the enormous provocation and his righteous

indignation, the accused who would otherwise be criminally

liable for the crime of homicide, parricide, murder, or serious
physical injury, as the case may be is punished only
withdestierro. This penalty is mere banishment and, as held in a
case, is intended more for the protection of the accused than a
punishment. (People vs. Coricor, 79 Phil., 672.) And where
physical injuries other than serious are inflicted, the offender is
exempted from punishment. In effect, therefore, Article 247, or
the exceptional circumstances mentioned therein, amount to an
exempting circumstance, for even where death or serious
physical injuries is inflicted, the penalty is so greatly lowered as
to result to no punishment at all. A different interpretation, i.e.,
that it defines and penalizes a distinct crime, would make the
exceptional circumstances which practically exempt the accused
from criminal liability integral elements of the offense, and
thereby compel the prosecuting officer to plead, and,
incidentally, admit them, in the information. Such an
interpretation would be illogical if not absurd, since a mitigating
and much less an exempting circumstance cannot be an integral
element of the crime charged. Only "acts or omissons . . .
constituting the offense" should be pleaded in a complaint or
information, and a circumstance which mitigates criminal liability
or exempts the accused therefrom, not being an essential
element of the offense charged-but a matter of defense that
must be proved to the satisfaction of the court-need not be
pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23
Phil., 368.)
That the article in question defines no crime is made more
manifest when we consider that its counterpart in the old Penal
Code (Article 423) was found under the General Provisions
(Chapter VIII) of Title VIII covering crimes against persons. There
can, we think, hardly be any dispute that as part of the general
provisions, it could not have possibly provided for a distinct and
separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal
Code does not define and provide for a specific crime, but grants

a privilege or benefit to the accused for the killing of another or

the infliction of serious physical injuries under the circumstances
therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is banished,
but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional
circumstances, not being a punishable act, cannot be qualified by either
aggravating or mitigating or other qualifying circumstances, We cannot
accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the
physical injuries suffered by Lina Amparado and Arnold Amparado who were
caught in the crossfire as the accused-appellant shot the victim. The Solicitor
General recommends a finding of double frustrated murder against the
accused-appellant, and being the more severe offense, proposes the
imposition of reclusion temporal in its maximum period pursuant to Article
48 of the Revised Penal Code. This is where we disagree. The accusedappellant did not have the intent to kill the Amparado couple. Although as a
rule, one committing an offense is liable for all the consequences of his act,
that rule presupposes that the act done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was
not committing murder when he discharged his rifle upon the deceased.
Inflicting death under exceptional circumstances is not murder. We cannot
therefore hold the appellant liable for frustrated murder for the injuries
suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from
any responsibility. Granting the fact that he was not performing an illegal act
when he fired shots at the victim, he cannot be said to be entirely without
fault. While it appears that before firing at the deceased, he uttered warning
words ("an waray labot kagawas,") 10that is not enough a precaution to
absolve him for the injuries sustained by the Amparados. We nonetheless
find negligence on his part. Accordingly, we hold him liable under the first
part, second paragraph, of Article 365, that is, less serious physical injuries
through simple imprudence or negligence. (The records show that Arnold
Amparado was incapacitated for one and one-half months; 11 there is no

showing, with respect to Lina Amparado, as to the extent of her injuries. We

presume that she was placed in confinement for only ten to fourteen days
based on the medical certificate estimating her recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we therefore
impose upon the accused-appellantarresto mayor (in its medium and
maximum periods) in its maximum period, arresto to being the graver
penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The accusedappellant is sentenced to four months and 21 days to six months of arresto
mayor. The period within which he has been in confinement shall be credited
in the service of these penalties. He is furthermore ordered to indemnify
Arnold and Lina Amparado in the sum of P16,000.00 as and for
hospitalization expense and the sum of P1,500.00 as and for Arnold
Amparado's loss of earning capacity. No special pronouncement as to costs.
IT IS SO ORDERED.
G.R. No. L-36858 June 20, 1988
PEOPLE
OF
THE
vs.
MACARIO A. ULEP, accused-appellant.

PHILIPPINES, plaintiff-appellee,

The Solicitor General for plaintiff-appellee.

Castor Naval for accused-appellant.

GANCAYCO, J.:
A man must love his wife. He must not lift a finger to hurt her. Indeed he
must be her protector. When against this unwritten rule he beats her, he
ceases to be a man. He becomes a beast. And the law imposes the supreme
penalty when in the process he kills her. It is parricide pure and simple.
This is what Macario A. Ulep, was convicted of by the Court of First Instance
of Ilocos Norte, Second Judicial District. He was sentenced to suffer the
penalty of reclusion perpetua, and to indemnify the heirs of the deceased in

the amount of P12,000.00 and to pay the costs in a decision of March 20,
1973.
The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in
San Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as a result of
physical injuries inflicted upon her on that very day by her husband, accused
Macario Ulep. The following day, the Chief of Police of San Nicolas, Ilocos
Norte received a report of the said death of Asuncion Pablo who allegedly
died of a heart attack. The Chief of Police and the Rural Health Officer went
to the house of the deceased and there they saw the body on a bamboo bed
surrounded by relatives, friends, and the husband of the deceased, Macario.
The Chief of Police suggested that an autopsy be conducted but the husband
refused to allow the same. However, the daughter of the deceased by a
previous marriage asked for a day or two to decide on her preference.
At the behest of the daughter, the request for an autopsy was made shortly
before the burial. Accordingly, the police chief and Dr. Eliseo Bonoan, a
physician, caught up with the funeral Procession at the Catholic cemetery
and thereupon conducted an autopsy on the deceased.
The autopsy reports read as follows:
POSTMORTEM EXAMINATION
Name: ASUNCION PABLO ULEP
Age: 42
Nationality: Filipino
Address: No. 24, San Nicolas, Ilocos Norte
Date: May 25, 1970
PATHOLOGICAL DIAGNOSIS
SKIN:
A rectangular area of about 1" x 3" bluish black in
color was noted on the upper half, anterior aspect of
the arm, left.

SKELETAL SYSTEM:
Complete fracture of the 4th, 5th, 6th and 7th ribs,
left. The 4th and 5th ribs fractured along the
midolavicular line, left. The 6th and 7th ribs fractured
along the anterior auxillary line, left. Presence of
extravascated blood and injuries of the surrounding
tissues of the broken ribs areas, left.
Complete fracture of the 3rd and 4th ribs at the
juncture of the rib and external cartillages with
concomitant injury to its sounding tissues and
extravascated blood, right side.
THORACIC CAVITY:
Presence of about 200 cc. of a serous fluid found
within the cavity.
Pleura lacerated at the points of fractures.
CARDIOVASCULAR SYSTEM:
Heart with small amount of clotted blood. Coronary
vessels congested. The big blood vessels contained
small amount of clotted blood.
ABDOMINAL CAVITY:
Presence of about 500 cc. of serous fluid within the cavity.
DIGESTIVE SYSTEM:
Apparently normal
CENTRAL NERVOUS SYSTEM:
The meningeal vessels were congested.
CAUSE OF DEATH:
CARDIAC ARREST

PRIMARY SHOCK.
(Exh. D, p. 16, rec.).

Two weeks after the burial, two (2) constabulary sergeants investigated
Macario Ulep. A statement was prepared and signed by the accused and was
subsequently sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this
statement, marked as Exhibit "A", he admitted that he caused the death of
his wife by elbowing her because his wife was then drunk and was uttering
indecent words. The following day, PC sergeant Damian Bautista of Camp
Juan, Laoag City conducted another investigation of accused Macario Ulep.
His statement was reduced to writing and then subscribed to before Fiscal
Abaya. He reiterated that the cause of death of his wife, Asuncion Pablo, was
his elbowing her on her breast. This statement was marked Exhibit "B".
Ulep narrated that this elbowing and attack took place at their home at 5:30
in the afternoon. She vomitted and then went to bed, The accused then left
for the fields and returned at around 9:00 in the evening and found his wife
dead on her bed. He reported this death to their barrio captain.
Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep
retracted his statement in court by narrating that more than a year before
that, and while his wife went to have their palay milled, their bullcart loaded
with sacks of rice turned upside down and pinned his wife on her breast. With
the pain in her chest, she was treated by a country quack doctor or
"arbularyo."
The accused took exception to his conviction when he raised the following
errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF
DEATH OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY
THE ACCUSED-APPELLANT ON HER BREAST, AS ADMIRED BY HIM
IN HIS AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH
TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF
ON HIS PART.
II

THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF

DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG
STANDING PROCESS OR CONDITION IN HER BODY SYSTEM, AS
TESTIFIED TO BY DR. PEDRO BLANCO FOR THE DEFENSE.
III
THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING
HIM OF THE CRIME OF PARRICIDE.
Our primary concern is to determine the cause of death of Asuncion Pablo,
the wife, of the accused. Was her death a result of cardiac arrest and primary
shock due to fractured ribs? The appellant alleges that the gradual
weakening of the heart due to a long standing illness of the body system
caused the cardiac arrest which claimed the life of Asuncion Pablo.
The post-mortem report on the deceased was prepared by Dr. Eliseo V.
Bonoan who conducted an autopsy at the behest of a daughter of tile
deceased by a previous marriage. The husband who previously denied
permission to conduct an autopsy was present when the autopsy was
performed shortly before the body was buried at the cemetery of San
Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the cause of
death was manifestly due to cardiac arrest and primary shock. We agree and
see no fault in this finding made in the necropsy report of Dr. Bonoan.
The defense took exception to Dr. Bonoan's testimony that the fractures in
the chest could have been caused by blows or physical pressure. Could such
injuries not have been inflicted by elbow blows when the victim was standing
or by knee or feet blows when the victim was lying on her back or was sitting
with her back against the wall?
While the accused admitted that he delivered several elbow blows on the
chest of his wife immediately before her death and the prosecution
attributed these blows as the proximate cause of the cardiac arrest and
primary shock which resulted in the wife's death, the defense assails this
theory of the prosecution in the following manner:
First, there were no contusions on the chest of the victim. This
indicates that the elbow blows were not of sufficient force to
fracture the ribs. This is so because a fracture necessarily results
in the extravasation of blood in the fractured area and it is the

extravasated blood that causes the swelling or contusion. 2 Dr.

Blanco attributes the absence of swelling or contusion on the
chest, where the fractures were found, to the fact that the
fracture conditions Were of long standing; that is, some repairs
has happened and that sufficient time have elapsed for the
swelling to disappear (t.s.n., p. 180).
Second, even on the theory that fractures of the ribs as that
found by Dr. Bonoan were present, the same could have not
caused cardiac arrest and primary shock. This is so because only
extravasated blood was present around the immediate area of
the fractures, This means that the fractures were not depressed
or that the fractured ends did not cave-in, so as to injure the
heart and impede its functions to cause cardiac arrest. The claim
of Dr. Bonoan that the chest is pliant and is like an accordion
which can be compressed is puerile to say the least. Even so, the
elbow blows of the accused could not have caused a
compression of the chest wall, no matter how pliant it could be.
And even on the theory that the fractures were caused by
stamping the foot on a piece of wood placed on the chest, while
the victim was lying on her back, still the fractures could not
have injured the heart or impede its functions to cause cardiac
arrest, because the fractures, were not depressed fractures or
cave-in fractures. The fractures merely caused the extravasation
of blood within the fractured areas. And neither would the
fractures cause primary shock because they were merely
complete fractures; which means a mere breakage that would
not cause the stoppage of the heart, because it does not tend to
compress the heart. 3
And third, although the pleura or thoracic cavity was lacerated at
the points of fracture, the same could not have caused cardiac
arrest or primary shock because the lacerations were limited to
the pleura. The points of fracture did not cave-in or were not
depressed and they did not injure or impede the heart to cause
cardiac arrest. Neither did the lacerations of the pleura cause
primary shock because blood did not spill into the pleura, which
indicates that the hemorrhage was nil. This is so because the
serous fluid in the pleura -as not reddish.

On the contrary, the evidence of the prosecution shows that the

deceased died of cardiac arrest because of the weakening of the
heart due to a long standing process or condition in her body
system. Thus the theory of the defense is strengthened by the
very evidence of the prosecution. 4
Furthermore, both sides in this case took issue to the presence of 200 cc. of
serous fluid in the pleura. The appellant claims that it is not normal whereas
the prosecution says that the pleura normally contains 100 to 200 cc. of
serous fluid and that this is normal. Anyway both agree that there should be
enough serous fluid to lubricate the tissues.
The presence of 500 cc. of serous fluid in the abdominal cavity which,
according to Dr. Blanco, the physician, witness for the appellant, may be due
to the chronic condition of the kidney like nephritis and edema or the
hardening of the liver or a long progressively weakening of the heart. 5 Dr.
Bonoan did not concur in this view when he said that the fluid was rather
increased as a result of the diffusion of the medicine used in the
embalming. 6 We find cogent basis in the explanation given by Dr. Bonoan.
Another point raised in the necropsy report pertains to the presence of
clotted blood in the heart and blood vessels as well as the congestion of the
meningeal vessels. The appellant bares that this is a sign of the hardening of
the heart. Dr. Bonoan of the prosecution disclosed that there were no signs of
circulatory weakening and that blood clots were not found adherent to the
heart and such being the condition there could be no abnormality and thus
he further declares that such clots are normally found in the heart of a dead
person or in any part of the circulatory system. 7
There is an admission by Dr. Blanco, the appellant's witness, that he has not
"attended a case of fractured ribs" 8and that he explains cardiac failure as a
"failing of the heart" and his further concept is that it is "the stopping of the
heart." He says that such stoppage could be due to trauma, such as a
fracture of the ribs. 9
A resume of the evidence presented by the parties establishes the fact of
death of Asuncion Pablo on May 21, 1970. She was legally married to Macario
Ulep, the appellant herein. The death, established in two affidavits, Exhibits
"A" and "B," was caused by said accused. In these affidavits, the appellant
admitted that he elbowed and attacked his wife. This attack caused the
complete fracture of the 4th, 5th, 6th and 7th ribs on her left chest and the

3rd, and 4th ribs, right chest of Asuncion Pablo on the same evening of May
21, 1970. The trial judge observed: "There was never any attempt on the
part of the accused to repudiate the sworn statements wherein he admitted
that the cause of death of his wife was his having elbowed her many times
on her breast." 10
Having realized the gravity of his act, the appellant presented a witness to
prove that sometime in February or March, 1969 his wife was pinned down
by a sack of rice and the side portion of a bullcart and was attended to by a
town quack doctor called an arbularyo. This witness said that two (2) ribs on
each side of the chest were fractured, without stating which particular ribs
were so affected.
From all these observations, findings, and an incisive study of the necropsy
report, the cause of death of the wife-victim in this case is cardiac arrest and
primary shock caused by the strong pressure applied on the upper front
chest bone. This happens when one steps, kneels or presses the body of a
victim against a wall. The man-size blows coming from the elbow of the
aggressor upon a thin-framed woman can only bring about fatal results.
We find relevance in Wharton and Stilles' findings in their book, Medical
Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the shock
associated with the injury. The possibility of a person dying from
the shock attendant upon an injury which, by itself appears to be
unimportant is attested by experience. No satisfactory
explanation of the cause of the shock seems to have been found,
though it is due in some way to the upsetting of the nervous
equilibrium of the body. Shock from an injury may be fatal even
when the blow leaves no trace behind it; as, for instance, when a
person receives a violent blow upon the pit of the stomach, or
behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et
al., 11 the deceased had received injuries to the abdomen by kick
and blows, but there were no marks of bruises present, or
anything to show the cause of death. Death however, had
followed twenty minutes after the maltreatment and was
evidently due to the shock. The prisoners were convicted of
murder. 12
We have previously stated that:

Even if the victim is suffering from an internal ailment, liver or

heart disease, or tuberculosis, if the blow delivered by the
accused
(a) is the efficient cause of death; or
(b) accelerated his death; or
(c) is the proximate cause of death; then there is criminal
liability. 13
Apropos to all these is that time-respected doctrine: "He who is the cause of
the cause is the cause of the evil caused." This is the rationale in Article 4 of
the Revised Penal Code which provides that "criminal liability shall be
incurred by a person committing a felony (delito) although the wrongful act
done be different from that which he intended."
Again, We elucidated that: even though a blow with the fist or a kick does not
cause any external wound, it may easily produce inflammation of the spleen
and peritonitis and cause death, and even though the victim may have been
previously affected by some internal malady, yet if the blow with the fist or
foot accelerated death, he who caused such acceleration is responsible for
the death as the result of an injury willfully and unlawfully inflicted. 14
We are, therefore, convinced that there is no fundamental disagreement
between the two medical witnesses as to the cause of the victim's death and
that cardiac arrest and primary shock took away the life of the victim,
Asuncion Pablo.
There is that clear and categorical showing that on the appellant fell the
blame for these in human acts on his wife. He should answer for her tragic
death.
The indemnity to the heirs of his deceased wife should be increased to
P30,000.00.
WHEREFORE, with the above modification as to indemnity, the judgment
appealed from is hereby AFFIRMED in all other respects.
SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. L-34665

August 28, 1931

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
DONATO BINDOY, defendant-appellant.

ISLANDS, plaintiff-appellee,

Florentino
Saguin
Attorney-General Jaranilla for appellee.

for

appellant.

VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of Occidental
Misamis to the penalty of twelve years and one day of reclusion temporal,
with the accessories of law, to indemnify the heirs of the deceased in the
amount of P1,000, and to pay the costs. The crime charged against the
accused is homicide, according to the following information:
That on or about the 6th of May, 1930, in the barrio of Calunod,
municipality of Baliangao, Province of Occidental Misamis, the accused
Donato Bindoy willfully, unlawfully, and feloniously attacked and with
his bolo wounded Emigdio Omamdam, inflicting upon the latter a
serious wound in the chest which caused his instant death, in violation
of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his counsel
in this instance contends that the court erred in finding him guilty beyond a
reasonable doubt, and in convicting him of the crime of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance arose
in a tuba wineshop in the barrio market of Calunod, municipality of
Baliangao, Province of Occidental Misamis, started by some of
the tubadrinkers. There were Faustino Pacas (alias Agaton), and his wife
called Tibay. One Donato Bindoy, who was also there, offered some tuba to
Pacas' wife; and as she refused to drink having already done so, Bindoy
threatened to injure her if she did not accept. There ensued an interchange
of words between Tibay and Bindoy, and Pacas stepped in to defend his wife,
attempting to take away from Bindoy the bolo he carried. This occasioned a
disturbance which attracted the attention of Emigdio Omamdam, who, with
his family, lived near the market. Emigdio left his house to see what was

happening, while Bindoy and Pacas were struggling for the bolo. In the
course of this struggle, Bindoy succeeded in disengaging himself from Pacas,
wrenching the bolo from the latter's hand towards the left behind the
accused, with such violence that the point of the bolo reached Emigdio
Omamdam's chest, who was then behind Bindoy.
There is no evidence that Emigdio took part in the fight between Bindoy and
Pacas. Neither is there any indication that the accused was aware of Emigdio
Omamdam's presence in the place, for, according to the testimony of the
witnesses, the latter passed behind the combatants when he left his house to
satisfy his curiosity. There was no disagreement or ill feeling between Bindoy
and Omamdam, on the contrary, it appears they were nephew and uncle,
respectively, and were on good terms with each other. Bindoy did not try to
wound Pacas, and instead of wounding him, he hit Omamdam; he was only
defending his possession of the bolo, which Pacas was trying to wrench away
from him, and his conduct was perfectly lawful.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he lay
dying, tallies with the size of the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced Emigdio
Omamdam's death, but the defendant alleges that it was caused accidentally
and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having seen
the accused stab Omamdam with his bolo. Such testimony is not
incompatible with that of the accused, to the effect that he wounded
Omamdam by accident. The widow testified that she knew of her husband's
wound being caused by Bindoy from his statement to her before his death.
The testimony of the witnesses for the prosecution tends to show that the
accused stabbed Omamdam in the chest with his bolo on that occasion. The
defendant, indeed, in his effort to free himself of Pacas, who was
endeavoring to wrench his bolo from him, hit Omamdam in the chest; but, as
we have stated, there is no evidence to show that he did so deliberately and
with the intention of committing a crime. If, in his struggle with Pacas, the
defendant had attempted to wound his opponent, and instead of doing so,
had wounded Omamdam, he would have had to answer for his act, since
whoever willfully commits a felony or a misdemeanor incurs criminal liability,

although the wrongful act done be different from that which he intended.
(Art. 1 of the Penal Code.) But, as we have said, this is not the case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant
to the effect that Pacas and Bindoy were actually struggling for the
possession of the bolo, and that when the latter let go, the former had pulled
so violently that it flew towards his left side, at the very moment when
Emigdio Omamdam came up, who was therefore hit in the chest, without
Donato's seeing him, because Emigdio had passed behind him. The same
witness adds that he went to see Omamdam at his home later, and asked
him about his wound when he replied: "I think I shall die of this wound." And
then continued: "Please look after my wife when I die: See that she doesn't
starve," adding further: "This wound was an accident. Donato did not aim at
me, nor I at him: It was a mishap." The testimony of this witness was not
contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind, which, had it
existed, would have greatly facilitated the solution of this case. And we deem
it well to repeat what this court said in United States vs. Carlos (15 Phil., 47),
to wit:
The attention of prosecuting officers, and especially of provincial
fiscals, directed to the importance of definitely ascertaining and
proving, when possible, the motives which actuated the commission of
a crime under investigation.
In many criminal cases one of the most important aids in completing
the proof of the commission of the crime by the accused is the
introduction of evidence disclosing the motives which tempted the
mind of the guilty person to indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that the
appellant is entitled to acquittal according to article 8, No. 8, Penal Code.
Wherefore, the judgment appealed from is reversed, and the accused Donato
Bindoy is hereby acquitted with costs de oficio. So order
G.R. No. L-32066

March 15, 1903

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee,

vs.
GONA (Mansaca), defendant and appellant.

Jose
Ma.
Capili
Attorney-General Jaranilla for appellee.

for

appellant.

OSTRAND, J.:
The defendant was charged before the Court of First Instance of the Province
of Davao with the crime of homicide, the information reading as follows:
That on or about October 26, 1928, in the municipal district of
Pantukan, Province of Davao, Philippine Islands, as within the
jurisdiction of the court, the said accused voluntarily, illegally, and
criminally and with a bolo which he then carried, assaulted
the Mansaca Mapudul, causing him a mortal wound on the left side of
the neck and that as a consequence of said wound, the said Mapudul
died.
Upon trial the court below found the defendant guilty as charged in the
information and taking into consideration the extenuating circumstance of
non-habitual intoxication, sentenced him to suffer twelve years and one
ofreclusion temporal with the accessory penalties prosecuted by law to
indemnity the heirs of the deceased in the sum of P1,000, and to the costs.
From this sentenced the defendant appealed.
It appears from the evidence that on the evening of October 26, 1928, a
number
of Mansacas celebrated
a
reunion
in
the
house
of
the Mansaca Gabriel. There seems to have been liberal supply of alcoholic
drinks and some of the men present became intoxicated, with the result that
a quarrel took the place between the MansacaDunca and the defendant.
Dunca and his son Aguipo eventually left the house and were followed by
Mapudul and one Award. The defendant left the house about the same time
with intention of assaulting Dunca, but in the darkness of the evening and in
the intoxicated condition of the defendant, the mistook Mapudul for Dunca
and inflicated on him a mortal wound with a bolo.
There can no doubt that the defendant killed Mapudul and that he is guilty of
the crime charged, but his attorney argues that in view of the fact that said
defendant had no intention to kill the deceased and committed the crime by
mistake, he should have been found guilty of homicide through negligence
under paragraph 1 of article 568 of the Penal Code and not of the graver
crime of intentional homicide.

This contention is contrary to earlier decisions of this court. In these case of

United State vs. Mendieta(34 Phil., 242), the court said:
Even admitting that the defendant intended to injure Hilario Lauigan
instead of Pedro Acierto, even that, in view of the mortal wound which
inflicted upon the latter, in no way could be considered as a relief from
his criminal act. That he made a mistake in killing one man instead of
another, when it is proved that he acted maliciously and willfully,
cannot relieve him from criminal responsibility. Neither do we believe
that the fact that he made a mistake in killing the wrong man should
be considered as a mitigating circumstances.
The appealed sentence is affirmed with the costs against the defendant. So
ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.
G.R. No. L-25459

August 10, 1926

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
RAMON MABUG-AT, defendant-appellant.
Vicente
Sotto
Attorney-General Jaranilla for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-at
the penalty of twelve years and one day cadena temporal, with the
accessories of the law, to indemnify the offended party in the sum of P700
and to pay the costs, for the crime of frustrated murder.
The appellant appealed from this judgment, making two assignments of error
as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder, and
2. In not giving any credit to the evidence presented by the defense,
finding the defendant guilty beyond a reasonable doubt.

The evidence of the prosecution shows that the accused and Juana Buralo
was sweethearts. Juana had been jealous of the accused on account of the
latter having frequently visited the house of one Carmen. Their relations
were such that the accused invited Juana to take a walk on the afternoon of
August 9, 1925. Juana refused him, later sending him a note of excuse. On
the third day, or the night of August 11th, the accused went to the threshold
of Cirilo Banyan's house where Juana Buralo had gone to take part in some
devotion. There the accused, revolver in hand, requested Francisco Abellon
to ask Juana to come downstairs and as Abellon refused to do so, the
accused said: "If you do not want to go upstairs, I will get Juana and if
anyone tries to defend her I will kill him."
The accused waited until Juana and her niece Perfecta Buralo came
downstairs, when they went in the direction of their house. The accused, who
was seen by the two girls, followed them without saying a word. It is only a
short distance from the house where the devotion took place to that of the
offended party, the houses being adjacent. As the two girls were going
upstairs, the accused, while standing at the foot of the stairway, fired a shot
from his revolver which wounded Perfecta Buralo, the bullet passing through
a part of her neck, having entered the posterior region thereof and coming
out through the left eye, which was completely destroyed. Due to proper
medical attention, Perfecta Buralo did not die and is on e of the witnesses
who testified at the trial of this case.
The defense, without abandoning its allegation that the accused is not
responsible for the crime, contends that the crime proven is not frustrated
murder but the discharge of a firearm, with injuries, it not having been
proven that it was the accused's intention to kill.
The relations existing between the accused and Juana Buralo, his
disappointment at her not accepting his invitation to take a walk, the fact
that the accused, revolver in hand, went to look for Juana Buralo at the
house where the devotion was being held, later following her to her house,
and especially having aimed at her person--the head--are facts which, in our
opinion, permit of no other conclusion than that, in firing the shot, it was the
accused's intention to kill.
In the decision of this court in the case of United States vs. Montenegro (15
Phil., 1), it was held:

We do not doubt that there may be cases wherein the discharge of a

firearm at another is not in itselfsufficient to sustain a finding of the
intention to kill, and there are many cases in the books wherein the
attendant circumstances conclusively establish that on discharging a
firearm at another the actor was not in fact animated by the intent to
kill. But, in seeking to ascertain the intention with which a specific act
is committed, it is always proper and necessary to look not merely to
the act itself but to all the attendant circumstances so far as they are
developed by the evidence; and where, as in the case at bar, a
revolver is twice discharged point-blank at the body of another, and
the shots directed at the most vital parts of the body, it needs but little
additional evidence to establish the intent to kill beyond a reasonable
doubt.
The fact that a person received the shot which was intended for another,
does not alter his criminal liability. (Art. 1, par. 3, Penal Code.)
The circumstances qualifying the murder alleged in the complaint are
evidence premeditation and treachery. Even when there is sufficient proof of
premeditation (which we do not believe has been sufficiently established),
yet, it cannot be considered as a qualifying circumstance in the present case,
because the person whom the accused intended to kill was not Perfecta
Buralo, who was hit by the bullet, but her aunt Juana Buralo. Had evident
premeditation been proven, and there being no other qualifying
circumstance of frustrated murder present in this case, the acts should be
held to be frustrated homicide and punished with the maximum degree of
the penalty prescribed by law. (Question 2, p. 28, 1890 ed., Viada's Penal
Code.) But, the fact is that treachery was proven and must be taken into
consideration in this case, because the accused fired at Perfecta Buralo,
employing means which tended to insure the execution of the crime without
running any risk himself from anyone who might attempt to defend the said
offended party. The treachery which, according to the evidence, would have
attended the crime had the bullet hit Juana Buralo was present in this case
because the offended party Perfecta Buralo and Juana were going upstairs
with their backs towards the accused when he fired his revolver. The
Supreme Court of Spain, in a decision of May 7, 1885 (Viada, do., pp. 29, 30),
in holding a crime to be murder and not homicide, stated the following:
Considering that, according to the concept of treachery as it is
explained in article 10 of the Civil code dealing with said circumstance,

it is evident that in firing the gun which Alejandro Sola was carrying
which caused the death of Nazario Iigo, he employed means which
tended to insure the commission of the crime without any risk to
himself arising from any defense that might be made by the offended
party, for neither the wounded party Bartolome Lobejano, at whom the
shot was aimed in order to kill him so that he might not testify as to
the assault committed upon him shortly before, as held by the trial
court, was not in a position to defend himself in any way, nor could
Nazario Iigo become aware of any attack so unjustified, rapid and
unforeseen; considering, further, that the purely accidental
circumstance that as a result of the shot a person other than the one
intended was killed, does not modify, in the instant case, the elements
constituting the crime of murder qualified by the treachery with which
Alejandro Sola acted, whether with respect to the wounded Bartolome
Lobejano or to the deceased Nazario Iigo, for which reason the rules
of article 65 are not applicable herein, the culprit not having, in fact,
committed a crime different from that which he intended, taking into
consideration the substantial and intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated murder, the
doctrine sustained therein is applicable to the case at bar so far as the
concurrence of treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused having intended
to kill and performed all the acts of execution, which would have produced
the crime of murder but which, nevertheless, did not produce it by reason of
causes independent of his will. (Art. 3, Penal Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that the facts
enumerated above constitute the crime of frustrated murder.
With the exception of the qualifying circumstance of treachery, we find no
other aggravating circumstance.
The judgment appealed from being in accordance with the law and the facts
proven, the same is hereby affirmed in all its parts costs against the
appellant. So ordered.
G.R. No. L-38511

October 6, 1933

THE
PEOPLE
OF
THE
vs.
FRANCISCO
CAGOCO
CAGURO, alias FRANCISCO
GUY), defendant-appellant.

PHILIPPINE
Y

ISLANDS, plaintiff-appellee,

RAMONES
(alias FRANCISCO
ADMONES, aliasBUCOY, alias FRISCO

W.A.
Caldwell
and
Sotto
and
Astilla
Office of the Solicitor-General Bengzon for appellee.

for

appellant.

VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with the
crime of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of Manila,
Philippine Islands, the said accused did then and there willfully,
unlawfully and feloniously, without any just cause therefor and with
intent to kill and treachery, assault and attack one Yu Lon by suddenly
giving him a fist blow on the back part of the head, under conditions
which intended directly and especially to insure, the accomplishment
of his purpose without risk to himself arising from any defense the
victim Yu Lon might make, thus causing him to fall on the ground as a
consequence of which he suffered a lacerated wound on the scalp and
a fissured fracture on the left occipital region, which were necessarily
mortal and which caused the immediate death of the said Yu Lon.
After hearing the evidence, Judge Luis P. Torres found the defendant guilty as
charged, and sentenced him to suffer reclusion perpetua, with the accessory
penalties of the law, to indemnify the heirs of the deceased Yu Lon in the
sum of P1,000, without subsidiary imprisonment in case of insolvency, and to
pay the costs.
Appellant's attorney de oficio makes the following assignments of error:
1. The trial court erred in finding that the appellant the person who
committed the assault on Yu Lon, the victim to the crime charged in
the information.

2. Assuming that the appellant is the person who committed the

assault on Yu Lon (a fact which we specifically deny), the trial court
erred in finding that the appellant struck his supposed victim.
3. Assuming that the appellant is the person who committed the
assault on Yu Lon, and that the appellant did strike his supposed victim
(facts which we specifically deny) the trial court erred in finding that
the blow was dealt from the victim's rear.
4. The trial court erred in finding that the identity of the appellant was
fully established.
5. Assuming that the four preceding errors assigned are without merit,
the trial court erred in convicting the appellant of the crime of murder,
under article 248 of the Revised Penal Code, instead of convicting him
of the crime of maltreatment, under article 266 of the said Code.
It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu
Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the corner
of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon
was standing near the outer edge of the sidewalk, with his back to the street.
While they were talking, a man passed back and forth behind Yu Lon once or
twice, and when Yu Yee was about to take leave of his father, the man that
had been passing back the forth behind Yu Lon approached him from behind
and suddenly and without warning struck him with his fist on the back part of
the head. Yu Lon tottered and fell backwards. His head struck the asphalt
pavement; the lower part of his body fell on the sidewalk. His assailants
immediately ran away. Yu Yee pursued him through San Fernando, Camba,
and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin
Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident
and joined him in the pursuit of Yu Lon's assailant. The wounded man was
taken to the Philippine General Hospital, were he died about midnight. A
post-mortem examination was made the next day by Dr. Anastacia Villegas,
who found that the deceased had sustained a lacerated wound and fracture
of the skull in the occipital region, and that he had died from cerebral
hemorrhage; that he had tuberculosis, though not in an advanced stage, and
a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3 o'clock the
next morning Sergeant Sol Cruz and other detectives, accompanied by Yu
Yee, went to the scene of the crime and found blood stains in the street. Yu

Yee said that he could recognize his father's assailant, and described him as
being about five feet in height, 25 or 30 years old, with long hair and wearing
a suit of dark clothes. After Sergeant Sol Cruz had been working on the case
for three or four days he received information that the accused might be the
person that had assaulted Yu Lon, and on August 4th the accused was
arrested by detectives Manrique and Bustamante. He was wearing a dark
wool suit. Yu Yee was immediately called to the police station. The accused
was placed near the middle of a line of some eleven persons that had been
detained for investigation. They were wearing different kinds of clothes. Yu
Yee without hesitation pointed out the defendant as the person that had
assaulted Yu Lon. He identified him not only by his long hair combed towards
the back and worn long on the sides in the form of side-whiskers (patillas),
but also by his high cheek-bones and the fact that his ears have no lobes.
The defendant was identified at the trial not only by Yu Yee, but also by Chin
Sam and Yee Fung.
With respect to the first four assignment of error, which raise questions of
fact as to the identification of the accused, and whether or not be struck the
deceased, and if he did assault the deceased, whether he did so in a
treacherous manner, we see no sufficient reason, after considering the
evidence and arguments of counsel, to doubt the correctness of the findings
of the trial judge. The accused was identified by Yu Yee and two other
Chinese, and although Yu Yee may have overstated at the trial some of the
facial peculiarities in the defendant that he claimed to have observed at the
time of the incident, it must be remembered that Yu Yee without hesitation
picked the defendant out of a group of eleven persons as his father's
assailant, and that he had exceptional opportunities for observing his father's
assailant, because while that person was walking back and forth behind Yu
Lon, Yu Yee was facing the assailant.
We find the testimony of the defendant and his witnesses as to the
whereabouts of the defendant on the night in question unworthy of
credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased and then
ran away is corroborated by the testimony of a 15-year old boy, Dominador
Sales.
As to the contention that the deceased would have fallen on his face if he
had been struck on the back of the head, the expert testimony shows that in

such a case a person instinctively makes an effort to preserve or regain his

balance, and that as result thereof the deceased may have fallen backwards.
Another consideration is that sidewalks almost invariably slope towards the
pavement, and this being true, when the deceased straightened up, he
naturally tended to fall backwards. The evidence leaves no room for doubt
that the accused struck the deceased on the back of the head, because
when the deceased was assaulted he and Yu Yee were standing on the
sidewalk, facing each other, and if the accused had not struck the deceased
on the back of the head, it would have been necessary for him to go between
the deceased and Yu Yee. Since the accused struck the deceased from
behind and without warning, he acted with treachery. "There is treachery
when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and
especially to insure its execution, without risk to himself arising from the
defense which the offended party might make." (Article 14, No. 16, of the
Revised Penal Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if guilty at
all, should be punished in accordance with article 266 of the Revised Penal
Code, or for slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal
liability shall be incurred by any person committing a felony (delito) although
the wrongful act done be different from that which he intended; but in order
that a person may be criminally liable for a felony different from that which
he proposed to commit, it is indispensable that the two following requisites
be present, to wit: (a) That a felony was committed; and (b) that the wrong
done to the aggrieved person be the direct consequence of the crime
committed by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29
Phil., 14 U.S. vs. Diana, 32 Phil., 344.)
In the Brobst case, supra, it was held that death may result from a blow over
or near the heart or in the abdominal region, notwithstanding the fact that
the blow leaves no outward mark of violence; that where death result as the
direct consequence of the use of illegal violence, the mere fact that the
diseased or weakened condition of the injured person contributed to his
death, does not relieve the illegal aggressor of criminal responsibility; that
one is not relieved, under the law in these Islands, from criminal liability for

the natural consequences of one's illegal acts, merely because one does not
intend to produce such consequences; but that in such cases, the lack of
intention, while it does not exempt from criminal liability, is taken into
consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar. There
can be no reasonable doubt as to the cause of the death of Yu Lon. There is
nothing to indicate that it was due to some extraneous case. It was clearly
the direct consequence of defendants felonious act, and the fact that the
defendant did not intend to cause so great an injury does not relieve him
from the consequence of his unlawful act, but is merely a mitigating
circumstance (U.S. vs. Rodriguez, 23 Phil., 22).
The next question is whether the crime committed by the defendant should
be classified as homicide or murder. Can the defendant be convicted of
murder when he did not intend to kill the deceased?
We have seen that under the circumstances of this case the defendant is
liable for the killing of Yu Lon, because his death was the direct consequence
of defendant's felonious act of striking him on the head. If the defendant had
not committed the assault in a treacherous manner. he would nevertheless
have been guilty of homicide, although he did not intend to kill the
deceased; and since the defendant did commit the crime with treachery, he
is guilty of murder, because of the presence of the qualifying circumstance of
treachery.
The Supreme Court of Spain has held that there is no incompatibility, moral
or legal, between alevosia and the mitigating circumstance of not having
intended to cause so great an injury:
Considering that there is no moral or legal incompatibility between
treachery and the mitigating circumstance No. 3 of article 9 of the
Penal Code, because the former depends upon the manner of
execution of the crime and the latter upon the tendency of the will
towards a definite purpose, and therefore there is no obstacle, in case
treacherous means, modes or forms are employed, to the appreciation
of the first of said circumstances and simultaneously of the second if
the injury produced exceeds the limits intended by the accused; and
for that reason it cannot be held in the instant case that this mitigating
circumstances excludes treachery, or that the accused, being
chargeable with the death of the offended party, should not be liable

due to the voluntary presence of treachery in the act perpetrated,

although with mitigation corresponding to the disparity between the
act intended and the act consummated, etc. (Decision of May 10,
1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court
speaking through Chief Justice Arellano said:
In trying Jacinto to a tree the three defendants acted treacherously
(alevosamente). Whether it was to prevent him from making
resistance, whether it was to torture him for the purpose of making him
give information, or whether it was for the purpose of inflicting further
punishment, the fact is that by this means the defendants secured
themselves against any risk which might have arisen from an attempt
at self-defense on the part of the victim. We are of opinion that they
had no intention to cause so great an evil as that which resulted, but
this does not neutralize that other qualifying circumstance of the
resulting death, because if there was no alevosia for the purpose of
killing there was alevosia for the purpose of the illtreating. The means
employed were not made use of for the precise purpose of making
certain the death of Jacinto de Jesus but as a safe means of illtreating
him without risk to the persons who were doing so. If by this means the
ill treatment was aggravated, it follows that it is a qualifying
circumstances in the death which resulted. It was not a condition of the
purpose, but it was a condition of the criminal act itself, in whatever
sense this be taken.
The penalty of murder (article 248 of the Revised Penal Code) is reclusion
temporal in its maximum period to death, and there being present in this
case one mitigating and no aggravating circumstance the prison sentence of
the appellant is reduced to seventeen years, four months, and one day
of reclusion temporal. As thus modified, the decision appealed from is
affirmed, with the costs against the appellant.
Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.
G.R. No. 103119 October 21, 1992
SULPICIO
vs.

INTOD, petitioner,

HONORABLE
COURT
OF
PHILIPPINES, respondents.

APPEALS

and

PEOPLE

OF

THE

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the
Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court,
Branch XIV, Oroquieta City, finding him guilty of the crime of attempted
murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos
Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to go with them to the house
of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian,
Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya
that he wanted Palangpangan to be killed because of a land dispute between
them and that Mandaya should accompany the four (4) men, otherwise, he
would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and her
home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One
witness testified that before the five men left the premises, they shouted:
"We will kill you (the witness) and especially Bernardina Palangpangan and
we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The
court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was
guilty of attempted murder. Petitioner seeks from this Court a modification of

the judgment by holding him liable only for an impossible crime, citing Article
4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility
shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on
the night he and his companions riddled it with bullets made the crime
inherently impossible.
On the other hand, Respondent People of the Philippines argues that the
crime was not impossible. Instead, the facts were sufficient to constitute an
attempt and to convict Intod for attempted murder. Respondent alleged that
there was intent. Further, in its Comment to the Petition, respondent pointed
out that:
. . . The crime of murder was not consummated, not because of
the inherent impossibility of its accomplishment (Art. 4(2),
Revised Penal Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous desistance (Art.
3., Ibid.) Palangpangan did not sleep at her house at that time.
Had it not been for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This
seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have set
about doing the deed, employing appropriate means in order
that his intent might become a reality, and finally, that the result
or end contemplated shall have been physically possible. So long
as these conditions were not present, the law and the courts did
not hold him criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised
Penal Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an
offense against person or property because: (1) the commission of the
offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense
is inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. 11 There must be either
impossibility of accomplishing the intended act 12 in order to qualify the act
an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would
not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1)
the motive, desire and expectation is to perform an act in
violation of the law; (2) there is intention to perform the physical
act; (3) there is a performance of the intended physical act; and
(4) the consequence resulting from the intended act does not
amount to a crime. 14
The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where
he thought his victim would be, although in reality, the victim was not
present in said place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People
vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot
where he thought the police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit him and to achieve
his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled
principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and
these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his
intent to kill the victim because the latter did not pass by the place where he
was lying-in wait, the court held him liable for attempted murder. The court
explained that:
It was no fault of Strokes that the crime was not committed. . . .
It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further, that he
was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a case
where it becomes impossible for the crime to be committed,
either by outside interference or because of miscalculation as to
a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the
impossibility grows out of extraneous acts not within the control
of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court
quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment
by reason of his criminal intent, no one can seriously doubt that
the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the

pocket, etc., what was supposed to exist was really present or

not. The community suffers from the mere alarm of crime. Again:
Where the thing intended (attempted) as a crime and what is
done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in
reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of
victim's room thinking that the latter was inside. However, at that moment,
the victim was in another part of the house. The court convicted the accused
of attempted murder.
The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot rely upon these decisions to resolve
the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided
for impossible crimes and made the punishable. Whereas, in the United
States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility of committing
the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into
two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the
Court held that:
. . . factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is
no defense that in reality the crime was impossible of
commission.
Legal impossibility, on the other hand, is a defense which can be invoked to
avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was
indicated for attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send a letter
without the latter's knowledge and consent and the act was performed.

However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the contention of the
state that "elimination of impossibility as a defense to a charge of criminal
attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing
of this contention, the Court held that the federal statutes did not contain
such provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law. Further, it
said:
Congress has not yet enacted a law that provides that intent plus
act plus conduct constitutes the offense of attempt irrespective
of legal impossibility until such time as such legislative changes
in the law take place, this court will not fashion a new nonstatutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is
factually impossible or accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the
act is penalized, not as an impossible crime, but as an attempt to commit a
crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime neither for
an attempt not for an impossible crime. The only reason for this is that in
American law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not
merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code
makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under
Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make
the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted

Murder because the absence of Palangpangan was a supervening cause
independent of the actor's will, will render useless the provision in Article 4,
which makes a person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of
the actor's will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the
decision of respondent Court of Appeals holding Petitioner guilty of
Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4, paragraph 2, and 59
of the Revised Penal Code, respectively. Having in mind the social danger
and degree of criminality shown by Petitioner, this Court sentences him to
suffer the penalty of six (6) months ofarresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
G.R. No. 95322 March 1, 1993
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre L. Tagarao for appellant Pablito Domasian.
Lino M. Patajo for appellant Dr. Samson Tan.
CRUZ, J.:
The boy was detained for only about three hours and was released even
before his parents received the ransom note. But it spawned a protracted
trial spanning all of 8 years and led to the conviction of the two accused. 1

The victim was Enrico Paulo Agra, who was 8 years old at the time of the
incident in question. The accused were Pablito Domasian and Samson Tan,
the latter then a resident physician in the hospital owned by Enrico's parents.
They were represented by separate lawyers at the trial and filed separate
briefs in this appeal.
The evidence of the prosecution showed that in the morning of March 11,
1982, while Enrico was walking with a classmate along Roque street in the
poblacion of Lopez, Quezon, he was approached by a man who requested his
assistance in getting his father's signature on a medical certificate. Enrico
agreed to help and rode with the man in a tricycle to Calantipayan, where he
waited outside while the man went into a building to get the certificate.
Enrico became apprehensive and started to cry when, instead of taking him
to the hospital, the man flagged a minibus and forced him inside, holding
him firmly all the while. The man told him to stop crying or he would not be
returned to his father. When they alighted at Gumaca, they took another
tricycle, this time bound for the municipal building from where they walked
to the market. Here the man talked to a jeepney driver and handed him an
envelope addressed to Dr. Enrique Agra, the boy's father. The two then
boarded a tricycle headed for San Vicente, with the man still firmly holding
Enrico, who continued crying. This aroused the suspicion of the driver,
Alexander Grate, who asked the man about his relationship with the boy. The
man said he and the boy were brothers, making Grate doubly suspicious
because of the physical differences between the two and the wide gap
between their ages. Grate immediately reported the matter to two
barangay tanods when his passengers alighted from the tricycle. Grate and
the tanods went after the two and saw the man dragging the boy. Noticing
that they were being pursued, the man told Enrico to run fast as their
pursuers might behead them. Somehow, the man managed to escape,
leaving Enrico behind. Enrico was on his way home in a passenger jeep when
he met his parents, who were riding in the hospital ambulance and already
looking for him. 2
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra
received an envelope containing a ransom note. The note demanded P1
million for the release of Enrico and warned that otherwise the boy would be
killed. Agra thought the handwriting in the note was familiar. After comparing
it with some records in the hospital, he gave the note to the police, which
referred it to the NBI for examination. 3

The test showed that it bad been written by Dr. Samson Tan. 4 On the other
hand, Enrico was shown a folder of pictures in the police station so be could
identify the man who had detained him, and he pointed to the picture of
Pablito Domasian. 5 Domasian and Tan were subsequently charged with the
crime of kidnapping with serious illegal detention in the Regional Trial Court
of Quezon. 6
The defense of both accused was denial and alibi. Domasian claimed that at
the time of the incident he was watching a mahjong game in a friend's house
and later went to an optical clinic with his wife for the refraction of his
eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8
After trial Judge Enrico A. Lanzanas found both accused guilty as charged and
sentenced them to suffer the penalty of reclusion perpetua and all accessory
penalties. They were also required to pay P200,000.00 to Dr. and Mrs.
Enrique Agra as actual and moral damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their denial of any
participation in the incident in question. They belittle the credibility of the
prosecution witnesses and submit that their own witnesses are more
believable. Tan specifically challenges the findings of the NBI and offers anew
the opposite findings of the PC/INP showing that he was not the writer of the
ransom note. He maintains that in any case, the crime alleged is not
kidnapping with serious illegal detention as no detention in an enclosure was
involved. If at all, it should be denominated and punished only as grave
coercion. Finally, both Domasian and Tan insist that there is no basis for the
finding of a conspiracy between them to make them criminally liable in equal
degree.
First, on the credibility of the witnesses. This is assessed in the first instance
by the trial judge, whose finding in this regard is received with much respect
by the appellate court because of his opportunity to directly observe the
demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of the
victim himself, who positively identified Domasian as the person who
detained him for three hours. The trial court observed that the boy was
"straight-forward, natural and consistent" in the narration of his detention.
The boy's naivete made him even more believable. Tirso Ferreras, Enrico's
classmate and also his age, pointed to Domasian with equal certainty, as the
man who approached Enrico when they were walking together that morning

of March 11, 1982. Grate, the tricycle driver who suspected Enrico's
companion and later chased him, was also positive in identifying Domasian.
All these three witnesses did not know Domasian until that same morning
and could have no ill motive in testifying against him. By contrast, Eugenia
Agtay, who testified for the defense, can hardly be considered a
disinterested witness because she admitted she had known Domasian for 3
years.
The defense asks why Domasian openly took Enrico to several public places
if the intention was to kidnap and detain him. That is for Domasian himself to
answer. We do no have to probe the reasons for the irrational conduct of an
accused. The more important question, as we see it, is why Domasian
detained Enrico in the first place after pretending he needed the boy's help.
That is also for Domasian to explain. As for Enrico's alleged willingness to go
with Domasian, this was manifested only at the beginning, when he believed
the man sincerely needed his assistance. But he was soon disabused. His
initial confidence gave way to fear when Domasian, after taking him so far
away from the hospital where he was going, restrained and threatened him if
he did not stop crying.
Domasian's alibi cannot stand against his positive identification by Enrico,
Grate and Ferreras, let alone the contradictions made by his corroborating
witness, Dr. Irene Argosino, regarding the time he was in the optical clinic
and the manner of his payment for the refraction. 9 Tan's alibi is not
convincing either. The circumstance that he may have been in Manila at the
time of the incident does not prove that he could not have written the
ransom note except at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court provides as
follows:
The handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person and has seen the
person write, or has seen writing purporting to be his upon which
the witness has acted or been charged and has thus acquired
knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison,
made by the witness or the court with writings admitted or
treated as genuine by the party against whom the evidence is
offered or proved to be genuine to the satisfaction of the judge.

Two expert witnesses were presented in the case at bar, one from the
NBI, 10 who opined that the ransom note and the standard documents were
written by one and the same person, and another from the PC/INP 11 who
expressed a contrary conclusion. The trial court chose to believe the NBI
expert because his examination and analysis "was more comprehensive than
the one conducted by the PC/INP handwriting expert, who virtually limited his
reliance on the perceived similarities and dissimilarities in the pattern and
style of the writing, thereby disregarding the basic principle in handwriting
identification that it is not the form alone nor anyone feature but rather a
combination of all the qualities that identify."
We have held that the value of the opinion of a handwriting expert depends
not upon his mere statements of whether a writing is genuine or false, but
upon the assistance he may afford in pointing out distinguishing marks,
characteristics and discrepancies in and between genuine and false
specimens of writing which would ordinarily escape notice or detection from
an unpracticed observer. 12 The test of genuineness ought to be the
resemblance, not the formation of letters in some other specimens but to the
general character of writing, which is impressed on it as the involuntary and
unconscious
result
of constitution, habit or other permanent course, and is, therefore itself
permanent. 13
Presented with the conflicting opinions of the witnesses in the case at bar,
the Court feels that the scales should tilt in favor of the prosecution.
Significantly, the NBI opinion was bolstered by the testimony of Agra, who
believed that the ransom note was written by Tan, with whose handwriting
he was familiar because they had been working in the hospital for four years
and he had seen that handwriting every day in Tan's prescriptions and daily
reports.14
Cesar v. Sandiganbayan 15 is not applicable because that case involved a
forgery or the deliberate imitation of another person's signature. In the case
before us, there was in fact an effort to disguise the ransom note writer's
penmanship to prevent his discovery.
As for the nature of the crime committed, Article 267 of the Revised Penal
Code provides as follows:
Art. 267. Kidnapping and serious illegal detention. Any private
individual who shall kidnap or detain another, or in any 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 five
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; of if threats to kill him shall
have been made.
4. If the person kidnapped or detained shall be a minor, 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.
Contrary to Tan's submission, this crime may consist not only in placing a
person in an enclosure but also in detaining him or depriving him in any
manner of his liberty. 16 In the case at bar, it is noted that although the victim
was not confined in an enclosure, he was deprived of his liberty when
Domasian restrained him from going home and dragged him first into the
minibus that took them to the municipal building in Gumaca, thence to the
market and then into the tricycle bound for San Vicente. The detention was
committed by Domasian, who was a private individual, and Enrico was a
minor at that time. The crime clearly comes under Par. 4 of the above-quoted
article.
Tan claims that the lower court erred in not finding that the sending of the
ransom note was an impossible crime which he says is not punishable. His
reason is that the second paragraph of Article 4 of the Revised Penal Code
provides that criminal liability shall be incurred "by any person performing an
act which would be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means." As the crime alleged is not
against persons or property but against liberty, he argues that it is not
covered by the said provision.

Tan conveniently forgets the first paragraphs of the same article, which
clearly applies to him, thus:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping with
serious illegal detention had already been committed. The act cannot be
considered an impossible crime because there was no inherent improbability
of its accomplishment or the employment of inadequate or ineffective
means. The delivery of the ransom note after the rescue of the victim did not
extinguish the offense, which had already been consummated when
Domasian deprived Enrico of his liberty. The sending of the ransom note
would have had the effect only of increasing the penalty to death under the
last paragraph of Article 267 although this too would not have been possible
under the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more
persons come to an agreement concerning the commission of a felony and
decide to commit it, whether they act through physical volition of one or all,
proceeding severally or collectively. 17
It is settled that conspiracy can be inferred from and proven by the acts of
the accused themselves when said acts point to a joint purpose and design,
concerted action and community of interests. 18 In the instant case, the trial
court correctly held that conspiracy was proved by the act of Domasian in
detaining Enrico; the writing of the ransom note by Tan; and its delivery by
Domasian to Agra. These acts were complementary to each other and
geared toward the attainment of the common ultimate objective, viz., to
extort the ransom of P1 million in exchange for Enrico's life.
The motive for the offense is not difficult to discover. According to Agra, Tan
approached him six days before the incident happened and requested a loan
of at least P15,000.00. Agra said he had no funds at that moment and Tan
did not believe him, angrily saying that Agra could even raise a million pesos
if he really wanted to help. 19The refusal obviously triggered the plan to
kidnap Enrico and demand P1 million for his release.

The constitutional issues raised by Domasian do not affect the decision in

this case. His claim that he was arrested without warrant and then tortured
and held incommunicado to extort a confession from him does not vitiate his
conviction. He never gave any confession. As for the allegation that the
seizure of the documents used for comparison with the ransom note was
made without a search warrant, it suffices to say that such documents were
taken by Agra himself and not by the NBI agents or other police authorities.
We held in the case of People vs. Andre Marti, 20 that the Bill of Rights cannot
be invoked against acts of private individuals, being directed only against the
government and its law-enforcement agencies and limitation on official
action.
We are satisfied that Tan and Domasian, in conspiracy with each other,
committed the crime of kidnapping as defined and penalized under Article
267 of the Revised Penal Code and so deserve the penalty imposed upon
them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against the
accused-appellants.
Let a copy of this decision be sent to the Commission on Human Rights for
investigation of the alleged violation of the constitutional rights of Pablito
Domasian.
SO ORDERED.
GEMMA T. JACINTO,

G.R. No. 162540

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus -

CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and

PERALTA, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.
July 13, 2009
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T.

Jacinto seeking the reversal of the Decision [1] of the Court of Appeals (CA) in CA-G.R.
CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the
crime of Qualified Theft, and its Resolution [2] dated March 5, 2004 denying
petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y
Rivera and Jacqueline Capitle, was charged before the Regional Trial Court (RTC)
ofCaloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed
as follows:

That on or about and sometime in the month of July 1997, in

Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and
mutually helping one another, being then all employees of MEGA FOAM

INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO,

and as such had free access inside the aforesaid establishment, with
grave abuse of trust and confidence reposed upon them with intent to
gain and without the knowledge and consent of the owner thereof, did
then and there willfully, unlawfully and feloniously take, steal and
deposited in their own account, Banco De Oro Check No. 0132649
dated July 14, 1997 in the sum of P10,000.00, representing payment
made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the
damage and prejudice of the latter in the aforesaid stated amount
of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone
call sometime in the middle of July from one of their customers, Jennifer
Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela Branch, who was
looking for Generoso Capitle. The reason for the call was to inform Capitle that the
subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of

Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a
phone; but they could be reached through Valencia, a neighbor and former coemployee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with
cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally
into
four: for
herself,
Ricablanca,
petitioner
Jacinto
and
Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the
matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that
the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June
1997 as payment for her purchases from Mega Foam. [4] Baby Aquino further
testified that, sometime in July 1997, petitioner also called her on the phone to tell
her that the BDO check bounced. [5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject
BDO check in his bank account, but explained that the check came into his
possession when some unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with his cash in exchange
for the check without even bothering to inquire into the identity of the woman or
her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces
of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked
to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to

Ricablanca. They originally intended to proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not push through. However, they agreed
to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to
the house of Anita Valencia; Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby
Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises
of Baby Aquino, pretending that she was getting cash from Baby Aquino. However,
the cash she actually brought out from the premises was the P10,000.00 marked
money previously given to her by Dyhengco. Ricablanca divided the money and
upon
returning
to
the
jeep,
gave P5,000.00
each
to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their
hands. This showed that petitioner and Valencia handled the marked money. The
NBI filed a criminal case for qualified theft against the two and one Jane Doe who
was later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned
on June 30, 1997, but claimed that she had stopped collecting payments from Baby
Aquino for quite some time before her resignation from the company. She further
testified that, on the day of the arrest, Ricablanca came to her mothers house,
where she was staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at
the Chinese General Hospital, Ricablanca decided to hitch a ride with the former
and her husband in their jeep going to Baby Aquino's place in Caloocan City. She
allegedly had no idea why Ricablanca asked them to wait in their jeep, which they
parked outside the house of Baby Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers.According to her, on the morning of August 21, 1997, Ricablanca called
her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to
the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked, What is
this? Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the
RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds

accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle GUILTY beyond
reasonable doubt of the crime of QUALIFIED THEFT and each of them
is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS,as minimum, to SIX (6)
YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as
maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING,

court is MODIFIED, in that:

the

decision

of

the

trial

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia
reduced to 4 months arresto mayor medium.

is

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed

only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution
datedMarch 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are
as follows:

1.

Whether or not petitioner can be convicted of a crime not

charged in the information;

2.

Whether or not a worthless check can be the object of theft;

and

3. Whether or not the prosecution has proved petitioner's guilt

beyond
reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit
the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check belonged to Baby Aquino,
as it was her payment for purchases she made; (3) the taking was done with intent
to gain this is presumed from the act of unlawful taking and further shown by the
fact that the check was deposited to the bank account of petitioner's brother-in-law;
(4) it was done without the owners consent petitioner hid the fact that she had
received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or
intimidation against persons, nor of force upon things the check was voluntarily
handed to petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as
the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on
the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime of qualified theft was
actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals [9] is highly instructive and applicable to the present
case. In Intod, the accused, intending to kill a person, peppered the latters bedroom
with bullets, but since the intended victim was not home at the time, no harm came

to him. The trial court and the CA held Intod guilty of attempted murder. But upon
review by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the
crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:

xxxx

2.

By any person performing an act which

would be an offense against persons or property,
were it not for the inherent impossibility of its
accomplishment or
on
account
of
the
employment of inadequate to ineffectual means.
(emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless the
crime was not produced by reason of the fact that the act intended was
by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the
result desired by him, the court, having in mind the social danger and
the degree of criminality shown by the offender, shall impose upon him
the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent;
and (3) that its accomplishment was inherently impossible, or the means employed
was either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce
an offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2) the
means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the

offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender
must
be
by
its
nature
one
impossible
of
accomplishment. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to
qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime.
xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime ofqualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that
the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the

check being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually dishonored, and Mega
Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People[12] that under the definition of theft
in Article 308 of the Revised Penal Code, there is only one operative act of execution
by the actor involved in theft the taking of personal property of
another. Elucidating further, the Court held, thus:

x x x 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 latters consent.

xxxx

x x x when is the crime of theft produced? There would be all but

certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to
gain. Viewed from that perspective, it is immaterial to the product of
the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued
from such acts of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal

property, is the element which produces the felony in its consummated
stage. x x x [13]

From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check
was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the
check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of the
theft. At most, the fact that petitioner was caught receiving the marked money was
merely corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent
scheme. Unfortunately, since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce judgment on the
accused; otherwise, it would violate the due process clause of the Constitution. If at
all, that fraudulent scheme could have been another possible source of criminal
liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,
areMODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.

SO ORDERED.
PEOPLE
OF
THE
PHILIPPINES, appellee,
PANCHO, appellant.

vs.

MANOLITO

DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision [1] dated June 19, 1998 of the
Regional Trial Court, Branch 15, Malolos, Bulacan, finding appellant Manolito
Pancho guilty beyond reasonable doubt of rape in Criminal Case No. 837-M96 and attempted rape in Criminal Case No. 838-M-96. In Criminal Case No.
837-M-96, the trial court sentenced him to suffer reclusion perpetua,while in
Criminal Case No. 838-M-96, the penalty of 10 years and 1 day, as minimum,
to 12 years, as maximum of prision mayor, was imposed upon him.
The Informations in both Criminal Case Nos. 837-M-96 and 838-M-96
read:
For Criminal Case No. 837-M-96 (For Rape):
That in or about the month of August, 1994, in the municipality of Malolos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously, by means of force, threats and intimidation and with lewd
designs, have carnal knowledge of said Michelle L. dela Torre, 11 years of
age, against her will and without her consent.
Contrary to law.
For Criminal Case No. 838-M-96 (For Attempted Rape):
That in or about the month of December, 1995, in the municipality of
Malolos, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and feloniously, by means of force, threats and intimidation and
with lewd designs, have carnal knowledge of said Michelle L. dela Torre, 11
years of age, against her will and without her consent.
Contrary to law.

Upon arraignment, appellant, assisted by counsel, pleaded not guilty to

the crimes charged.
Thereafter, trial ensued. The evidence for the prosecution shows that
complainant Michelle dela Torre was born on April 2, 1984[2] to spouses
Exequiela Lacanilao and Eduardo dela Torre. After Michelles father passed
away, her mother contracted a second marriage with appellant. Michelle and
her two (2) brothers live with the couple at Look First, Malolos, Bulacan.
On August 1, 1994, at around 6:00 oclock in the morning, Michelle, who
was then only ten years old, went home after spending the night at her aunts
house. While she was about to undress, appellant suddenly dragged her and
forced her to lie down on the floor. Although frightened, she struggled by
kicking and boxing him. However, he forcibly removed her clothes and
underwear. Then he took off his clothing. Appellant started kissing and
holding her breast and eventually had carnal knowledge of her. She felt pain
when he inserted his organ into her vagina which bled. She tried to resist but
he held her both arms. He was on top of her making push and pull
movements for four (4) minutes. Then he dressed up, threatening to kill her
should she complain or tell anyone about the incident.
Sometime in December, 1995 at the familys new residence at Bayugo,
Meycauayan, Bulacan, appellant arrived from work. When Michelle opened
the door and saw him, she got scared. While he was approaching her, she
managed to hit him. Then she attempted to jump out of the window, but he
dragged her by her feet. At that instance, her uncle (Tito Onio) suddenly
arrived.[3] Immediately, appellant stopped, thus thwarting his bestial desire.
After sometime, Michelle mustered enough courage to report the
incidents to her mother, but the latter casually ignored her. So, she turned to
her grandmother Natividad Lacanilao, who brought her, sometime in
February, 1996, to the National Bureau of Investigation (NBI) for examination
by a medico-legal officer.[4] Thereafter, they proceeded to the Malolos Police
Station where she executed a sworn statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that she
conducted a medico-genital examination of Michelle dela Torre. Her findings,
[6]
which she confirmed on the witness stand, are as follows:
GENERAL PHYSICAL EXAMINATION:

Height: 132.0 cms

Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent, cooperative,
ambulatory subject.
Breasts,
developing,
conical,
firm. Areolae,
brown,
diameter. Nipples, brown, protruding, 0.5 cm in diameter.

2.5

cms

in

No sign of extragenital physical injury noted.

GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated. Fourchette,
tense. Vestibular mucosa, pinkish. Hymen, moderately tall, moderately thick,
intact. Hymenal orifice, annular, admits a tube 2.0 cms in diameter with
moderate resistance. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1. No evident sign of extragenital physical injury noted on the body of the
subject at the time of examination.
2. Hymen, intact and its orifice small (2.0 cms in diameter) as to preclude
complete penetration by an average sized adult Filipino male organ in full
erection without producing any genital injury.
For his part, appellant strongly denied the charges, contending that it
was impossible for him to commit the crimes considering that during the
incidents, his wife and her two sons were also inside the house. [7] Moreover,
the charge of rape is totally belied by the finding of the NBI Medico-Legal
Officer that Michelles hymen has remained intact with no sign of extragenital or genital injuries.
After trial, the lower court rendered a Joint Decision dated June 19, 1998,
the dispositive portion of which reads:
In view of all the foregoing and by proof beyond reasonable doubt, the Court
hereby renders judgment as follows:

1. With respect to Criminal Case No. 837-M-96, the Court finds the accused
guilty beyond reasonable doubt of the crime charged and hereby sentences
accused MANOLITO PANCHO to suffer the penalty of RECLUSION PERPETUA.
2. With respect to Criminal Case No. 838-M-96, the Court finds the accused
guilty beyond reasonable doubt of the crime of Attempted Rape, and hereby
sentences accused MANOLITO PANCHO to suffer an imprisonment of TEN
(10) YEARS and ONE (1) DAY to TWELVE (12) YEARS.
3. To indemnify the victim Michelle dela Torre the amount of P20,000.00 each
case.
The period of the accuseds detention is credited in his favor.
SO ORDERED.
In this appeal, appellant ascribes to the trial court the following errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES OF RAPE AND ATTEMPTED RAPE,
DESPITE INSUFFICIENCY OF EVIDENCE.
II
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP BY
ACCUSED-APPELLANT.
As alleged in the Informations, the crimes charged were committed
sometime in August, 1994 and December, 1995. Thus, the governing law is
Article 335[8] of the Revised Penal Code which, as amended by Republic Act
No. 7659 (The Death Penalty Law),[9] provides:
ART. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

xxx
The death penalty shall also be imposed if the crime or rape is committed
with any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree or the common-law spouse of the parent
of the victim.
2. xxx.
A. G.R. No. 136592 for rape:
Rape under the above provisions is either simple or qualified. It is
qualified when the age of the victim (below 18) and her relationship with the
appellant are both alleged in the Information and proved. [10] In this case, the
prosecution failed to allege in the Information the qualifying circumstance
that appellant is the victims step-parent. Thus, he may only be convicted of
simple rape.
Simple rape is committed under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious;
and
3. When the woman is under twelve years of age (statutory rape) or is
demented.
In the Information, appellant is being charged of statutory rape
considering that Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal knowledge of a
woman below twelve (12) years old. [11] In statutory rape, force, intimidation
or physical evidence of injury is immaterial. [12] Where the girl is below 12
years of age, violence or intimidation is not required, and the only subject of
inquiry is whether carnal knowledge took place.[13]

As shown by her Certificate of Live Birth,[14] Michelle was born on April 2,

1984. Thus, on August 1, 1994 when the incident took place, she was only 10
years and 3 months old.
Michelle identified appellant in open court as the culprit who raped
her. She testified as follows:
FISCAL:
Q: Ms. Witness, you claim in your testimony that you were raped by
your step father Manolito Pancho last August 1, 1994, will you
please tell this Honorable Court how Manolito Pancho raped you?
A: About 6:00 oclock in the morning I went home, sir.
Q: And where is your home located?
A: I went home at Look First, Malolos, Bulacan.
Q: And what happened when you went home at Look, Malolos,
Bulacan?
A: Manolito Pancho dragged me and forced me to lie on the floor.
Q: And what happened when after Manolito Pancho lay you on the
floor?
A: He took off all my clothes.
Q: And what clothes you are wearing at that time, Ms. witness?
A: I was wearing a t-shirt and short, sir.
Q: What else Manolito Pancho removed?
A: My clothes, short and panty, sir.
Q: And what was your appearance after these clothes were removed
by Manolito Pancho?
A: I was naked, sir.

Q: How about Manolito Pancho, what did he do after he removed your

dress?
A: He also took-off his clothes, sir.
Q: What clothes did he remove?
A: His t-shirt, short and brief, sir.
Q: After Manolito removed all these: his short, brief and t-shirt, what
did he do?
A: He placed himself on top of me.
Q: And what happened after he placed himself on top of you?
A: He inserted his penis on my vagina.
Q: Were you able to see his organ when he inserted it on your vagina?
A: Yes, sir.
Q: What happened when he inserted his organ on your vagina?
A: He was kissing me and touching my body, sir.
Q: What particular parts of your body did Manolito Pancho kiss and
touch, Ms. witness?
A: My both breasts, sir.
Q: And what did you feel when Manolito Pancho inserted his organ on
your vagina?
A: It hurts, sir.
Q: What motion did he do if you can still remember when Manolito
Pancho was on top of you?
A: He was kissing me, touching me and then I tried to struggle against
him but he was holding my both hands so that I could not
struggle.

Q: And what happened to your vagina after he inserted his penis?

A: It bled, sir.
Q: How long did Manolito Pancho stay on top of you?
A: Four (4) minutes, sir.
Q: And after four (4) minutes, what did Manolito Pancho do?
A: I already dressed up because he already dressed-up, sir.
Q: And what did Manolito Pancho tell you, if any?
A: He said, do not complain because if you do so, I am going to kill
you.
Q: How are you related with Manolito Pancho, Ms. witness?
A: My step father, sir.
Q: At the time you claimed that you were raped by Manolito Pancho,
will you please tell this Honorable Court, how young were you
then?
A: Ten (10) years old, sir.
Q: Do you have evidence to show Ms. witness that you are ten (10)
years old at that time?
A: My birth certificate, sir.
Q: Do you have with you your birth certificate?
A: Yes, sir. (The grandmother is producing the Live Birth Certificate of
the complainant Michelle dela Torre.)
Q: Will you please tell this Honorable Court what is your date of birth,
Ms. witness?
A: April 2, 1984.

Q: And you claimed that you were 10 years old when you were raped
by Manolito Pancho?
A: Yes, sir.
xxx.[15]
Michelles testimony is straightforward, unflawed by significant
inconsistency, and unshaken by rigid cross-examination. It deserves full faith
and credence. In rape cases, the accused may be convicted solely on the
testimony of the rape victim if her testimony is credible, natural, and
convincing.[16]
When a woman says she was raped, she says in effect all that is
necessary to show that rape had been committed, and if her testimony
meets the test of credibility, the accused may be convicted on the basis
thereof.[17] It bears stressing that Michelle, a girl of tender years, innocent
and guileless, cannot be expected to brazenly impute a crime so serious as
rape to her step-father if it were not true.
Appellant vigorously denied the charge, contending that per the Medical
Report of Dr. Ida Daniel, Michelles hymen has remained intact.[18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He disregards Dr.
Daniels testimony that there are two types of hymen: (1) one that remains
intact even though there is penetration; (2) the other is lacerated after
penetration.[20] We have ruled that in rape cases the absence of fresh
lacerations does not preclude the finding of rape, [21] especially when the
victim is of tender age.[22] Moreover, laceration of the hymen is not an
element of the crime of rape. [23] Hymenal rupture or any indication of vaginal
laceration or genital injury is not necessary for the consummation of rape.
[24]
Its absence does not negate a finding of forced sexual coitus. [25] For the
rule is well settled that rape is consummated by the slightest penile
penetration of the labia majora or pudendum of the female organ.[26] Indeed,
the evidentiary weight of the medical examination of the victim, as well as
the medical certificate, is merely corroborative in character and is not an
indispensable element for conviction for rape.[27]

Appellants denial is an inherently weak defense. It has always been

viewed upon with disfavor by the courts due to the ease with which it can be
concocted.[28] Inherently weak, denial as a defense crumbles in the light of
positive identification of the accused, as in this case. The defense of denial
assumes significance only when the prosecutions evidence is such that it
does not prove guilt beyond reasonable doubt. [29] Verily, mere denial,
unsubstantiated by clear and convincing evidence, is negative self-serving
evidence which cannot be given greater evidentiary weight than the
testimony of the complaining witness who testified on affirmative matters.[30]
B. G.R. No. 136593 for attempted rape:
Appellant also contends that his conviction of attempted rape in Criminal
Case No. 838-M-96 is not supported by evidence.
Michelle testified that when appellant was coming near me, I hit him and
I saw that our door was opened. I tried to jump and that was the time he
dragged and he held my feet. [31]Appellant and Michelle were in this snap
situation when his Tito Onio arrived. [32] Her testimony regarding this incident
is quoted as follows:
FISCAL:
xxx
Q: And what happened in that place at Bayugo, Meycauayan,
Bulacan?
A: When the door opened I thought it was my mother and when I saw
him I was scared, sir.
Q: And what happened when you saw Manolito Pancho?
A: I closed the door, sir.
Q: Thereafter, what happened?
A: When he was coming near me, I hit him and I saw that our door
was opened. I tried to jump and that was the time he dragged and
he held my feet.

Q: And what happened after Manolito Pancho held your feet?

A: When he was holding my feet I was not able to jump from the
window and thats the time the door opened and then I saw my
uncle that is why the rape was not committed.
xxx.[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly by
overt acts, but does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance.[34]
In this second case, the prosecution failed to prove that appellant started
to rape the victim and had commenced the performance of acts of carnal
knowledge. He did not force her to lie down or remove her garment. In short,
there was no showing that he did commence at all the performance of any
act indicative of an intent or attempt to rape the victim. What he did was to
drag her and hold her feet. At this juncture, we can not safely conclude that
he was attempting to rape her.
In People vs. Campuhan,[35] we held that the thin line that separates
attempted rape from consummated rape is the entrance of the male organ
into the labial threshold of the female genitalia. In that case, the accused
was caught by the mother of the victim kneeling on top of her. The victim
testified that the accuseds organ merely touched but did not penetrate her
vagina. We held that he could not be convicted of statutory rape but only
attempted rape.
In the instant case, appellant was merely holding complainants feet when
her Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.
Anent the award of damages in G.R. No. 136592, we observed that the
trial court only awarded the victim civil indemnity in the amount
of P20,000.00. This must be corrected. We have consistently ruled that upon
a finding of the fact of rape, the award of civil indemnity is mandatory. If the
death
penalty
is
imposed,
the
indemnity ex
delicto should

be P75,000.00. Where, as here, the death penalty is not decreed, the victim
should be entitled to P50,000.00 only.[36]
In line with current jurisprudence, we also award the victim moral
damages in the amount of P50,000.00 without need of pleading or proof of
the basis thereof.[37] The anguish and pain she has endured are evident.
WHEREFORE, the Decision dated June 19, 1998 of the Regional Trial
Court, Branch 15, Malolos, Bulacan, in Criminal Case No. 837-M-96,
convicting appellant Manolito Pancho of rape and sentencing him to suffer
the penalty of reclusion perpetua is AFFIRMED, with the MODIFICATION that
he is ordered to pay the victim, Michelle dela Torre, P50,000.00 as civil
indemnity, and P50,000.00 as moral damages.
In Criminal Case No. 838-M-96, the trial courts judgment convicting the
appellant of attempted rape is REVERSED AND SET ASIDE and a new one is
entered ACQUITTING him of the crime charged.
Costs de oficio.
SO ORDERED.
G.R. No. L-43530

August 3, 1935

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
AURELIO LAMAHANG, defendant-appellant.

ISLANDS, plaintiff-appellee,

Honesto
K.
Bausa
Office of the Solicitor-General Hilado for appellee.

for

appellant.

RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of attempted
robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the
law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was

patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the
standpoint of the Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence,
passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is
not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus,
in case of robbery, in order that the simple act of entering by means of force
or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to
take possession, for the purpose of gain, of some personal property
belonging to another. In the instant case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred. From the
fact established and stated in the decision, that the accused on the day in

question was making an opening by means of an iron bar on the wall of Tan
Yu's store, it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against the will of its
owner. That his final objective, once he succeeded in entering the store, was
to rob, to cause physical injury to the inmates, or to commit any other
offense, there is nothing in the record to justify a concrete
finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very
nature, by the facts to which they are related, by the circumstances of
the persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are aimed at
the consummation of a crime. Acts susceptible of double interpretation
, that is, in favor as well as against the culprit, and which show an
innocent as well as a punishable act, must not and can not furnish
grounds by themselves for attempted nor frustrated crimes. The
relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the
intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instances of injustice, that the
mind be able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must have been the
intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed must be
such that, without the intent to commit an offense, they would be
meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts
leading to the commission of the offense, are not punished except when they
are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of March
21, 1892 that in order to declare that such and such overt acts
constitute an attempted offense it is necessary that their objective be

known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for the
designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
store by breaking a board and unfastening another for the purpose of
entering said store ... and that the accused did not succeed in entering the
store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93;
U.S.vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.)
Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, inasmuch as the
record shows that several final judgments for robbery and theft have been
rendered against him and in his favor, the mitigating circumstance of lack
of instruction. The breaking of the wall should not be taken into consideration
as an aggravating circumstance inasmuch as this is the very fact which in
this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating
circumstances and one mitigating circumstance the penalty must be
imposed in its maximum period. Pursuant to article 29 of the same Code, the
accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby
held guilty of attempted trespass to dwelling, committed by means of force,
with the aforesaid aggravating and mitigating circumstances and sentenced
to three months and one day of arresto mayor, with the accessory penalties
thereof and to pay the costs.
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
-

versus - GUTIERREZ,
CARPIO,

MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:

June 21, 2007

x----------------------------------------------------------------------------x

DECISION
TINGA, J.:

This case aims for prime space in the firmament of our criminal law
jurisprudence. 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. The proposition rests on a common theory
expounded in two well-known decisions[1] rendered decades ago by the Court
of Appeals, upholding the existence of frustrated theft of which the accused
in both cases were found guilty. However, the rationale behind the rulings
has never been affirmed by this Court.

As far as can be told, [2] the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and

in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally
and fully measure if or how frustrated theft is susceptible to commission
under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30
p.m., petitioner and Calderon were sighted outside the Super Sale Club, a
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, who was wearing
an identification card with the mark Receiving Dispatching Unit (RDU),
hauling a push cart with cases of detergent of the well-known Tide brand.
Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five
(5) minutes, emerged with more cartons of Tide Ultramaticand again
unloaded these boxes to the same area in the open parking space.[7]

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 ofTide 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.[9]

Petitioner and Calderon were first brought to the SM security office before
they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from the
police investigation records that apart from petitioner and Calderon, four (4)
other persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day
after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon
both claimed having been innocent bystanders within the vicinity of the
Super Sale Club on the afternoon of 19 May 1994 when they were haled by
Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he
was at the Super Sale Club to withdraw from his ATM account, accompanied
by his neighbor, Leoncio Rosulada.[11] As the queue for the 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 ofthe building to check what was

transpiring. As they were outside, they were suddenly grabbed by a security

guard, thus commencing their detention.[12] Meanwhile, petitioner testified
during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the
parking lot, walking beside the nearby BLISS complex and headed to ride a
tricycle going to Pag-asa, when they saw the security guard Lago fire a shot.
The gunshot caused him and the other people at the scene to start running,
at which point he was apprehended by Lago and brought to the security
office. Petitioner claimed he was detained at the security office until
around 9:00 p.m., at 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
prosecutors office where he was charged with theft.[14]During petitioners
cross-examination, he admitted that he had been employed as a bundler of
GMS Marketing, assigned at the supermarket though not at SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court

(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of
the crime of consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as minimum to seven (7)
years of prision mayor as maximum.[17] The RTC found credible the
testimonies of the prosecution witnesses and established the convictions on
the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal, [18] but only
petitioner filed a brief[19] with the Court of Appeals, causing the appellate
court to deem Calderons 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 rejected this
contention and affirmed petitioners conviction. [22] Hence the present Petition
for Review,[23] which expressly seeks that petitioners conviction be modified
to only of Frustrated Theft.[24]

Even in his appeal before the Court of Appeals, petitioner effectively

conceded both his felonious intent and his actual participation in the theft of
several cases of detergent with a total value of P12,090.00 of which he was
charged.[25] As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the
RTC and the Court of Appeals. The only question to consider is whether under
the given facts, the theft should be deemed as consummated or merely
frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner

cites[26] two decisions rendered many years ago by the Court of
Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the
interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate court did not expressly
consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,

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, Dio 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 Dio 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 Dio and Flores. The fact that lower courts
have not hesitated to lay down convictions for frustrated theft further
validates that Dio 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.

III.

To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative 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]

Article 6 defines those three stages, namely the consummated, frustrated

and attempted felonies. A 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 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.

Each felony under the Revised Penal Code has a subjective phase, or that
portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime.
[31]
After that point has been breached, the subjective phase ends and the
objective phase begins.[32] It has been held that if the offender never passes
the subjective phase of the offense, the crime is merely attempted. [33] On the
other hand, the subjective phase is completely passed in case of frustrated
crimes, for in such instances, [s]ubjectively the crime is complete.[34]

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

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
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was produced after all
the acts of execution had been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that generally furnishes
the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.

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 crime, and accordingly,
there can be no crime when the criminal mind is wanting. [35] Accepted in this
jurisdiction as material in crimes mala in se,[36] mens reahas been defined
before as a guilty mind, a guilty or wrongful purpose or criminal intent, [37] and
essential for criminal liability. [38] It follows that the statutory definition of
ourmala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that a criminal
law that contains no mens rearequirement infringes on constitutionally
protected rights.[39] The criminal statute must also provide 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]

It is from the actus reus and the mens rea, as they find expression in
the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was 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 such infirmity. From the statutory definition of any
felony, a decisive passage or term is embeddedwhich attests when the
felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase shall kill another,
thus making it clear that the felony is produced by the death of the victim,
and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:

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 force upon things, shall take
personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail
to deliver the same to the local authorities or to its
owner;
2. Any person who, after having maliciously damaged
the property of another, shall remove or make use of
the fruits or object of the damage caused by him;
and
3. Any person who shall enter an inclosed estate or a
field where 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 means by which theft may be committed. [41] In the
present discussion, we need to concern ourselves only with the general

definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft the taking of
personal property of another. It is also clear from the provision that in order
that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as

provided for in Article 308 of the Revised Penal Code, namely: (1) that there
be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon
things.[42]

In his commentaries, Judge Guevarra traces the history of the

definition of theft, which under 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 Paulus that a thief handles (touches, moves) the property of another.
[44]
However, with the Institutes of Justinian, the idea had taken hold that
more than mere physical handling, there must further be an intent of
acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This
requirement of animo lucrandi, or intent to gain, was maintained in both the
Spanish and Filipino penal laws, even as it has since been abandoned
in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento,

or unlawful taking, to characterize theft. Justice Regalado notes that the
concept of apoderamientoonce had a controversial interpretation and
application. Spanish law had already discounted the belief that mere physical

taking was constitutive of apoderamiento, 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
latters 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 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 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.)

The defendant penetrated into a room of a certain house

and by means of a key opened up a case, and from the case took
a small box, which was also opened with a key, from which in
turn he took a purse containing 461 reales and 20 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 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 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]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the
apprehension of the 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 had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such

intervals proved of no consequence in those cases, as it was ruled that the

thefts in each of those cases was consummated by the actual possession of
the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is People
v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the
victim 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 afterwards
caught by a policeman.[58] In rejecting the contention that only frustrated
theft was established, the Court simply said, without further comment or
elaboration:

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-book was
afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited

therein contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another school
of thought on when theft is consummated, as reflected in
the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years

after Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port area

of the South Harbor, to unload a truckload of materials to waiting U.S. Army

personnel. After he had finished unloading, accused drove away his truck
from the Port, but as he was approaching a 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 loaded the boxes with the agreement that they were to
meet him and retrieve the rifles after he had passed the checkpoint. The trial
court convicted accused of consummated theft, but the Court of Appeals
modified the conviction, holding instead that only frustrated theft had been
committed.

In doing so, the appellate court pointed out that the evident intent of
the accused was to let the boxes of rifles pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo inside
the depot, it would be allowed to pass through the check point without
further investigation or checking. [60] This point was deemed material and
indicative that the theft had not been fully produced, for the Court of Appeals
pronounced that the fact determinative of consummation is the ability of the
thief to dispose freely of the articles stolen, even if it were more or less
momentary.[61] Support for this proposition was drawn from a decision of the
Supreme Court of Spain dated 24 January 1888 (1888 decision), which was
quoted as follows:

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 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 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]

Integrating these considerations, the Court of Appeals then concluded:

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 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 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 frustrated theft.[63]

Dio 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 [herein] and in [Dio].[64] Such conclusion
is borne out by the facts in Flores. The accused therein, a checker employed
by the Luzon Stevedoring Company, issued a delivery receipt for one empty
sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver
proceeded to show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the van, and
discovered that the empty sea van had actually contained other
merchandise as well.[65] The accused was prosecuted for theft qualified by
abuse of confidence, and found himself convicted of the consummated
crime. Before the 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
accused that literally frustrated the theft. However, the Court of Appeals,
explicitly relying on Dio, did find that the accused was guilty only of
frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial

variance
between Dio and Flores then
before
it.
The
prosecution

in Flores had sought to distinguish that case from Dio, 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 compound,
the petitioner could not have disposed of the goods at once. At the same
time, the Court of Appeals conceded that [t]his is entirely different from the
case where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it is palpably
less restricted,[67] though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative

characteristic as to whether the crime of theft was produced is the ability of
the actor to freely dispose of the articles stolen, 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 preciso que so haga en circunstancias tales
que permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente. The
qualifier
siquiera
sea
mas
o
menos
momentaneamente proves another important consideration, as it implies
that if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Dio or Flores, as the stolen items in
both cases were retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items were filched.
However, as implied inFlores, 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 ofmuch less bulk and more
common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed

observation on the import of the Dio ruling:

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 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 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 been
based on Viadas opinion that in order the theft may be
consummated, es preciso que se haga en circumstancias x x x
[[70]][71]

In the same commentaries, Chief Justice Aquino, concluding

from Adiao and other cases, also states that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing
was frustrated.[72]

There are at least two other Court of Appeals rulings that are at
seeming
variance
with
the Dio and Flores rulings. People
v.
[73]
Batoon
involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto
a passenger truck where the arrest was made. While the trial court found the
accused guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that [t]he facts of
the cases ofU.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that
actual taking with intent to gain is enough to consummate the crime of theft.
[74]

In People v. Espiritu,[75] the accused had removed nine pieces of

hospital linen from a supply 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 similarity with those in Dio, the Court of Appeals held
that the accused were guilty of consummated 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 Dio and Espiritu, Reyes wryly
observes that [w]hen the meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the stage of execution of that
felony.[77] Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact,
given the disputed foundational 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.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.
[78]

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 Dio, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation
in Empelis.

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 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 of execution, the crime is attempted,
provided
that
the
nonperformance was by reason of some cause or accident otherthan
spontaneous desistance. Empelis concludes that the crime was

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 Espaa 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 nimo de lucrarse, y sin volencia o intimidacin en

las personas ni fuerza en las cosas, toman las cosas muebles
ajenas sin la voluntad de su dueo.

2.

Los que encontrndose una cosa perdida y sabiendo quin es

su dueo se la apropriaren co intencin de lucro.

3.

Los daadores que sustrajeren o utilizaren los frutos u

objeto del dao causado, salvo los casos previstos en los
artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0;
611; 613; Segundo prrafo 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 Espaol de 1995, the crime of theft is now simply
defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, la libre disposicion of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and
perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his

1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised
at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether frustrated or consummated
theft was committed [e]l que en el momento mismo de apoderarse de la
cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer
was as stated in Dio, and was indeed derived from the 1888 decision of the
Supreme Court of Spain, that decisions factual predicate occasioning the
statement was apparently very different from Dio, for it appears that the
1888 decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to
that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed
out the inconsistent application by the Spanish Supreme Court with respect
to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las

guardias cuando llevaban los sacos de harino del carro que los
conducia a otro que tenan preparado, 22 febrero 1913; cuando
el resultado no tuvo efecto por la intervencin de la policia
situada en el local donde se realiz la sustraccin que impidi
pudieran los reos disponer de lo sustrado, 30 de octubre 1950.
Hay "por lo menos" frustracin, si existe apoderamiento, pero el

culpale no llega a disponer de la cosa, 12 abril 1930; hay

frustracin "muy prxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustraccin, 28 febrero
1931. Algunos fallos han considerado la existencia de frustracin
cuando, 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 admissible,
stos, conforme a lo antes expuesto, son hurtos consumados.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is
actually possible:

La doctrina hoy generalmente sustentada considera que el

hurto se consuma cuando la cosa queda de hecho a la
disposicin del agente. Con este criterio coincide la doctrina
sentada
ltimamente
porla
jurisprudencia
espaola
que
generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo ms o menos
duradero bajo su poder. El hecho de que ste pueda aprovecharse
o no de lo hurtado es indiferente. El delito no pierde su carcter
de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustracin,
pues es muy dificil que el que hace cuanto es necesario
para
la
consumacin del hurto
no
lo
consume
efectivamente,
los
raros
casos
que
nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.[87] (Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who

was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Caln actually set forth his own thought that questioned
whether theft could truly be frustrated, since pues es muy dificil que el que
hace cuanto es necesario para la consumacin delhurto no lo consume
efectivamente. Otherwise put, it would be difficult to foresee how the

execution of all the acts necessary for the completion of the crime would not
produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no

weighted force in scholarly thought that obliges us to accept frustrated theft,
as proposed in Dio andFlores. A final ruling by the Court that there is no
crime of frustrated theft in this jurisdiction will not lead to scholastic pariah,
for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to

look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are, to
accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that
must compel us to adopt the Dio and Flores doctrines, the answer has to be
in the negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and
a function that allows breathing room for a variety of theorems in
competition until one is ultimately adopted by this Court.
V.

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 legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due respect
for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of language,

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

With
that
in
mind,
a
problem
clearly
emerges
with
the Dio/Flores dictum. The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative
element of theft or as the mens rea or actus reus of the felony. To restate
what this Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon
things.[90]

Such factor runs immaterial to the statutory definition of theft, which is

the taking, with intent to gain, of personal property of another without the
latters consent. While theDio/Flores dictum is considerate to the mindset of
the offender, the statutory definition of theft considers only the perspective
of intent to gain on the part of the offender, compounded by the deprivation
of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of

commission in the frustrated stage, the question is again, when is the crime
of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to
its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected
in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or
robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act
of making use of the thing was frustrated.[91]

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

the property stolen delves into the concept of taking itself, in that there
could be no true taking until the actor obtains such degree of control over
the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would
mean that not all the acts of execution have not been completed, the taking
not having been accomplished. Perhaps this point could serve as fertile
ground for future discussion, but our concern now is whether there is indeed
a crime of frustrated theft, and such consideration proves ultimately
immaterial to that question. Moreover, such issue will not apply to the facts
of this particular case. We are satisfied beyond reasonable doubt that the
taking by the 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
parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento,

is deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of 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 merely that it should be without his
consent, a distinction of no slight importance.[94]

Insofar as we consider the present question, unlawful taking is most

material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308
of the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen items,
the effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the
stolen property does not negate the fact that the owners have already been
deprived of their right to possession upon the completion of the taking.

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 the accused which does not
reflect any legislated intent,[95] since the Court would have carved a viable
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 disposal by the
thief. Would this depend on the psychological belief of the offender at the
time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual

circumstances such as the size 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 fleeing with the stolen property, the manner in which the
stolen item had been housed or stored; and quite frankly, a whole lot more.
Even the fungibility or edibility of the stolen item would come into account,
relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath
all the colorful detail, 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 acts of execution, including the taking, have been completed. If the
facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the attempted
stage, as not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the
theft.

Maybe the Dio/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. Dio itself did not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later Flores was ultimately content in relying
on Dio 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 of Empilis, 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 Dioand 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.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
G.R. No. L-26298

January 20, 1927

THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes
Caluag
Attorney-General Jaranilla for appellee.

for

appellant.

OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila
finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day
of reclusion temporal, with the accessory penalties provided by law and to
pay the costs.
The victim of the crime was a child of 3 years and 11 months old and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of the crime
found a slight inflammation of the exterior parts of the organ, indicating that
an effort had been made to enter the vagina, but in testifying before the
court he expressed doubts as to whether the entry had been effected. The
mother of the child testified that she found its genital organ covered with a
sticky substance, but that cannot be considered conclusive evidence of
penetration.
It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated
only as abusos deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not essential
to the commission of the crime; it is sufficient if there is a penetration of the
labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R.
A., 316) where the offended party was a child of the age of 3 years and 8
months the testimony of several physicians was to the effect that her labia of

the privates of a child of that age can be entered by a man's male organ to
the hymen and the defendant was found guilty of the consummated crime
rape.
There being no conclusive evidence of penetration of the genital organ of the
offended party, the defendant is entitled to the benefit of the doubt and can
only be found guilty of frustrated rape, but in view of the fact that he was
living in the house of the parents of the child as their guest, the aggravating
circumstance of abuse of confidence existed and the penalty must therefore
be imposed in its maximum degree.
The judgment appealed from is modified and the defendant-appellant is
hereby found guilty of the crime of frustrated rape and is sentenced to suffer
twelve years of prision mayor, with the accessory penalties prescribed by
law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
G.R. No. 88724

April 3, 1990

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The
Office
of
the
Solicitor
C. Manalo for defendant-appellant.

General

for

plaintiff-appellee.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a
boarding house at Victoria St., Poblacion, Borongan, Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above

named accused with lewd designs and by the use of a Batangas knife
he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay
with and succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the exhibits
were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered
its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused
CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC),
beyond reasonable doubt, with the aggravating circumstances of
dwelling and nightime (sic) with no mitigating circumstance to offset
the same, and considering the provisions of the Indeterminate
Sentence Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12)
YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN,
the amount of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its decision,
the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the
appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside
its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp.
71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at
the St. Joseph's College at Borongan, Eastern Samar. Appellant was a
Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her
boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left,
she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then
recognized appellant who was a frequent visitor of another boarder
(pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs
with him. Since the door which led to the first floor was locked from the
inside, appellant forced complainant to use the back door leading to
the second floor (p. 77, ibid). With his left arm wrapped around her
neck and his right hand poking a "balisong" to her neck, appellant
dragged complainant up the stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a room. With the Batangas
knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant undressed
himself. He then ordered complainant to take off her clothes. Scared,
she took off her T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his
order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of his
penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both his hands flat on the
floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled to
another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the
stairs crying. Pat. Donceras, the first policeman to see her, took off his
jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar
Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose
clothing with no under-clothes; appears in state of shock, per
unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or
over the vulva, errythematous (sic)areas noted surrounding
vaginal orifice, tender, hymen intact; no laceration fresh and old
noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the
testimonies of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because
they "show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and
validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered
as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of
the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies (Aportadera
et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA
695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No.
L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony of the
victim that the accused asked her to hold and guide his penis in order to
have carnal knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the act."
(p. 34, Rollo). The allegation would have been meritorious had the testimony
of the victim ended there. The victim testified further that the accused was
holding a Batangas knife during the aggression. This is a material part of the
victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor
the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is
not much to be desired as to the sincerity of the offended party in her
testimony before the court. Her answer to every question profounded
(sic), under all circumstances, are plain and straightforward. To the
Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into

the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is
necessary to show that rape was committed provided her testimony is clear
and free from contradiction and her sincerity and candor, free from suspicion
(People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v.
Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in
this case did not only state that she was raped but she testified convincingly
on how the rape was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the time she was
brought to the hospital was corroborated by Pat. Donceras. Interpreting the
findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast,
multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are
conclusive proof of struggle against force and violence exerted on the victim
(pp. 52-53, Rollo). The trial court even inspected the boarding house and was
fully satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe
enough to carry the weight of both accused and offended party without
the slightest difficulty, even in the manner as narrated. The partitions
of every room were of strong materials, securedly nailed, and would
not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126
SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less than
eight (8) meters, will perhaps occasion no injury to a frightened
individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl, like
the offended party to whom honor appears to be more valuable than
her life or limbs? Besides, the exposure of her private parts when she
sought assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was
out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982,
117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having
been rendered entirely naked by appellant and that even in her nudity,
she had to run away from the latter and managed to gain sanctuary in
a house owned by spouses hardly known to her. All these acts she
would not have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other
witnesses to corroborate the allegations in the complaint and the nonpresentation of the medico-legal officer who actually examined the victim.
Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v.
Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the trial court stated
that it was by agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and
thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements
of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious
and

3. When the woman is under twelve years of age, even though neither
of the circumstances mentioned in the two next preceding paragraphs
shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily

connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it
by reason of causes independent of the will of the perpetrator.
There is an attempt 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.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape.1wphi1 Our concern now is
whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed
all the acts of execution which would produce the felony and (2) that the
felony is not produced due to causes independent of the perpetrator's will. In
the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which
is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts
which should produce the crime. In other words, to be an attempted
crime the purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior to the
moment when he has performed all of the acts which should produce
the crime as a consequence, which acts it is his intention to perform. If
he has performed all of the acts which should result in the

consummation of the crime and voluntarily desists from proceeding

further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the
moment when all of the acts have been performed which should result
in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing
all of the acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished.Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People
v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29,
1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by
the male organ is sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration
of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al.,
53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of People
v. Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated
rape there being no conclusive evidence of penetration of the genital organ
of the offended party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal Code, as amended
by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.
4111 (dated March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted orfrustrated and a
homicide is committed by reason or on the occasion thereof. We are of the
opinion that this particular provision on frustrated rape is a dead provision.
The Eria case, supra, might have prompted the law-making body to include
the crime of frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the

genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed
back to the offended party the answer as to whether or not there actually
was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether there was penetration
or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended
party and that a medical certificate is not necessary (People v. Royeras
People v. Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of the
offended party is at variance with the medical certificate. As such, a
very disturbing doubt has surfaced in the mind of the court. It should
be stressed that in cases of rape where there is a positive testimony
and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of
the manifest variance in the medical certificate, would be productive of
mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation)
and tender. It bears emphasis that Dr. Zamoradid not rule out penetration of
the genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this testimony, the
victim positively testified that there was penetration, even if only partially
(pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even
on the sole basis of the victim's testimony if credible (People v. Tabago, G.R.
No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the
prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the records,
We find the evidence sufficient to prove his guilt beyond reasonable doubt of
the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever
the crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of
the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May
31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED.
The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of
the crime of rape and sentenced to reclusion perpetua as well as to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
SIMON FERNAN, JR. and G.R. No. 145927
EXPEDITO TORREVILAS,[1]
Petitioners, Present:
QUISUMBING, J., Chairperson,
CARPIO,

- versus - CARPIO MORALES,

TINGA, and
VELASCO, JR., JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. August 24, 2007
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The instant petition under Rule 45 originated from 119 criminal cases [2] filed
with the Sandiganbayan (SB) involving no less than 36 former officials and
employees of the then Ministry of Public Highways (MPH) and several
suppliers of construction materials for defalcation of public funds arising from
numerous transactions in the Cebu First Highway Engineering District in
1977. Because of the sheer magnitude of the illegal transactions, the
number of people involved, and the ingenious scheme employed in
defrauding the government, this infamous 86 million highway scam has few
parallels in the annals of crime in the country.
The Case
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the reversal of the
December 4, 1997 Decision [3] of the SB in the consolidated Criminal Case
Nos. 1640, 1641, 1642, 1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879,
1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 2839, 2840,
2841, 2842, 2843, 2844, 2845, 2846, 2847, 2848, 2849, 2850, 2851, 2852,
2853, 2854, 2855, 2856, 2857, 2858, 2859, 2860, 2861, 2862, 2863, 2864,
2865, 2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876,
2877, 2878, 2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886, 2887, 2888,
2889, 2890, 2891, 2892, 2893, 2894, 2895, 2896, 2897, 2898, 2899, 2900,
2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 2910, 2911, 2912,
2913, 2915, 2917, 2918, 2919, 2920, 2921, 2922, 2923, 2924, 2925, 2926,
2927, 2928, 2929, 2930, 2931, 2932, 2936, 2937, 2938, and 2939, [4] all
entitled People of the Philippines v. Rocilo Neis, et al., finding them guilty of
multiple instances of estafa through falsification of public documents; [5] and
the subsequent August 29, 2000 SB Resolution which denied their separate
pleas for reconsideration.

Petitioner Fernan, Jr. disputes the adverse judgment in only six (6)
cases, namely: 2879, 2880, 2881, 2885, 2914, and 2918; while petitioner
Torrevillas seeks exoneration in nine (9) cases, namely: 2855, 2856, 2858,
2859, 2909, 2910, 2914, 2919, and 2932.
Both petitioners assert their strong belief that their guilt has not been
established beyond reasonable doubt and, hence, exculpation is in order.

The Facts
The SB culled the facts[6] this way:
On June 21, 1978, COA Regional Director Sofronio Flores Jr.
of COA Regional Office No. 7, directed auditors Victoria C.
Quejada and Ruth I. Paredes to verify and submit a report on suballotment advises issued to various highway engineering districts
in Cebu, particularly, the Cebu City, Cebu 1st, Cebu 2nd and the
Mandaue City Highway Engineering Districts.Complying with the
directive, they conducted an investigation and in due course
submitted their findings. Their report (Exhibit C) confirmed the
issuance of fake Letters of Advice of Allotments (LAAs) in the
districts mentioned. They discovered that two sets of LAAs were
received by the districts. One set consists of regular LAAs which
clearly indicated the covering sub-allotment advices and were
duly signed by Mrs. Angelina Escao, Finance Officer of the MPH
Regional Office. The LAAs were numbered in proper sequence
and duly recorded in the logbook of the Accounting, Budget and
Finance Division. The other set consists of fake LAAs which do
not indicate the covering sub-allotment advice and were signed
by Chief Accountant Rolando Mangubat and Engr. Jose Bagasao,
instead of the Finance Officer. These fake LAAs were not
numbered in proper sequence; they were mostly undated and
were sometimes duplicated. They could not be traced to the files
and records of the Accounting, Budget and Finance Division. The
accounting entry for the disbursements made on the fake LAAs
was debited to the Accounts-Payable Unliquidated Obligations (881-400) and credited to the Checking Account with the Bureau of
Treasury (8-70-790). Nevertheless, the expenditures were taken
from obligations of the current year (1978) because all the
supporting papers of the payment vouchers were dated in that
year. The entries in the journal vouchers filed with the MPH
Regional Office were adjusted every month to 8-81-400

(unliquidated or prior years obligation), 8-83-000 (liquidated or

current year obligations) and 8-70-700 (Treasury/Agency
Account). All of these were approved for the Finance Officer by
Chief Accountant Rolando Mangubat. Mangubat, however, had no
authority to approve them because since October 1977, he had
already been detailed to the MPH Central Office. There were
indications that the practice had been going on for years.
xxxx
Due to these serious irregularities, then President Marcos
created a Special Cabinet Committee on MPH Region VII Ghost
Projects Anomalies which in turn organized a Special Task Force
composed of representatives from the Finance Ministry
Intelligence Bureau (FMIB), National Bureau of Investigation
(NBI), the Bureau of Treasury and the Commission on Audit. The
mission of the task force was to conduct a wider and more
extended investigation in all the fifteen (15) highway engineering
districts of MPH Region VII, including the Cebu First Highway
Engineering District, the 1977 questionable disbursements of
which are the subject matter of these cases.
xxxx
For a better understanding of these highways cases, the flow in
the release of funds to the various agencies of the government
and the control devices set up for disbursement and accounting
of public funds should first be explained. A chart (Exhibit B)
graphically shows the flow of allotments from the Ministry down
to the district level.
On the basis of appropriation laws and upon request made
by heads of agencies, the then Ministry of Budget released funds
to the various agencies of the government by means of an
Advice of Allotment (AA) and a Cash Disbursement Ceiling
(CDC). The Advice of Allotment is an authority for the agency to
incur obligations within a specified amount in accordance with
approved programs and projects. The Cash Disbursement Ceiling
is an authority to pay. Upon receipt of the AA and CDC from the
Budget, the Central Office of the agency prepares the Sub-Advice
of Allotment (SAA) and the Advice of Cash Disbursement Ceiling
(ACDC) for each region, in accordance with the disbursement
allotment. These are sent to the Regional Office. Upon receipt,
the Budget Officer of the region prepares the corresponding
Letters of Advice of Allotment (LAA) which are forwarded to the
various districts of the region (The amount that goes to each

district is already indicated in the Advice of Allotment). Only

upon receipt of the LAA is the district office authorized to incur
obligations.
Now, how are funds released by the Regional Office to the
different districts and ultimately paid out to contractors, the
District Engineer submits to the Regional Director a request for
allotment in accordance with the program of work prepared by
the former. This procedure starts with the preparation of a
Requisition for Supplies and Equipment (RSE) in the District
Office by the Senior Civil Engineer, approved by the District
Engineer, and signed by the Chief Accountant of the Highway
Engineering District, who certifies as to the availability of
funds. The RSE is then submitted to the Regional Director for
approval. Once it is approved, a Request for Obligation of
Allotment (ROA) is prepared by the Chief Accountant of the
district Senior Civil Engineer. The ROA signifies that a certain
amount of district funds has been set aside or earmarked for the
particular expenditures stated in the RSE. On the basis of the
ROA, the District Office puts up advertisements, [conducts]
biddings, makes awards and prepares purchase orders which are
served on the winning bidder. The District Office also prepares a
summary of deliveries with the corresponding delivery receipts
and tally sheets, conducts inspection and prepares the General
Voucher for the payment of deliveries. Once the General Voucher
(GV) has been prepared, the corresponding check in the form of
a Treasury Check Account for Agency (TCAA) is drawn by the
Disbursing Officer and finally released to the contractor.
At the end of every month, the Report of Checks Issued by
Deputized Disbursing Officer (RCIDD) is prepared, listing all the
checks issued during that period. The RCIDDO is submitted to the
accounting division of the region. Upon receipt of the RCIDDO,
the Regional Office draws a journal voucher, debiting the account
obligation (liquidated or unliquidated obligation, whichever is
applicable), and crediting the account Treasury Check Account
for Agency (TCAA). The RCIDDO is recorded in the Journal of
Checks Issued by Deputized Disbursing Officers (JCIDDO) and
posted in the general ledger at the end of each month.
Simultaneous with the flow of the RCIDDO, the ROAs are
summarized in the Reports of Obligations Incurred (ROI) in the
District Office, once or twice a month, depending upon the
volume of transactions. The ROI is then submitted to the
Regional Office. Upon receipt of the ROI, the accountant of the
Regional Office draws a journal voucher taking up the following

entry: debiting the appropriation allotted (0-90-000) and

crediting the obligation incurred (0-82-000). This is recorded in
the general voucher and posted to the general ledger at the end
of each month.The journal voucher is prepared, closing the
account 8-70-709 to 8-71-100-199 at the end of each month. It is
also recorded and posted to the general ledger. At the end of the
month, the balances of each account shown in the general ledger
are summarized in a statement called the trial balance. The trial
balance is submitted to the MPH Central Office in Manila where it
is consolidated with other trial balances submitted by other
regional offices.
xxxx
The elaborate accounting procedure described above with
its system of controls was set up obviously to make sure that
government funds are properly released, disbursed and
accounted for. In the hands of untrustworthy guardians of the
public purse, however, it proved to be inadequate. There were
loopholes which an unscrupulous person adroit in government
accounting could take advantage of to surreptitiously draw
enormous sums of money from the government.
Sometime in February, 1977, accused Rolando Mangubat
(Chief Accountant), Delia Preagido (Accountant III), Jose Sayson
(Budget Examiner), and Edgardo Cruz (Clerk II), all of MPH Region
VII, met at the Town and Country Restaurant in Cebu City and
hatched an ingenious plan to siphon off large sums of money
from government coffers. Mangubat had found a way to
withdraw government money through the use of fake LAAs,
vouchers and other documents and to conceal traces thereof
with the connivance of other government officials and
employees. In fine, the fraudulent scheme involved the splitting
of LAAs and RSEs so that the amount covered by each general
voucher is less than P50,000.00 to do away with the approval of
the Regional Auditor; the charging of disbursements to
unliquidated obligations due the previous year to provide the
supposed source of funds; and the manipulation of the books of
account by negation or adjustment, i.e., the cancellation of
checks through journal vouchers to conceal disbursements in
excess of the cash disbursement ceiling (CDC), so as not to
reflect such disbursements in the trial balances submitted to the
Regional Office.
Mangubat enticed Preagido, Cruz and Sayson to join
him. All three agreed to help him carry out his plan. They typed

the fake LAAs during Saturdays. Cruz and Sayson also took
charge of negotiating or selling the fake LAAs to contractors at
26% of the gross amount. Preagido on her part manipulated the
General Ledger, Journal Vouchers and General Journal thru
negative entries to conceal the illegal disbursements. Thus, in
the initial report of the auditors (Exhibit D), it was discovered
that the doubtful allotments and other anomalies escaped notice
due to the following manipulations:
The letter-advices covering such allotments (LAA)
were generally not signed by the Finance Officer nor
recorded in the books of accounts. Disbursements made on
the basis of these fake LAAs were charged to the
unliquidated Obligations (Account 8-81-400), although the
obligations being paid were not among those certified to
the unliquidated obligations (Account 8-81-400) at the end
of the preceding year. To conceal the overcharges to
authorized allotments, account 8-81-400 and the excess of
checks issued over authorized cash disbursements ceiling,
adjustments were prepared monthly through journal
vouchers to take up the negative debit to Account 8-81400 and a negative credit to the Treasury Checking
Account for Agencies Account 8-70-790. These journal
vouchers in effect cancelled the previous entry to record
the disbursements made on the basis of the fake LAAs.
Thus, the affected accounts (Accounts 8-81-400 and 8-70790), as appearing in the trial balance would not show the
irregularity. The checks, however, were actually issued.
The four formed the nucleus of the nefarious conspiracy. Other
government employees, tempted by the prospect of earning big
money, allowed their names to be used and signed spurious
documents.
Although the anomalies had been going on for sometime
(February 1977 to June 1978), the PNB and Bureau of Treasury
had no inkling about it until the NBI busted the illegal operations.
(Some of the recipients of the stolen funds spent lavishly and
bought two cars at a time). The reason for this is that, at that
time, the PNB and Bureau of Treasury were not furnished copy of
the mother CDC and the local branch of the PNB did not receive
independent advice from the PNB head office in Manila. There
were no deposits of money made with the PNB from which
withdrawals could be charged. Only CDCs were presented to it,
and not knowing that some of the CDCs were fake, the PNB
branch paid out the checks drawn against them. The bank had
also no way of knowing what amount was appropriated for the

district; consequently, it did not know if the limit had already

been exceeded. Only an insider steep in government accounting,
auditing and banking procedures, particularly their flaws and
loopholes, could have pulled off such an ingenious and audacious
plan.
xxxx
Focusing our attention now on the anomalies committed in the
Cebu First District Engineering District, hereinafter referred to as
the Cebu First HED for brevity, the Court finds that the same
pattern of fraud employed in the other highway engineering
districts in MPH Region VII was followed. The Cebu First HED
received from Region VII thirty-four Letters of Advice of Allotment
(LAAs) in the total sum of P4,734,336.50 and twenty-nine (29)
corresponding Sub-Advices of Cash Disbursement Ceiling
(SACDCs), amounting to P5,160,677.04 for the period January 1,
1977 to December 31, 1977. But apart from this, the Cebu First
HED appears to have also received for the same period another
set of eighty-four (84) LAAs amounting to P4,680,694.76 which
however, could not be traced to any Sub-Advice of Allotment
(SAA) or matched to the Advices of Cash Disbursement Ceiling
(ACDCs) received from the MPH and Regional Office. This is
highly irregular and not in consonance with accounting
procedures.
It was also made to appear that the payments were made for
alleged prior years obligations and chargeable to Account 8-81400,
obviously
because,
they
were
not
properly
funded.Furthermore, the list of projects in Region VII for 1977
showed that Cebu First HED completed rehabilitation and/or
improvement of roads and bridges in its districts from February
to May 1977, with expenditures amounting to P613,812.00. On
the other hand, the expenditures for barangay roads in the same
district in 1977 amounted to P140,692.00, and these were all
completed within the period from November to December,
1977. These completed projects were properly funded by
legitimate LAAs and CDCs in the total amount of only
P754,504.00. However, an additional amount of P3,839,810.74
was spent by the Cebu First HED for maintenance of roads and
bridges for the same year (1977) but the same could not be
traced to any authoritative document coming from the MPH.
xxxx

A total of 132 General Vouchers, emanating from fake LAAs and

ACDCs, were traced back to Rolando Mangubat, Regional
Accountant of Region VII and Adventor Fernandez, Regional
Highway Engineer, also of Region VII. Those LAAs and ACDCs
became the vehicles in the disbursement of funds amounting to
P3,839,810.74, through the vouchers purportedly issued for the
purchase and delivery of the aforementioned materials allegedly
used for the maintenance and repair of the national highways
within the Cebu First HED. Despite the enormous additional
expenditure of P3,839,810.74, the roads and bridges in the
district, as found out by the NBI, did not show any
improvement. As testified to by several barangay captains, the
road maintenance consisted merely of spreading anapog or
limestone on potholes of the national highway.
Obviously, the vouchers for payments of alleged
maintenance of roads and bridges in the additional amount of
P3,839,810.74 were prepared for no other purpose than to
siphon the said amount from the government coffer into the
pockets of some officials and employees of Region VII and the
Cebu First HED, as well as the suppliers and contractors who
conspired and confederated with them.

The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose

Sayson, and Edgardo Cruz, all of MPH Region VII, were found guilty in all 119
counts and were accordingly sentenced by the SB. The other conniver, Delia
Preagido, after being found guilty in some of the cases, became a state
witness in the remainder. On the basis of her testimony and pertinent
documents, Informations were filed, convictions were obtained, and criminal
penalties were imposed on the rest of the accused.
On the other hand, petitioners were both Civil Engineers of the MPH assigned
to the Cebu First Highway Engineering District. Petitioner Fernan, Jr. was
included among the accused in Criminal Case Nos. 2879, 2880, 2881, 2885,
2914, and 2918 allegedly for having signed six (6) tally sheets or statements
of deliveries of materials, used as bases for the preparation of the
corresponding number of general vouchers. Fund releases were made to the
suppliers, contractors, and payees based on these general vouchers.
The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads as
follows:

The undersigned accuses Rocilo Neis, Rolando Mangubat,

Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de
Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan,
Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz,
Leonila del Rosario, Engracia Escobar, Abelardo Cardona,
Leonardo Tordecilla, Agripino Pagdanganan, Ramon Quirante,
Mariano Montera, Mariano Jarina, Leo Villagonzalo, Asterio
Buqueron, Zosimo Mendez, Simon Fernan, Jr. and Juliana de los
Angeles for estafa thru falsification of public and commercial
documents, committed as follows:
That
on,
about
and
during
the
period
from December 1, 1976 up to January 31, 1977, both
dates inclusive, in the City of Cebu and in Cebu Province,
and within the jurisdiction of this Honorable Court, the
accused Rocilo Neis, Assistant District Engineer of Cebu
HED I; Rolando Mangubat, the Chief Accountant of Region
VII of the Ministry of Public Highways and Adventor
Fernandez, Regional Highway Engineer of same Regional
Office, conniving with each other to defraud the Philippine
Government with the indispensable cooperation and
assistance of Angelina Escao, Finance Officer of Region VII
of the Ministry of Public Highways; Delia Preagido,
Assistant Chief Accountant of same Regional Office; Camilo
de Letran, Chief Accountant of Cebu I HED; Manuel de
Veyra, Regional Director, MPH, Region VII; Heracleo
Faelnar, then Assistant Director MPH Region VII; Basilisa
Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde,
Supervising Accounting Clerk, MPH, Region VII; Josefina
Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget
Examiner, MPH, Region VII, Edgardo Cruz, Accountant I,
MPH, Region VII; Leonila del Rosario, Chief Finance and
Management Service, MPH, Central Office; Engracia
Escobar, Chief Accountant, MPH, Central Office; Abelardo
Cardona, Assistant Chief Accountant, MPH, Central Office;
Leonardo Tordecilla, Supervising Accountant, MPH, Central
Office; Agripino Pagdanganan, Budget Officer III, MPH,
Central Office; Ramon Quirante, Property Custodian of
Cebu I HED; Mariano Montera, Senior Civil Engineer
Engineer of Cebu I HED; Mariano Jarina, Clerk in the
Property Division of Cebu I HED; Leo Villagonzalo, Auditors
Aide of Cebu I HED; Zosimo Mendez, Auditor of Cebu I HED;
Asterio Buqueron, Administrative Officer of Cebu I HED;
Simon Fernan, Jr., Civil Engineer of Cebu I HED and Juliana
de los Angeles, an alleged supplier, all of whom took
advantage of their official positions, with the exception of

Juliana de los Angeles, mutually helping each other did

then and there willfully, unlawfully and feloniously falsify
and/or cause the falsification of the following documents,
to wit:
1. Request for Allocation of Allotment
2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-15
5. Check No. 9933064
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance
by making it appear that Regional Office No. VII of the
Ministry of Public Highways regularly issued an advice of
cash disbursement ceiling (ACDC) and the corresponding
letter of advice of allotment (LAA) to cover the purchase
of 1,400 cu. m. of item 108[7] for use in the repair of
the Cebu Hagnaya Wharf road from Km. 50.30 to
Km. 60.00, when in truth and in fact, as all the accused
knew, the same were not true and correct; by making it
appear in the voucher that funds were available and that
there were appropriate requests for allotments (ROA) to
pay the aforesaid purchase; that a requisition for said item
was made and approved; that a regular bidding was held;
that a corresponding purchase order was issued in favor of
the winning bidder; that the road construction materials
were delivered, inspected and used in the supposed project
and that the alleged supplier was entitled to payment
when in truth and in fact, as all the accused know, all of
the foregoing were false and incorrect and because of the
foregoing falsifications, the above-named accused were

able to collect from the Cebu I HED the total amount

of TWENTY EIGHT THOUSAND PESOS (P28,000.00),
Philippine Currency, in payment of the non-existing
deliveries; that the said amount ofP28,000.00 was not
reflected in the monthly trial balance submitted to the
Central Office by Region VII showing its financial condition
as the same was negated thru the journal voucher, as a
designed means to cover-up the fraud; and the accused,
once in possession of the said amount, misappropriated,
converted and misapplied the same for their personal
needs, to the damage and prejudice of the Philippine
Government in the total amount of TWENTY EIGHT
THOUSAND PESOS (P28,000.00), Philippine Currency.
CONTRARY TO LAW.
The Informations in the six (6) cases involving Fernan, Jr. were essentially
identical save for the details as highlighted in boldface above. For ease of
reference, Fernan, Jr.s criminal cases are detailed below:
Crimin
Dates of Main
al Case Commiss Docume
No.
ion
nts
Falsified
2879
December 1.
1,
General
1976 up
Voucher
to January No. B-15;
31, 1977
2. Check
No.
9933064;
2880
December 1.
1,
Request
1976 up
for
to January Allocation
31, 1977
of
Allotment
101-12105-76;
2.
General
Voucher
No. B-55;
3. Check
No.

Items
Purchased

Allegedly Amount
of
Fraud

1,400 cu. m. of item 108 PhP

for use in the repair of 28,000.0
the CebuHagnaya Wharf r 0
oad from Km. 50.30 to
Km. 60.00
1,400 cu. m. of item 108 PhP
for use in the repair of the 28,000.0
Bogo-Curva-Medellon
0
road from Km. 110.00 to
Km. 119.00

2881

January 2,
1977 up
toFebruar
y
28,
1977

2885

January 2,
1977 up
toJanuary
31, 1977

2914

October
1,
1977 up
toNovemb
er
30,
1977

2918

January 2,
1977 up
toFebruar
y
28,
1977

9933104;
1.
Request
for
Allocation
of
Allotment
101-2-5677;
2.
General
Voucher
No.
B245;
3. Check
No.
9933294;
1.
Request
for
Allocation
of
Allotment
101-12112-76;
2.
General
Voucher
No. B-76;
3. Check
No.
9933125;
1.
General
Voucher
No.
B927;
2. Check
No.
9403425;
1.
General
Voucher
No.
B107;

Approximately 1,500 cu. PhP

m. of item 108 for use in 31,000.0
the
repair
and 0
rehabilitation of damaged
roads and bridges by
Typhoon Aring at the
Tabogon-Bogo provincial
road from Km. 92 to Km.
98

materials for use in the PhP

repair and rehabilitation 30,000.0
of the Daan-Bantayan 0
road from Km. 127.00 to
Km. 136

1,200 cu. m. of item 108 PhP

for
use
in
the 27,000.0
rehabilitation of the Cajel- 0
Lugo, Barbon barangay
road

1,500 cu. m. of item 108 PhP

for the rehabilitation of 30,000.0
theCebu North HagnayaW 0
harf road from Km. 71 to
Km. 76

2. Check
No.
9933157;

On the other hand, petitioner Torrevillas was one of the accused in

Criminal Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and
2932.
The Information against Torrevillas in SB Criminal Case No. 2855 reads
as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat,
Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de
Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan,
Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz,
Leonila del Rosario, Engracia Escobar, Abelardo Cardona,
Leonardo Tordecilla, Agripino Pagdanganan, Ramon Quirante,
Jorge de la Pea, Leo Villagonzalo, Asterio Buqueron, Expedito
Torrevillas, Mariano Montera and Rufino V. Nuez for estafa thru
falsification of public and commercial documents, committed as
follows:
That on, about and during the period from June 1,
1977 up to June 30, 1977, both dates inclusive, in the
City of Cebu and in Cebu Province, and within the
jurisdiction of this Honorable Court, the accused Rocilo
Neis, Assistant District Engineer of Cebu HED I; Rolando
Mangubat, the Chief Accountant of Region VII of the
Ministry of Public Highways and Adventor Fernandez,
Regional Highway Engineer of same Regional Office,
conniving with each other to defraud the Philippine
Government with the indispensable cooperation and
assistance of Angelina Escao, Finance Officer of Region VII
of the Ministry of Public Highways; Delia Preagido,
Assistant Chief Accountant of same Regional Office; Camilo
de Letran, Chief Accountant of Cebu I HED; Manuel de
Veyra, Regional Director, MPH, Region VII; Heracleo
Faelnar, then Assistant Director MPH Region VII; Basilisa
Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde,
Supervising Accounting Clerk, MPH, Region VII; Josefina
Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget
Examiner, MPH, Region VII, Edgardo Cruz, Accountant I,
MPH, Region VII; Leonila del Rosario, Chief Finance and

Management Service, MPH, Central Office; Engracia

Escobar, Chief Accountant, MPH, Central Office; Abelardo
Cardona, Assistant Chief Accountant, MPH, Central Office;
Leonardo Tordecilla, Supervising Accountant, MPH, Central
Office; Agripino Pagdanganan, Budget Officer III, MPH,
Central Office; Ramon Quirante, Property Custodian of
Cebu I HED; Jorge de la Pea, Auditor of Cebu I HED; Leo
Villagonzalo, Auditors Aide of Cebu I HED; Asterio
Buqueron, Administrative Officer of Cebu I HED; Expedito
Torrevillas, representative of the Engineers Office, Cebu I
HED; Mariano Montera, Senior Civil Engineer Engineer of
Cebu I HED; and Rufino V. Nuez, an alleged supplier, all of
whom took advantage of their official positions, with the
exception of Rufino V. Nuez, mutually helping each other
did then and there willfully, unlawfully and feloniously
falsify and/or cause the falsification of the following
documents, to wit:
1. Request for Allocation of Allotment 101-10-18676; 10-190-76; 10-192-76; 10-188-76; 10-18076
2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-613
5. Check No. 9403099
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance
by making it appear that Regional Office No. VII of the
Ministry of Public Highways regularly issued an advice of
cash disbursement ceiling (ACDC) and the corresponding
letter of advice of allotment (LAA) to cover the purchase

of 153.63 m. t. of item 310[8] for use in asphalting of

the Toledo-Tabuelan road at Km. 108.34 to Km.
109.52, when in truth and in fact, as all the accused knew,
the same were not true and correct; by making it appear in
the voucher that funds were available and that there were
appropriate requests for allotments (ROA) to pay the
aforesaid purchase; that a requisition for said item was
made and approved; that a regular bidding was held; that a
corresponding purchase order was issued in favor of the
winning bidder; that the road construction materials were
delivered, inspected and used in the supposed project and
that the alleged supplier was entitled to payment when in
truth and in fact, as all the accused know, all of the
foregoing were false and incorrect and because of the
foregoing falsifications, the above-named accused were
able to collect from the Cebu I HED the total amount
of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY
ONE PESOS & 85/100 (P48,431.85), Philippine
Currency, in payment of the non-existing deliveries; that
the said amount of P48,431.85 was not reflected in the
monthly trial balance submitted to the Central Office by
Region VII showing its financial condition as the same was
negated thru the journal voucher, as a designed means to
cover-up the fraud; and the accused, once in possession of
the said amount, misappropriated, converted and
misapplied the same for their personal needs, to the
damage and prejudice of the Philippine Government in the
total amount of FORTY EIGHT THOUSAND FOUR
HUNDRED
THIRTY
ONE
PESOS
&
85/100
(P48,431.85), Philippine Currency.
CONTRARY TO LAW.
The Torrevillas cases were substantially the same save for the details
highlighted in the aforequoted typical accusatory pleading. For ease of
reference, Torrevillas criminal cases are particularized as follows:
Criminal
Case No.
2855

Dates
of
Commissio
n
June
1,
1977 up
toJune
30,
1977

Main
Documents
Falsified
1. Request
for
Allocation of
Allotment

Items
Allegedly
Purchased
153.63 m. t.
of item 310
for use in
asphalting of

Amount of
Fraud
PhP
48,431.85

2856

June
1,
1977 up
toJune
30,
1977

2858

June
1,
1977 up
toJuly
31,
1977

2859

June
1,
1977 up
toJune
31,
1977

101-10-18676; 10-19076; 10-19276; 10-18876; 10-18076;

2.
General
Voucher No.
B-613;
3. Check No.
9403099;
1. Request
for
Allocation of
Allotment
101-10-1576;
9-20176;
8-15276;
8-15376;9-18176; 9-184-76
2.
General
Voucher No.
B-619;
3. Check No.
9403105;
1. Request
for
Allocation
Allotment
101-6-23476;
6-23776;
6-23976;
6-24176; 6-240-76
2.
General
Voucher No.
B-629;
3. Check No.
9403115;
1. Request
for
Allocation of
Allotment
101-7-63-

the ToledoTabuelan
road
from
Km. 108.34
to
Km.
109.52

153.76 m. t. PhP
of item 310 48,472.84
for use in
the
asphalting of
the ToledoTabuelan
road
from
Km 108.34
to
Km.
109.52

151.35 m. t. PhP
of item 310 47,713.09
for use in
the
asphalting of
the ToledoTabuelan
road
from
Km. 108.34
to
Km.
109.52

110.01 m. t. PhP
of item 310 34,680.65
for use in
asphalting of
the Toledo-

2909

76;
8-10276; 8-121-76
2.
General
Voucher No.
B-631;
3. Check No.
9403117;
September
1.
General
1, 1977 up Voucher No.
to November B-928;
30, 1977
2. Check No.
9403426;

2910

September
1, 1977 up
to November
30, 1977

1.
General
Voucher No.
B-929;
2. Check No.
9403427;

2914

October
1,
1977 up
toNovember
30, 1977

1.
General
Voucher No.
B-927;
2. Check No.
9403425;

2919

January
2,
1977 up
toFebruary
28, 1977

1.
General
Voucher No.
B-244;
2. Check No.
9933293;

Tabuelan
road
from
Km. 108.34
to
Km.109.52
1,200 cu.m.
of item 108
for use in
the
rehabilitatio
n
of
the
BuanoyCantibas,
Balaban
barangay
road
1,200 cu. m.
of item 108
for use in
the
rehabilitatio
n
of
the
MagayCanamukan,
Compostela
barangay
road
1,200 cu. m.
of item 108
for use in
the
rehabilitatio
n
of
the
Cajel-Lugo,
Barbon
barangay
road
1,550 cu. m.
of item 108
for use in
the
repair
and
rehabilitatio

PhP
27,900.00

PhP
27,900.00

PhP
27,000.00

PhP
31,000.00

2932

June
1, 1. Request
1977 up
for
toJuly
31, Allocation of
1977
Allotment
101-7-8376; 7-84-76;
7-124-76; 8153-76;
8170-76;
2.
General
Voucher B643;
3. Check No.
9403130;

n
of
damaged
roads
and
bridges
at
the ToledoTabuelan
national
road
from
Km. 71 to
Km. 83
250 gals of PhP
aluminum
44,762.58
paint
324
gals of red
lead
paint
for use in
the
maintenanc
e of national
roads
and
bridges

The Sandiganbayans Ruling

The anti-graft court was fully convinced of the guilt of petitioner
Fernan, Jr.; and in its December 4, 1997 Decision, it found him criminally
liable in the six (6) cases against him, thus:
In Criminal Case No. 2879, the Court finds accused JOSE
SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO
MENDEZ, MARIANO JARINA and SIMON FERNAN, Jr.,
GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years ofprision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of

Twenty Eight Thousand Pesos (P 28,000.00); and, to pay their

proportionate share of the costs.[9] (Emphasis supplied.)
In
Criminal
Case
No. 2880,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA,
ZOSIMO
MENDEZ, andSIMON FERNAN, Jr., GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of
Public Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and there
being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging
from six (6) years of prision correccional, as minimum, to ten
(10) years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to pay a
fine of Three Thousand Five Hundred Pesos (P 3,500.00); to
indemnify, jointly and severally the Republic of the Philippines in
the amount of Twenty Eight Thousand Pesos (P 28,000.00); and,
to pay their proportionate share of the costs. [10] (Emphasis
supplied.)
In
Criminal
Case
No. 2881,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr.,
GUILTYbeyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Thirty One Thousand Pesos (P 31,000.00); and, to pay their
proportionate share of the costs.[11] (Emphasis supplied.)
In
Criminal
Case
No. 2885,
the
Court
finds
accused CAMILO DE LETRAN JOSE SAYSON, RAMON
QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr.,
GUILTYbeyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an

indeterminate penalty ranging from six (6) years of prision

correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Thirty Thousand Pesos (P 30,000.00); and, to pay their
proportionate share of the costs.[12](Emphasis supplied.)
In
Criminal
Case
No. 2914,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN,
Jr., GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as defined
and penalized in Articles 318 and 171, in relation to Article 48 of
the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to
an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their
proportionate share of the costs.[13] (Emphasis supplied.)
In
Criminal
Case
No. 2918,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
ZOSIMO
MENDEZ, SIMON
FERNAN,
Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as
co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being
no modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six (6)
years ofprision correccional, as minimum, to ten (10) years, eight
(8) months and one (1) day of prision mayor, as maximum, with
the accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Thirty Thousand Pesos (P 30,000.00); and, to pay their
proportionate share of the costs.[14] (Emphasis supplied.)
Petitioner Torrevillas suffered the same fate and was convicted in the nine (9)
criminal cases, to wit:

In
Criminal
Case
No. 2855,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA, and EXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as coprincipals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being
no modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six (6)
years ofprision correccional, as minimum, to ten (10) years, eight
(8) months and one (1) day of prision mayor, as maximum, with
the accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Forty Eight Thousand Four Hundred Thirty One Pesos and 85/100
(P 48,431.85); and, to pay their proportionate share of the costs.
[15]
(Emphasis supplied.)
In
Criminal
Case
No. 2856,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA and EXPEDITO
TORREVILLASGUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each
of them to an indeterminate penalty ranging from six (6) years
of prision correccional, as minimum, to ten (10) years, eight (8)
months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Forty Eight Thousand Four Hundred Seventy Two Pesos and
84/100 (P 48,472.84); and, to pay their proportionate share of
the costs.[16] (Emphasis supplied.)
In
Criminal
Case
No.
2858,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA
and EXPEDITO
TOREVILLAS, GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru Falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an

indeterminate penalty ranging from six (6) years of prision

correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100
(P47,713.09); and, to pay their proportionate share of the costs.
In
Criminal
Case
No.
2859,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA
and EXPEDITO
TOREVILLAS, GUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru Falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each
of them to an indeterminate penalty ranging from six (6) years
of prision correccional, as minimum, to ten (10) years, eight (8)
months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Thirty Four Thousand Six Hundred Eighty pesos and 65/100
(P34,680.65); and , to pay their proportionate share of the costs.
[17]

In
Criminal
Case
No. 2909,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
FLORO
JAYME and EXPEDITO
TORREVILLASGUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each
of them to an indeterminate penalty ranging from six (6) years
of prision correccional, as minimum, to ten (10) years, eight (8)
months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and,
to pay their proportionate share of the costs. [18] (Emphasis
supplied.)

In
Criminal
Case
No. 2910,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
FLORO
JAYME and EXPEDITO
TORREVILLASGUILTY beyond reasonable doubt as co-principals
in the crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each
of them to an indeterminate penalty ranging from six (6) years
of prision correccional, as minimum, to ten (10) years, eight (8)
months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and,
to pay their proportionate share of the costs. [19] (Emphasis
supplied.)
In
Criminal
Case
No. 2914,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN,
Jr., GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as defined
and penalized in Articles 318 and 171, in relation to Article 48 of
the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to
an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their
proportionate share of the costs. (Emphasis supplied.)
In
Criminal
Case
No. 2919,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA,
ZOSIMO
MENDEZ,EXPEDITO
TORREVILLAS and ISMAEL
SABIO,
Jr. GUILTY beyond reasonable doubt as co-principals in the crime
of Estafa thru falsification of Public Documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances
in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months

and one (1) day of prision mayor, as maximum, with the

accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly
and severally the Republic of the Philippines in the amount of
Thirty One Thousand Pesos (P 31,000.00); and, to pay their
proportionate share of the costs.[20] (Emphasis supplied.)
In
Criminal
Case
No. 2932,
the
Court
finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE,
MARIANO
MONTERA,
PEDRITO
SEVILLE andEXPEDITO
TORREVILLAS GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in
Articles 318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an indeterminate
penalty ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred
Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Forty Four Thousand
Seven Hundred Sixty Two Pesos and 58/100 (P 44,762.58); and,
to pay their proportionate share of the costs. [21] (Emphasis
supplied.)
Petitioners made the supplication before the court a quo to recall the adverse
judgments against them which was declined by the August 29, 2000 SB
Resolution.
Firm in their belief that they were innocent of any wrongdoing, they now
interpose the instant petition to clear their names.
The Issues
Petitioners put forward two (2) issues, viz:
I
THE
HONORABLE
SANDIGANBAYAN
TOTALLY
IGNORED
PETITIONERS CONSTITUTIONAL RIGHT TO BE PRESUMED
INNOCENT WHEN IT RULED THAT THE BURDEN OF CONVINCING
THE HON. COURT THAT THE DELIVERIES OF THE ROAD
MATERIALS ATTESTED TO HAVE BEEN RECEIVED BY THEM WERE

NOT GHOST DELIVERIES RESTS WITH THE ACCUSED AND NOT

WITH THE PROSECUTION.
II
THE HONORABLE SANDIGANBAYAN ERRED IN CONVICTING
PETITIONERS
AS
CO-CONSPIRATORS
DESPITE
THE
PROSECUTIONS FAILURE TO SPECIFICALLY PROVE BEYOND
REASONABLE DOUBT THE FACTS AND CIRCUMSTANCES THAT
WOULD IMPLICATE THEM AS CO-CONSPIRATORS AND JUSTIFY
THEIR CONVICTION.
The Courts Ruling
We are not persuaded to nullify the verdict.
Petitioners guilt was established beyond reasonable doubt
Petitioners mainly asseverate that their guilt was not shown beyond a
peradventure of doubt and the State was unable to show that government
funds were illegally released based on alleged ghost deliveries in conjunction
with false or fake tally sheets and other documents which they admittedly
signed.
We are not convinced.
Our Constitution unequivocally guarantees that in all criminal prosecutions,
the accused shall be presumed innocent until the contrary is proved. [22] This
sacred task unqualifiedly means proving the guilt of the accused beyond a
reasonable doubt. Definitely, reasonable doubt is not mere guesswork
whether or not the accused is guilty, but such uncertainty that a reasonable
man may entertain after a fair review and consideration of the
evidence. Reasonable doubt is present when
after the entire comparison and consideration of all the
evidences, leaves the minds of the [judges] in that condition that
they cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge; a certainty that convinces
and directs the understanding, and satisfies the reason and
judgment of those who are bound to act conscientiously upon it.
[23]

A thorough scrutiny of the records is imperative to determine whether or not

reasonable doubt exists as to the guilt of accused Fernan, Jr. and Torrevillas.
Petitioners were charged with the complex crime of estafa through
falsification of public documents as defined and penalized under Articles 318
and 171 in relation to Article 48 of the Revised Penal Code, thus:
ART. 318. Other deceits. The penalty of arresto mayor and a fine
of not less than the amount of the damage caused and not more
than twice such amount shall be imposed upon any person who
shall defraud or damage another by any deceit not mentioned in
the preceding articles of this chapter.
ART. 171. Falsification by public officer, employee; or notary or
ecclesiastical minister. The penalty of prision mayor and a fine
not to exceed 5,000 pesos shall be imposed upon any public
officer, employee, or notary who, taking advantage of his official
position, shall falsify a document by committing any of the
following acts:
xxxx
4. Making untruthful statements in a narration of facts;
ART. 48. Penalty for complex crimes. 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, the
penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period.

The complex crime is pruned into the following essential elements:

For estafa
1. Deceit: Deceit is a specie of fraud. It is actual fraud, and
consists in any false representation or contrivance whereby one
person overreaches and misleads another, to his hurt. There is
deceit when one is misled, either by guile or trickery or by other
means, to believe to be true what is really false.[24]
2. Damage: Damage may consist in the offended party being
deprived of his money or property as a result of the defraudation,
disturbance in property right, or temporary prejudice.[25]

For falsification
1. That the offender is a public officer, employee, or notary
public;
2. That he takes advantage of his official position;
3. That he falsifies a document by committing any of the acts
defined under Article 171 of the Revised Penal Code.[26]
Before the SB, a Memorandum of Agreement (MOA) dated September 1,
1988 was entered into between the State and the accused with the following
stipulations and admissions:
(1) To expedite the early termination of the instant cases
and abbreviate the testimony of Mrs. Delia Preagido, the
prosecution and the accused have agreed to reproduce and
adopt as the testimony of Preagido in the instant cases, her
previous testimonies in Criminal Cases Nos. 889, etc. (Mandaue
City HED 78 cases), on May 18 and 19, 1982 and in Criminal
Cases Nos. 1446-1789, etc. (Danao City HED 77 cases) on
November 10, 1987 and March 14, 1988, both on direct and
cross examination x x x without prejudice to whatever direct
and/or cross examination question, that may be propounded by
the Prosecution and the accused on said State witness, which
questions will only be limited to the fake or irregular LAAs and
SACDCs issued to Cebu I HED in 1977, the sale of such fake or
irregular LAAs and SACDCs issued to Cebu I HED in 1977, the
sale of such fake or irregular LAAs and SACDCs in said
engineering district in the said year and the participation of the
accused thereon;
(2) That in the event Mrs. Delia Preagido is presented to
testify as a State witness in the instant cases without
reproducing and adopting her previous testimonies in the
Mandaue City HED 78 and the Danao City HED 77 cases, she will
identify documents and exhibits which have been previously
marked and identified by other prosecution witness x x x.
(3) That in the previous testimonies of Mrs. Delia Preagido
in the Mandaue City HED 78 and the Danao City HED 77 cases,
she identified twenty-six separate lists containing names of
officials and employees of MPH, Regional Office No. VII, of the
various Highways Engineering Districts in MPH, Region VII, and
the MPH Central Office who have allegedly received money or
various sums from 1977 to 1978 out of the proceeds or sales of

fake LAAs in 1977 and 1978 and, therefore, to obviate Mrs.

Preagidos previous testimony of these lists, the Prosecution
hereby reproduces and adopts specifically such testimony and
the markings of the lists, i.e., Exhibits KKK, KKK-1 to KKK-25 in
the Mandaue City HED 78 cases and Exhibits 0000, 0000-1 to
0000-25 in the Danao City HED 77 cases, substituted or remarked accordingly as Exhibits LL, LL-1 to LL-25 in the instant
cases.[27]

As a result of this MOA, the testimony of state witness Preagido on the

modus operandi of the conspirators, or the unique and distinct method of
procedure by which the malversation of public funds in Region VII of the MPH
was perpetrated and accomplished, dealt a major blow to the defenses
raised by petitioners. Preagidos vital testimony, wherein she identified the
methods, documents, exhibits, and other pertinent papers that led to the
crafting of fake Letters of Advice of Allotment (LAAs), [28] general vouchers,
disbursement of funds for non-existent projects, general vouchers, and other
documents, was not even successfully refuted or overturned by petitioners.
Preagido confirmed and admitted under oath that the illegal disbursement of
public funds pertained to non-existent projects and was supported by fake
LAAs, fake general vouchers, and other pertinent papers that were also
falsified. The fake LAAs and general vouchers were, in turn, supported by
signed tally sheets that pertained to alleged ghost deliveries of road
construction materials for non-existent or illegal projects.
The fake tally sheets, delivery receipts, reports of inspection, requests
for supplies and materials, and other related documents signed on separate
occasions by petitioners, which were attached as supporting documents to
corresponding general vouchers; the alleged amounts and quantities of road
construction materials delivered; and the specific fake general vouchers,
checks, and other pertinent documents issued which led to the illegal
disbursement of funds are summarized as follows:
Petitioner Fernan, Jr.
Crimi
nal
Case
No.

Spec
ific
Exhi
bits

Main
Docum
ents
Falsifie
d

2879

T-86-

1.

Items
Purchased

Allegedly FAKE
LAAs
that
authori
zed
purcha
se
1,400 cu. m. of item 108 Not

Amou
nt of
Fraud

PhP

f-1,
etc.
(Tally
Sheet
s)

2880

2881

2885

General
Voucher
No.
B15;
2. Check
No.
993306
4;
T-87- 1.
f-1,
Request
etc.
for
(Tally Allocatio
Sheet n
of
s)
Allotme
nt 10112-10576;
2.
General
Voucher
No.
B55;
3. Check
No.
993310
4;
T1.
104Request
g-1,
for
etc.
Allocatio
(Tally n
of
Sheet Allotme
s)
nt 1012-56-77;
2.
General
Voucher
No.
B245;
3. Check
No.
993329
4;
T-89- 1.
f-1,
Request

for use in the repair of

theCebu HagnayaWharf ro
ad from Km. 50.30 to Km.
60.00

number 28,000
ed
.00
contrar
y
to
official
procedu
re

1,400 cu. m. of item 108

for use in the repair of the
Bogo-Curva-Medellon road
from Km. 110.00 to Km.
119.00

Not
PhP
number 28,000
ed
.00
contrar
y
to
official
procedu
re

Approximately 1,500 cu.

m. of item 108 for use in
the
repair
and
rehabilitation of damaged
roads and bridges by
Typhoon Aring at the
Tabogon-Bogo
provincial
road from Km. 92 to Km.
98

Not
PhP
number 31,000
ed
.00
contrar
y
to
official
procedu
re

Materials for use in the Not

repair and rehabilitation of number

PhP
30,000

etc.
(Tally
Sheet
s)

2914

2918

for
Allocatio
n
of
Allotme
nt 10112-11276;
2.
General
Voucher
No.
B76;
3. Check
No.
993312
5;
T1.
115General
g-1,
Voucher
etc.
No.
B(Tally 927;
Sheet 2. Check
s)
No.
940342
5;
T1.
116-f- General
1,
Voucher
etc.
No.
B(Tally 107;
Sheet 2. Check
s)
No.
993315
7;

the Daan-Bantayan road ed

.00
from Km. 127.00 to Km. contrar
136
y
to
official
procedu
re

1,200 cu. m. of item 108

for
use
in
the
rehabilitation of the CajelLugo, Barbon barangay
road

PhP
27,000
.00

1,500 cu. m. of item 108

for the rehabilitation of
the Cebu NorthHagnaya W
harfroad from Km. 71 to
Km. 76

Not
PhP
number 30,000
ed
.00
contrar
y
to
official
procedu
re

Petitioner Torrevillas
Crimi
nal
Case
No.

Specific
Exhibits

Main
Documents
Falsified

2855

T-33-f
(Delivery

1.
for

Items
Allegedly
Purchase
d

FAKE
LAAs that
authorize
d
purchase
Request 153.63 m. Not
t. of item numbered

Amount
of Fraud

PhP
48,431.85

Receipt);
T-33-f-1
(Daily
Tally
Sheet);

2856

T-34-f
(Delivery
Receipt);
T-34-f-1
(Daily
Tally
Sheet);

2858

T-35-f
(Delivery
Receipt);
T-35-f-1
(Daily
Tally
Sheet);

2859

T-36-f
(Delivery
Receipt);

Allocation of
Allotment
101-10-18676; 10-19076; 10-19276; 10-18876; 10-18076;
2.
General
Voucher No.
B-613;
3. Check No.
9403099;
1.
Request
for
Allocation of
Allotment
101-10-1576;
9-20176;
8-15276;
8-15376;9-181-76;
9-184-76
2.
General
Voucher No.
B-619;
3. Check No.
9403105;
1.
Request
for
Allocation
Allotment
101-6-23476;
6-23776;
6-23976;
6-24176; 6-240-76
2.
General
Voucher No.
B-629;
3. Check No.
9403115;
1.
Request
for
Allocation of

310 for use contrary to

in
official
asphalting procedure
of
the
ToledoTabuelan
road from
Km.
108.34 to
Km.
109.52
153.76 m.
t. of item
310 for use
in
the
asphalting
of
the
ToledoTabuelan
road from
Km 108.34
to
Km.
109.52

Not
PhP
numbered
48,472.84
contrary to
official
procedure

151.35 m.
t. of item
310 for use
in
the
asphalting
of
the
ToledoTabuelan
road from
Km.
108.34 to
Km.
109.52

Not
PhP
numbered
47,713.09
contrary to
official
procedure

110.01 m. Not
PhP
t. of item numbered
34,680.65
310 for use contrary to

T-36-f-1
(Daily
Tally
Sheet);

2909

2910

2914

T-113-b
(Request
for
Supplies
and
Equipmen
t); T-113d (Report
of
Inspectio
n); T-113c
(Abstract
of Sealed
Quotation
)
T-114-c
(Request
for
Supplies
and
Equipmen
t); T-114e (Report
of
Inspectio
n); T-114f
(Abstract
of Sealed
Quotation
)
T-115-c
(Request
for
Supplies

Allotment
101-7-63-76;
8-102-76; 8121-76
2.
General
Voucher No.
B-631;
3. Check No.
9403117;
1.
General
Voucher No.
B-928;
2. Check No.
9403426;

in
asphalting
of
the
ToledoTabuelan
road from
Km.
108.34 to
Km.109.52
1,200
cu.m.
of
item
108
for use in
the
rehabilitati
on of the
BuanoyCantibas,
Balaban
barangay
road

official
procedure

1.
General
Voucher No.
B-929;
2. Check No.
9403427;

1,200 cu.
m. of item
108 for use
in
the
rehabilitati
on of the
MagayCanamuka
n,
Compostel
a barangay
road

Not
PhP
numbered
27,900.00
contrary to
official
procedure

1.
General
Voucher No.
B-927;
2. Check No.

1,200 cu.
m. of item
108 for use
in
the

Not
PhP
numbered
27,000.00
contrary to
official

Not
PhP
numbered
27,900.00
contrary to
official
procedure

2919

2932

and
Equipmen
t); T-115e (Report
of
Inspectio
n); T-115f
(Abstract
of Sealed
Quotation
)
T-117-g
(Delivery
Receipt);
T-117-g1,
etc.
(Daily
Tally
Sheets)

9403425;

rehabilitati procedure
on of the
Cajel-Lugo,
Barbon
barangay
road

1.
General
Voucher No.
B-244;
2. Check No.
9933293;

1,550 cu.
m. of item
108 for use
in
the
repair and
rehabilitati
on
of
damaged
roads and
bridges at
the ToledoTabuelan
national
road from
Km. 71 to
Km. 83
250 gals of
aluminum
paint 324
gals of red
lead paint
for use in
the
maintenan
ce
of
national
roads and
bridges

1.
Request
for
Allocation of
Allotment
101-7-83-76;
7-84-76; 7124-76;
8153-76;
8170-76;
2.
General
Voucher B643;
3. Check No.
9403130;

Not
PhP
numbered
31,000.00
contrary to
official
procedure

Not
PhP
numbered
44,762.58
contrary to
official
procedure

On the part of petitioners, they readily admitted that they either signed
the tally sheets and/or delivery receipts, reports of inspection, requests for

supplies and materials, and other related documents which became part of
the supporting documents that led to the issuance of general vouchers and
eventually the disbursement of public funds. [29]The tally sheets are
statements of delivery that purportedly indicated the specified quantities of
materials for the construction and maintenance of roads that have been
delivered on supposed project sites on given dates at specific places.
As a result of petitioners signatures in the tally sheets and/or delivery
receipts, reports of inspection, requests for supplies and materials, and other
supporting documentswhich became the basis for payment to supplierspublic
funds were released via general vouchers and checks to the said suppliers
despite the fact that the latter did not make any deliveries in accordance
with projects allegedly funded by mostly fake LAAs.
The accusation that there were no actual deliveries of road construction and
maintenance materials in support of projects or otherwise funded by LAAs
was proven true by the testimonies of the various barangay captains and
residents of the barangay who were supposed to be benefited by the
construction and repair activities of the Cebu First Highway Engineering
District. The testimonies of these barangay captains and residents are
summarized as follows:[30]
1. MACARIO LIMALIMA, Barangay Captain of Barangay
Antipolo, Medellin, Cebu, testified that his barangay is traversed
by the national highway stretching to a distance of 2 kilometers
and 750 meters (Km. 122; Km. 123 to 125). He described the
road as full of potholes. Except for filling up these potholes with
anapog or crushed limestone, no major repairs were undertaken
on the said road in 1978 or in previous years. (TSN., pp. 6-14,
June 5, 1986).[31]
2. FELOMINO
ORBISO,
Barangay
Captain
of
Cawit, Medellin, Cebu, from 1972 to 1981, testified that his
barangay is traversed by the national highway, stretching from
Km. 125 to Km. 127.9. He described the road as a rough or dirt
road. No improvement was ever made on this road whether
during the year when he gave his statement to the NBI (1978) or
in previous years. The road remained in bad shape, with
numerous potholes which the camineros merely filled up with
limestone. (TSN., pp.14-19, June 5, 1986).[32]

3. TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan

Bantayan, Cebu, from 1972 to 1982, testified that his barangay is
traversed by the national highway, stretching from Km. 132 to
Km. 134 , or a distance of 2 kilometers. He described the portion
of the highway as a rough road with potholes. He stated that the
only improvement done on this road was the filling up of the
potholes with anapog or crushed limestone and this was done
only once in 1977. It even took the camineros three months from
the time the limestones were delivered to start working on the
road. (TSN., pp. 20-26, June 5, 1986).[33]
4. LUCIA PEAFLOR, Barangay Captain of Don Pedro,
Bogo, Cebu, from 1966 to 1982, testified that her barangay is
traversed by the national highway, stretching from Km. 103 to
Km. 105 , up to the boundary of San Remigio, and from the
boundary to Daan Bantayan, a distance of more than 3
kilometers. It was only in 1984 or 1985 when this portion of the
national highway was asphalted. Prior to that, the road was
maintained by filling up the potholes with crushed limestone or
anapog. These potholes started to appear between January and
June of 1977.However, as alleged by her in her affidavit (Exh. II1-d), these potholes were filled up only from January to June,
1978. (TSN., pp. 28-46, June 5, 1986).[34]
5. MARCELO CONEJOS, Barangay Captain of Tapilon,
Daan Bantayan, from 1972 to 1982, testified that his barangay is
traversed by the national highway, stretching from Km. 130 to
Km. 134, or a distance of 4 kilometers. In 1977, said portion of
the national highway was in bad condition and that nothing was
done to improve it until 1982, except for the time when the
potholes were filled up with crushed limestones. (TSN., pp. 4856, June 5, 1986).[35]
6. REMEDIOS FELICANO, Barangay Captain of Looc, San
Remigio, Cebu from 1977 to 1982, testified that her barangay is
traversed by the national highway, stretching form Km. 109 to
Km. 110. She described said portion of the national highway as
stoney. The only maintenance work undertaken to improve the
road was the filling up of potholes with crushed limestone which
camineros gathered from the roadside. (TSN., pp.57-67, June 5,
1986).[36]
7. ALBERTO BRANSUELA, a resident of Barangay San
Jose, Catmon, Cebu, from 1974 to 1978, testified that
barangay San Jose is traversed by the national highway (Km. 58),
covering a distance of kilometer more or less. He stated that

while this portion of the national highway was already asphalted

as of 1977, there were potholes which the camineros filled up
with anapog taken from the roadside. (TSN., pp. 69-80), June 5,
1986).[37]
8. CARIDAD PUNLA, Acting Barangay Captain of Barangay
Corazon, Catmon, Cebu, from 1977 to 1982, testified that the
Poblacion of Catmon is traversed by the national highway,
stretching from Km. 57 to Km. 58. In 1977, only more than of this
portion of the national highway was cemented while the
remaining portion was asphalted. While said portion of the
national highway already had cracks and potholes as of 1977,
the real problem was the uneven elevation of the surface of the
shoulder of the road. No general repair was undertaken by the
authorities to correct the uneven elevation, except for the work
done by the camineros who covered up the potholes. (TSN., pp.
81-89, June 5, 1986).[38]
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu,
from 1975 to 1982, testified that barangay Bao was traversed by
the national highway, stretching from Km. 59 to Km. 60 1/2. He
described said portion of the national highway as a gravel road
surfaced with anapog. In 1977, the said road already had
potholes which maintenance men filled up with anapog
beginning in March, 1977. The anapog was hauled in from Km.
64, the usual excavation place of anapog. It took only 3
truckloads of anapog to cover the entire length of the 1
kilometers traversing their barangay. (TSN., pp. 90-99, June 5,
1986).[39]
10. LEONARDO PINOTE, Barangay Captain of Barangay
Argawanon, San Remigio, Cebu, from 1972 to 1980, testified that
his barangay is traversed by the national highway covering a
distance of kilometers more or less. In 1977, this portion of the
national highway was a rough road with potholes. In the same
year, camineros worked on the road, using wheelbarrows,
shovels and rakes, pitching up the potholes with anapog. (TSN.,
pp. 29-35, June 6, 1986).[40]
11. PEDRO ORSAL, Barangay Captain of Poblacion, San
Remigio, Cebu, from January 1972 to 1980, testified that his
barangay is traversed by the national highway, from Km. 107 to
Km. 110, or a distance of three kilometers more or less. In 1977,
the road from Km. 107 to Km. 108 was a gravel road. It was
properly maintained by the highways people, and every time
potholes appeared on the road, they would be filled-up with
anapog. This material was dumped along the road by trucks of

the Bureau of Public Highways. On the other hand, the road

leading to the heart of the poblacion was asphalted, but with
potholes. In 1977, the potholes were filled up by camineros with
gravel delivered by dump trucks of the Bureau of Public
Highways. It was only in 1978 when the road was re-asphalted
and extended from the junction of the poblacion to the adjacent
barrio of Looc. x x x (TSN., pp.36-45, June 6, 1986).[41]
The inescapable conclusion from the aforementioned testimonies of the
barangay captains and residents of Cebu whose respective barangay are
traversed by the national highway is that there were no actual major repair
works undertaken on the national highway except the filling of potholes by
crushed limestone (anapog). Clearly, there were no deliveries of supplies and
materials for asphalting and repair of roads described in the tally sheets and
other supporting documents signed by petitioners.
While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan of
Tabuclan, Cebu, who testified that he saw the asphalting of the Tabuclan
Road from kilometers 18 to 19, said testimony is not conclusive on the actual
delivery of the supplies indicated in the tally sheets, as Tudlasan was not
present at the time of alleged delivery. Moreover, his testimony runs counter
to the testimonies of Barangay Captain Remedios Feliciano of Looc, San
Remigio, Cebu and Barangay Captain Pedro Orsal of Poblacion, San
Remigio,Cebu. Feliciano testified that she was Barangay Captain of Looc, San
Remigio, Cebu from 1977 to 1982; that her barangay is traversed by the
national highway, stretching from km. 109 to km. 110; and that the only work
undertaken to improve the road was the filling up of potholes with crushed
limestone which camineros gathered from the roadside. On the other hand,
Orsal testified that he was Barangay Captain of Poblacion, San Remigio, Cebu,
from January 1972 to 1980; that his barangay is traversed by the national
highway, from km. 107 to km. 110; that in 1977, the road from km. 107 to
km. 108 was a gravel road maintained by the highways people, and every
time potholes appeared on the road, they would be filled-up with anapog,
which was dumped along the road by the Bureau of Public Highways; and that
it was only in 1978 when the road was re-asphalted and extended from the
junction of the poblacion to the adjacent barrio of Looc.
Compared to the testimony of Vice-Mayor Tudlasan, the testimonies
of Barangay Captains Feliciano and Orsal are entitled to more weight and
credit, and are more credible considering the fact that they are residents of
the area where the road supposedly to be repaired is located plus the fact
that they saw only limestone, not asphalt, that was used in the repair of the

road in 1977. The testimonies of Feliciano and Orsal are further buttressed by
the findings and statements of government witnesses, namelyRuth Inting
Paredes, Supervising Commission on Audit (COA) Auditor assigned to Region
VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the main COA
office; Federico A. Malvar, Senior National Bureau of Investigation (NBI) Agent
of the Anti-Graft Section and member of the COA NBI team assigned to
investigate the anomalies; Rogelio C. Mamaril, Supervising NBI Agent of the
Anti-Fraud and Action Section; and Delia Comahig Preagido, Accountant III,
MPH, Region VIIto the effect that the general vouchers and LAAs that
corresponded to the aforementioned tally sheets signed by petitioner
Torrevillas were fake or falsified. Undeniably, the government witnesses have
no motive to testify falsely against petitioner Torrevillas and, hence, credible.
We conclude that there were no actual deliveries of supplies for asphalting of
road and repair on kilometers 108 and 109, which were the subjects of
Criminal Case Nos. 2855, 2856, 2858, and 2859.
Glaring is the finding of the SB that the Cebu First Highway Engineering
District, to which petitioners were assigned, had fake LAAs totaling to PhP
4,924,366.50, while the fake Cash Disbursement Ceilings issued amounted to
PhP 6,271,150.[42] The Cebu First Highway Engineering District had also issued
checks per unrecorded reports in the total sum of PhP 1,135,176.82.
[43]
Therefore, the total illegal disbursements in the Cebu First Highway
Engineering District alone were a staggering PhP 12,330,693.32 circa 1977.
Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets which
pertained to non-existent deliveries of road construction supplies and
materials totaling PhP 146,000, [44] including PhP 27,000 in Criminal Case No.
2914 where petitioner Torrevillas was among the co-accused. [45] These tally
sheets were attached as the supporting papers to fake general vouchers
which facilitated the release of check payments to suppliers.
These checks were allegedly paid to suppliers Juliana de los
Angeles (Criminal Case Nos. 2879, 2880, 2881, 2885, and 2914) and Ismael
Sabio, Jr. (Criminal Case No. 2918).[46]
On his part, petitioner Torrevillas voluntarily admitted to signing tally
sheets, reports of inspection, requisitions of supplies and equipment, and
other pertinent documents totaling an even greater amount of PhP
337,861.01,[47] including PhP 27,000 in Criminal Case No. 2914 where
petitioner Fernan, Jr. was among the co-accused. [48] These documents signed
by petitioner Torrevillas were likewise attached as supporting papers to fake

general vouchers which facilitated the release of check payments to

suppliers.
These checks were allegedly paid to suppliers Rufino V. Nuez (Criminal
Case Nos. 2855, 2856, 2858, and 2859), Juliana de los Angeles (Criminal Case
Nos. 2909, 2910, and 2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and
Manuel Mascardo (Criminal Case No. 2932).[49]
These general vouchers and checks could not be traced to genuine
LAAs. Ergo, there were no actual deliveries of supplies and materials for the
road repair and rehabilitation in Region VII, which were the subjects of the
criminal cases where petitioners were charged.
We find no reason to disturb the findings of the court a quo that all the
essential elements of the crime of estafa through falsification of public
documents were present.There is no question that petitioners, at the time of
the commission of the crime, were public officerscivil engineersassigned to
the MPH. Their signing of tally sheets and related documents pertaining to
the alleged deliveries of supplies for road repair and construction constitutes
intervention and/or taking advantage of their official positions, especially
considering that they had the duty to inspect the purported deliveries and
ascertain the veracity of the documents and the statements contained in
them.
The tally sheets bearing their signatures contained false recitals of
material facts which the petitioners had the duty to verify and confirm. These
tally sheets were attached as supporting documents to fake LAAs and
subsequently became the bases for the disbursement of public funds to the
damage and prejudice of the government. Indubitably, there exists not even
an iota of doubt as to petitioners guilt.
The essential elements of estafa through falsification of public
documents are present in the cases against petitioners, as follows:
1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that
supplies for road construction and maintenance were delivered by suppliers
allegedly in furtherance of alleged lawful projects when in fact said supplies
were not delivered and no actual asphalting or repair of road was
implemented. In doing so, petitioners:
1.1. Were public officers or employees at the time of the commission of
the offenses;

1.2. Took advantage of their official position as highway engineers; and

1.3. Made untruthful statements in several narrations of fact.
2. Damage: The government disbursed PhP 146,000 in the case of
Fernan, Jr. and PhP 337,861.01 in the case of Torrevillas, as payments to
various suppliers for the delivery of non-existent supplies.
By way of defense, petitioners posit that the tally sheets and other
documents could in fact be traced to genuine LAAs that were in the custody
of the NBI. Unfortunately, these genuine LAAs were not introduced in
evidence. It is an age-old axiom that s/he who alleges something must prove
it. Petitioners assertion that the documents they signed were all genuine and
duly covered by genuine LAAs was substantiated only by their own selfserving and uncorroborated testimonies. We hesitate to give much weight
and credit to their bare testimonies in the face of clear, convincing,
overwhelming, and hard evidence adduced by the State.
If the genuine LAAs were vital to their defense, and they firmly
believed that the documents were indeed in the custody of the NBI, then
petitioners could have easily procured the compulsory process to compel the
production of said documents. However, petitioners miserably failed to avail
of subpoena duces tecum which the court a quocould have readily
granted. The inability to produce such important and exculpatory pieces of
evidence proved disastrous to petitioners cause. Their conviction was indeed
supported by proof beyond reasonable doubt which was not overturned by
defense evidence.
Petitioners acted in conspiracy with one another
Petitioners vigorously claim error on the part of the lower court when it
made the finding that they were co-conspirators with the other parties
accused despite the dearth of evidence to amply demonstrate complicity.
We are not convinced by petitioners postulation.
Indeed, the burden of proving the allegation of conspiracy falls to the
shoulders of the prosecution. Considering, however, the difficulty in
establishing the existence of conspiracy, settled jurisprudence finds no need
to prove it by direct evidence. In People v. Pagalasan, the Court explicated
why direct proof of prior agreement is not necessary:

After all, secrecy and concealment are essential features of

a successful conspiracy. Conspiracies are clandestine in nature. It
may be inferred from the conduct of the accused before, during
and after the commission of the crime, showing that they had
acted with a common purpose and design. Conspiracy may be
implied if it is proved that two or more persons aimed their acts
towards the accomplishment of the same unlawful object, each
doing a part so that their combined acts, though apparently
independent of each other, were in fact, connected and
cooperative, indicating a closeness of personal association and a
concurrence of sentiment. To hold an accused guilty as a coprincipal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the
complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common design
and purpose.[50]

In Estrada v. Sandiganbayan, we categorized two (2) structures of

multiple conspiracies, namely: (1) the so-called wheel or circle conspiracy, in
which there is a single person or group (the hub) dealing individually with
two or more other persons or groups (the spokes); and (2) the chain
conspiracy, usually involving the distribution of narcotics or other
contraband, in which there is successive communication and cooperation in
much the same way as with legitimate business operations between
manufacturer and wholesaler, then wholesaler and retailer, and then retailer
and consumer.[51]
We find that the conspiracy in the instant cases resembles the wheel
conspiracy. The 36 disparate persons who constituted the massive
conspiracy to defraud the government were controlled by a single hub,
namely: Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant
III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), who
controlled the separate spokes of the conspiracy. Petitioners were among the
many spokes of the wheel.
We recall the painstaking efforts of the SB through Associate Justice
Cipriano A. Del Rosario, Chairperson of the Third Division, in elaborating the
intricate web of conspiracy among the accused, thus:
Mangubat enticed Preagido, Cruz and Sayson to join
him. All three agreed to help him carry out his plan. They
typed fake LAAs during Saturdays. Cruz and Sayson also took
charge of negotiating or selling fake LAAs to contractors at 26%

of the gross amount. Preagido manipulated the general ledger,

journal vouchers and general journal through negative entries to
conceal the illegal disbursements. In the initial report of COA
auditors Victoria C. Quejada and Ruth I. Paredes it was
discovered that the doubtful allotments and other anomalies
escaped notice due to the following manipulations:
The letter-advices covering such allotments (LAA)
were not signed by the Finance Officer nor (sic) recorded in
the books of accounts. Disbursements made on the basis
of these fake LAAs were charged to the unliquidated
obligations (Account 8-81-400), although the obligations
being paid were not among those certified to the
unliquidated obligations (Account 8-81-400) at the end of
the preceding year. To conceal the overcharges to
authorized allotments, account 8-81-400 (sic) and the
excess
of
checks
issued
over
authorized
cash
disbursements ceiling, adjustments were prepared monthly
through journal vouchers to take up the negative debit to
Account 8-81-400 and a negative credit to the Treasury
Checking Account for Agencies Account 8-70-790. These
journal vouchers in effect cancelled the previous entry to
record the disbursements made on the basis of fake LAAs.
Thus the affected accounts (Accounts 8-81-400 and 8-70790), as appearing in the trial balance, would not show the
irregularity. The checks, however, were actually issued.[52]
The four formed the nucleus of the nefarious
conspiracy. Other government employees, tempted by the
prospect of earning big money, allowed their names to be
used and signed spurious documents.
xxxx
3. Cebu First Highway Engineering District Anomalies
Focusing our attention now on the anomalies committed in
the Cebu First District Engineering District, hereinafter referred to
as the Cebu First HED for brevity, the Court finds that the same
pattern of fraud employed in the other highway engineering
districts in MPH Region VII was followed. The Cebu First HED
received from Region VII thirty-four Letters of Advice of Allotment
(LAAs) in the total sum of P4,734,336.50 and twenty-nine (29)
corresponding Sub-Advices of Cash Disbursement Ceiling
(SACDCs), amounting to P5,160,677.04 for the period January 1,
1977 to December 31, 1977. But apart from this, the Cebu First

HED appears to have also received for the same period another
set of eighty-four (84) LAAs amounting to P4,680,694.76 which
however, could not be traced to any Sub-Advice of Allotment
(SAA) OR MATCHED TO THE Advices of Cash Disbursement
Ceiling (ACDCs) received from the MPH and Regional Office. This
is highly irregular and not in consonance with accounting
procedures.
It was also made to appear that the payments were made
for alleged prior years obligations and chargeable to Account 81400,
obviously
because,
they
were
not
properly
funded.Furthermore, the list of projects in Region VII for 1977
showed that Cebu first HED completed rehabilitation and/or
improvement of roads and bridges in its districts from February
to May, 1977, with expenditures amounting to P613,812.00. On
the other hand, the expenditures for barangay roads in the same
district in 1977 amounted to P140,692.00, and these were all
completed within the period from November to December,
1977. These completed projects were properly funded by
legitimate LAAs and CDCs in the total amount of only
P754,504.00. However, an additional amount of P3,839,810.74,
was spent by the Cebu First HED for maintenance of roads and
bridges for the same year (1977) but the same could not be
traced to any authoritative document coming from the MPH.
The following payments for materials purchased for the
year 1977 were made to appear as payment for prior years
obligation and were paid out of fake LAAs:
Supplier
Rufino Nuez
J.
delos
Angeles
Iluminada
Vega
Florencio
Gacayan
Ismael
Sabio, Jr.
FBS
Marketing

No. of
Vouch
ers
29
21
11
10
6
3

Kind of Measure
Materia ment
ls
Item 310 4,640,275
mt
Item 108 22,290
cu.m.
Item 108 8,325
cu.m.
Item 108 7,800
cu.m.
Item 108 6,198
cu.m.
Lumber

Amount
P1,374,135
.00
433,300.00
191,500.00
156,000.00
123,960.00
70,610.00

Cebu Hollo
w Blocks
Bienvenido
Presillas
T.R.
Eustaquio
Ent.
Santrade
Mktg.
Pelagia
Gomez
M & M Ent.
Freent Ind.

2
4
1
1
1
1
1

Hollow
Blocks
Equip.
Rental
Office
Supplies

19,880.00

Johnson
Products
Item 108

8,392.90

29,580.00
7,461.90

2,000
cu.m.

Paints
Office
Supplies

40,000.00
49,736.20
590.20

Total

P2,505,14
7.00

The NBI also discovered that there were purchases of

materials in 1977 that were charged to current obligations but
paid out of spurious LAAs, to wit:
Supplier

No. of
Vouch
ers
Rufino Nuez 11

Kind of
Material
s
Item 310
Item 108

Juliana
delos
Angeles

16

Item 108
Item 111
Item 200

Iluminada
Vega
Florencio
Gacayan
Vicon Ent.

Item 108

Item 108

Steel
Frame
Item 108

Ismael
5
Sabio, Jr.
Jabcyl Mktg. 3

Measure
ment

Amount

162,549
m.t.
5,000
cu.m.
13,280
cu.m.
1,00 cu.m.
307 cu.m.
3,600
cu.m.
2,400.00
cu.m.

P529,475.0
0
P276,400.0
0
24,000.00
7,982.00
72,090.00
48,000.00
19,042.74

6,950
cu.m.

Bridge
Materials

139,000.00
128,764.80

Total

P1,339,66
3.74

Grand Total . P3,839,810.74

A total of 132 General Vouchers, emanating from fake LAAs
and ACDCs, were traced back to Rolando Mangubat, Regional
Accountant of Region VII and Adventor Fernandez, Regional
Highway Engineer, also of Region VII. Those LAAs and ACDCs
became the vehicles in the disbursement of funds amounting to
P3,839,810.74, through the vouchers purportedly issued for the
purchase and delivery of the aforementioned materials allegedly
used for the maintenance and repair of the national highways
within the Cebu First HED. Despite the enormous additional
expenditure of P3,839,810.74, the roads and bridges in the
district, as found out by the NBI, did not show any improvement
(Exhibit II). As testified to by several barangay captains, the road
maintenance consisted merely of spreading anapog or limestone
on potholes of the national Highway.
Obviously, the vouchers for payments of alleged
maintenance of roads and bridges in the additional amount of
P3,839,810.74 were prepared for no other purpose than to
siphon off the said amount from the government coffer into the
pockets of some officials and employees of Region VII and the
Cebu First HED, as well as the suppliers and contractors who
conspired and confederated with them.[53]
After a close re-examination of the records, the Court finds no reason
to disturb the finding of the anti-graft court that petitioners are coconspirators of the other accused, headed by Chief Accountant Rolando
Mangubat, who were similarly convicted in practically all the 119 counts of
estafa. Undisturbed is the rule that this Court is not a trier of facts and in the
absence of strong and compelling reasons or justifications, it will accord
finality to the findings of facts of the SB. The feeble defense of petitioners
that they were not aware of the ingenuous plan of the group of accused
Mangubat and the indispensable acts to defraud the government does not
merit any consideration. The State is not tasked to adduce direct proof of the
agreement by petitioners with the other accused, for such requirement, in
many cases, would border on near impossibility. The State needs to adduce
proof only when the accused committed acts that constitute a vital
connection to the chain of conspiracy or in furtherance of the objective of the
conspiracy. In the case at bench, the signing of the fake tally sheets and/or
delivery receipts, reports of inspection, and requests for supplies and
materials by petitioners on separate occasions is vital to the success of the

Mangubat Group in siphoning off government funds. Without such fabricated

documents, the general vouchers covering the supply of materials cannot be
properly accomplished and submitted to the disbursing officer for the
preparation of checks.
State witness Ruth Paredes, Supervising COA Auditor, elaborated on
the procedure regarding the award of the contract more specifically to the
payment of the contractor or supplier. Once the Request for Supplies and
Equipment is approved by the Regional Office, the Request for Obligation of
Allotment (ROA) or the request for funds is signed by the District Engineer
pursuant to the approved plans and budget and signed by the district
accountant as to availability of funds.
The district office will advertise the invitation to bid and award the
contract to the lowest bidder. The Purchase Order (PO) is prepared and
addressed to the winning bidder.Upon delivery of the supplies and materials,
the supplier bills the district office for payment. Consequently, the
requisitioning officer will prepare the general voucher which must be
accompanied by the following documents:
a.
b.
c.
d.
e.

The ROA;
The PO;
The abstract of Bid together with the Bid quotations;
The delivery receipts together with the tally sheets; and
The tax clearance and tax certificate of the supplier.

After the preparation and submission of the general voucher and the
supporting documents, the disbursing officer shall prepare and draw a check
based on said voucher.The check is countersigned by an officer of the district
office and/or the COA Regional Director based on the amount of the check.
Thus, it is clear that without the tally sheets and delivery receipts, the
general voucher cannot be prepared and completed. Without the general
voucher, the check for the payment of the supply cannot be made and
issued to the supplier. Without the check payment, the defraudation cannot
be committed and successfully consummated. Thus, petitioners acts in
signing the false tally sheets and/or delivery receipts are indispensable to the
consummation of the crime of estafa thru falsification of public
documents.Surely, there were ghost or false deliveries of supplies and
materials as convincingly shown by the testimonies of the barangay
captains, officials, and residents of the areas where the materials were

allegedly used. More importantly, if there were actual deliveries of materials

made, then there would be no need to fake the LAAs because the suppliers
will have to be paid the cost of said materials plus a reasonable profit. As a
result, there is nothing or not much to share with the more than 30 or so coconspirators, for the suppliers would not be too dim-witted to part with even
their cost in buying the materials they allegedly supplied. Moreover, the fake
delivery receipts and tally sheets signed by petitioners were linked to the
general vouchers upon which check payments were made to the suppliers
who were found guilty of participating in the fraud. With respect to petitioner
Fernan, Jr., he signed tally sheets on the ghost deliveries of Juliana de los
Angeles and Ismael Sabio, Jr. On the part of petitioner Torrevillas, he signed
false tally sheets and delivery receipts on supplies allegedly delivered by
Rufino V. Nuez, Juliana de los Angeles, Ismael Sabio, Jr., and Manuel
Mascardo. Lastly, the checks issued to these suppliers based on general
vouchers supported by the false tally sheets and general vouchers signed by
petitioners cannot be traced to any genuine LAAs, resulting in the
inescapable conclusion that these LAAs were unauthorized; hence, fake or
fabricated. These are undisputed tell-tale signs of the complicity by
petitioners with the Mangubat syndicate.
In People v. Mangubat, the court a quo elucidated the conspiracy in
the Cebu highway scam in a trenchant manner:
Where the acts of each of the accused constitute an
essential link in a chain and the desistance of even one of them
would prevent the chain from being completed, then no
conspiracy could result as its consummation would then be
impossible or aborted. But when each and everyone of the
accused in the instant cases performed their assigned tasks and
roles with martinet-like precision and accuracy, by individually
performing essential overt acts, so much so that the common
objective is attained, which is to secure the illegal release of
public funds under the guise of fake or simulated public
documents, then each and everyone of said accused are equally
liable as co-principals under the well-established and universallyaccepted principle that, once a conspiracy is directly or impliedly
proven, the act of one is the act of all and such liability exists
notwithstanding no-participation in every detail in the execution
of the offense.[54]

In sum, the required quantum of proof has been adduced by the State
on the conspiracy among the accused including petitioners. The conviction of
petitioners must perforce be sustained.
WHEREFORE, we DENY the petition and AFFIRM the December 4,
1997 Decision of the SB in the consolidated criminal cases subject of this
petition.
No costs.
SO ORDERED.
SHARICA MARI L. GO-TAN
Petitioner,

G.R. No. 168852

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

SPOUSES PERFECTO C. TAN

and JUANITA L. TAN,
Promulgated:
Respondents.*
September 30, 2008
x----------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Resolution[1] dated March 7, 2005 of the Regional Trial Court
(RTC), Branch 94,Quezon City in Civil Case No. Q-05-54536 and the RTC
Resolution[2] dated July 11, 2005 which denied petitioner's Verified Motion for
Reconsideration.
The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven)
were
married.[3] Out
of
this
union,
two
female
children
were
born, Kyra Danielle[4] and Kristen Denise.[5]On January 12, 2005, barely six years
into the marriage, petitioner filed a Petition with Prayer for the Issuance of a
Temporary Protective Order (TPO)[6] against Steven and her parents-in-law, Spouses
Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She alleged that
Steven, in conspiracy with respondents, were causing verbal, psychological and
economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5),
and (i)[7] of Republic Act (R.A.) No. 9262,[8] otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004.
On January 25, 2005, the RTC issued an Order/Notice[9] granting petitioner's prayer
for a TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the
Issuance of Permanent Protection Order Ad Cautelam and Comment on the
Petition,[10] contending that the RTC lacked jurisdiction over their persons since, as
parents-in-law of the petitioner, they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition [11] to respondents'
Motion to Dismiss arguing that respondents were covered by R.A. No. 9262 under a
liberal interpretation thereof aimed at promoting the protection and safety of
victims of violence.
On March 7, 2005, the RTC issued a Resolution[12] dismissing the case as to
respondents on the ground that, being the parents-in-law of the petitioner, they
were not included/covered as respondents under R.A. No. 9262 under the wellknown rule of law expressio unius est exclusio alterius.[13]
On March
16,
2005,
petitioner
filed
her
Verified
Motion
for
[14]
Reconsideration contending that the doctrine of necessary implication should be
applied in the broader interests of substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for
Reconsideration[15] arguing that petitioner's liberal construction unduly broadened
the provisions of R.A. No. 9262 since the relationship between the offender and the
alleged victim was an essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution[16] denying petitioner's

Verified Motion for Reconsideration. The RTC reasoned that to include respondents
under the coverage of R.A. No. 9262 would be a strained interpretation of the
provisions of the law.
Hence, the present petition on a pure question of law, to wit:
WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA,
PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION
FOR THE ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH
REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE ANTI-VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004.[17]
Petitioner contends that R.A. No. 9262 must be understood in the light of the
provisions of Section 47 of R.A. No. 9262 which explicitly provides for
the suppletory application of the Revised Penal Code (RPC) and, accordingly, the
provision on conspiracy under Article 8 of the RPC can be suppletorily applied to
R.A. No. 9262; that Steven and respondents had community of design and purpose
in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically; that respondents should be included
as indispensable or necessary parties for complete resolution of the case.
On the other hand, respondents submit that they are not covered by R.A. No. 9262
since Section 3 thereof explicitly provides that the offender should be related to the
victim only by marriage, a former marriage, or a dating or sexual relationship; that
allegations on the conspiracy of respondents require a factual determination which
cannot be done by this Court in a petition for review; that respondents cannot be
characterized as indispensable or necessary parties, since their presence in the
case is not only unnecessary but altogether illegal, considering the non-inclusion of
in-laws as offenders under Section 3 of R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as
any act or a series of acts committed by any person against a woman who is his
wife, former wife, or against a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result
in or is likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.

While the said provision provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not
preclude the application of the principle of conspiracy under the RPC.
Indeed,
Section
47
of
R.A.
No.
the suppletory application of the RPC, thus:

9262

expressly

provides

for

SEC. 47. Suppletory Application. - For purposes of this Act,

the Revised
Penal
Code and
other
applicable laws, shall
have suppletory application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions of this Code.
Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall
be supplementary to such laws, unless the latter should
specially provide the contrary. (Emphasis supplied)
Hence, legal principles developed from the Penal Code may be applied in a
supplementary capacity to crimes punished under special laws, such as R.A.
No. 9262, in which the special law is silent on a particular matter.
Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on
subsidiary penalty under Article 39 of the RPC to cases of violations of Act No. 3992,
otherwise known as the Revised Motor Vehicle Law, noting that the special law did
not contain any provision that the defendant could be sentenced with subsidiary
imprisonment in case of insolvency.
In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the
service of sentences provided in Article 70 of the RPC in favor of the accused who
was found guilty of multiple violations of R.A. No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, considering the lack of similar rules under the special
law.
In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of
the RPC to define the words principal, accomplices and accessories under R.A. No.
8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995,
because said words were not defined therein, although the special law referred to
the same terms in enumerating the persons liable for the crime of illegal
recruitment.

In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary

imprisonment under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22,
otherwise known as the BouncingChecks Law, noting the absence of an express
provision on subsidiary imprisonment in said special law.
Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle
of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary
provision therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC
may be applied suppletorily to R.A. No. 9262 because of the express provision of
Section 47 that the RPC shall be supplementary to said law. Thus, general
provisions of the RPC, which by their nature, are necessarily applicable, may be
applied suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once
conspiracy or action in concert to achieve a criminal design is shown, the act of one
is the act of all the conspirators, and the precise extent or modality of participation
of each of them becomes secondary, since all the conspirators are principals.[23]
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that
the acts of violence against women and their children may be committed by an
offender through another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The
crime of violence against women and their children is committed
through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or
through another, that alarms or causes substantial emotional or
psychological distress to the woman or her child. This shall include, but
not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private
places;
(2) Peering in the window or lingering outside the residence of the
woman or her child;
(3) Entering or remaining in the dwelling or on the property of the
woman or her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm

to animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis
supplied)
In addition, the protection order that may be issued for the purpose of
preventing further acts of violence against the woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be
issued under this Act shall include any, some or all of the
following reliefs:
(a) Prohibition of the respondent from threatening to commit or
committing, personally or through another, any of the acts
mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying,
telephoning, contacting or otherwise communicating with the
petitioner, directly or indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be liberally construed to
promote the protection and safety of victims of violence against
women and their children. (Emphasis supplied)
It bears mention that the intent of the statute is the law[24] and that this intent must
be effectuated by the courts. In the present case, the express language of R.A. No.
9262 reflects the intent of the legislature for liberal construction as will best ensure
the attainment of the object of the law according to its true intent, meaning and
spirit - the protection and safety of victims of violence against women and children.
Thus,
contrary
to
the RTC's pronouncement,
the
maxim "expressio unios est exclusio alterius finds no application here. It must be
remembered that this maxim is only an ancillary rule of statutory construction. It is
not of universal application. Neither is it conclusive. It should be applied only as a
means of discovering legislative intent which is not otherwise manifest and should
not be permitted to defeat the plainly indicated purpose of the legislature.[25]
The Court notes that petitioner unnecessarily argues at great length on the
attendance of circumstances evidencing the conspiracy or connivance of Steven
and respondents to cause verbal, psychological and economic abuses upon

her. However, conspiracy is an evidentiary matter which should be threshed out in

a full-blown trial on the merits and cannot be determined in the present petition
since this Court is not a trier of facts.[26] It is thus premature for petitioner to
argue evidentiary matters since this controversy is centered only on the
determination of whether respondents may be included in a petition under R.A. No.
9262. The presence or absence of conspiracy can be best passed upon after a trial
on the merits.
Considering the Court's ruling that the principle of conspiracy may be
applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether
respondents may be considered indispensable or necessary parties. To do so would
be an exercise in superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed Resolutions
dated March 7, 2005 and July 11, 2005 of the Regional Trial Court, Branch
94, Quezon City in Civil Case No. Q-05-54536 are hereby PARTLY REVERSED
and SET ASIDE insofar as the dismissal of the petition against respondents
is concerned.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
ABRAZALDO @ PEDING, accused-appellant.

vs.

FEDERICO

DECISION
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision[1] dated November 15, 1995 of the
Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 95-01052D, finding accused-appellant Federico Abrazaldo guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the supreme
penalty of death and to indemnify the heirs of the deceased Delfin Guban the
amount of P50,000.00 as indemnity and P27,000.00 as actual damages, plus
costs.
In the Information dated August 3, 1995 filed with the trial court,
accused-appellant was charged with the crime of murder committed as
follows:

That on or about July 15, 1995 in the evening at barangay Pogo, Municipality
of Mangaldan, province of Pangasinan, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused armed with a bolo, with
intent to kill, treachery and evident premeditation, did, then and there
wilfully, unlawfully and feloniously stabbed DELFIN GUBAN Y GUINTO
inflicting upon him a stab wound which caused his death to the damage and
prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659. [2]
Upon arraignment, accused-appellant entered a plea of not guilty.
Forthwith, trial on the merits ensued. The prosecution presented as its
witnesses Rosendo Fajardo, SPO1 Ramie Petrache, SP02 Roberto Fernandez,
Dr. Alberto Gonzales and Gregorio Guban. Accused-appellant and his sister,
Marites Abrazaldo, took the witness stand for the defense.
[3]

The facts of the case as presented by the prosecution witnesses are as

follows:
On July 15, 1995, at about 10:00 oclock in the evening, at Barangay Pogo,
Mangaldan, Pangasinan, accused-appellant, then intoxicated, [4] attempted to
hack his uncle, Bernabe Quinto, but instead, hit the post of the latters house.
[5]
The incident was reported to the barangay authorities, prompting Delfin
Guban, Rosendo Fajardo, Sr., Alejandro Loceste (all are members of the
barangay tanod), and Cesar Manaois to rush to the scene. Upon reaching the
place, Fajardo heard accused-appellant shouting at his uncle, I will kill
you! Thereafter, he saw accused-appellant coming out of Quintos house with
blood oozing from his forehead.[6] At that time, the place was well lighted by
a flourescent lamp. Guban tried to assist accused-appellant. However, for
unknown reason, accused-apellant and Guban shouted at each other and
grappled face to face. Accused-appellant pulled out his knife, stabbed Guban
at the abdomen[7] and ran away. When Fajardo got hold of Guban, the latter
said, I was stabbed by Feding Abrazaldo.[8] Fajardo, together with the other
barangay tanod, rushed Guban to the Gov. Teofilo Sison Memorial Hospital
where he was operated by Dr. Alberto Gonzales, a Medical Officer III. But
after a few hours, Guban died. Dr. Gonzales issued a Medico-Legal Certificate
stating that the cause of death was stab wound, epigastrium, massive
hemothorax right.[9]
Gregorio Guban, the victims father, testified that he was the one who
spent for his sons funeral expenses. For the burial, he spent P10,000.00;

[10]

for
the
10-day
funeral
wake,P10,000.00;[11] for
the
9th day
novena, P3,000.00;[12] and for the hospitalization, P4,000.00,[13] or a total
of P27,000.00.
On July 16, 1995, Fajardo learned that the knife used by accusedappellant in stabbing Guban was in Salay, Pangasinan. Together with SPO2
Roberto Fernandez, Fajardo went to the house of Francisca Velasquez,
accused-appellants aunt, and recovered the knife. [14]
Invoking self-defense, accused-appellant presented a different
version. On July 15, 1995 at about 10:00 in the evening, he was making fans
inside his house at Barangay Pogo, Mangaldan, Pangasinan. [15] His wife Lydia
and children Mary Jane, Melvin and Christelle were with him. Suddenly, Delfin
Guban, who was then drunk, went to his house and shouted at him,
saying, Get out Feding I will kill you![16] When accused-appellant went out,
Guban hit him with an iron pipe. Accused-appellant ran towards his house
and got his two children. Guban, now armed with a knife, followed him and
they grappled for its possession. In the course thereof, both fell down. [17] It
was then that the knife held by Guban accidentally hit him. Accusedappellant did not know which part of Gubans body was hit. Thereafter, he got
the knife in order to surrender it to the police.[18]
Marites Abrazaldo testified that accused-appellant is his brother. [19] On
July 15, 1992, at about 6:00 in the evening, accused-appellant, Guban and
Juan Quinto were engaged in a drinking spree. [20] At about 10:00 oclock in
that evening, accused-appellant caused trouble at the house of his uncle,
Bernabe Quinto.[21] He attempted to hack his uncle, but instead hit the post
of the latters house.[22] While running away from his uncles place, he bumped
an artesian well, causing a wound on his forehead. [23] Afterwards, accusedappellant killed Guban.[24]
On November 15, 1995, the trial court rendered a Decision, the decretal
portion of which reads:
WHEREFORE, premises considered, the Court finds accused Federico
Abrazaldo @ Peding guilty beyond reasonable doubt of the crime of Murder
under Article 248 of the Revised Penal Code, as amended by Republic 7659,
and in view of the presence of the aggravating circumstances that the crime
was committed while the public authorities were engaged in the discharge of
their duties and that the crime was committed at nighttime, which
aggravating circumstances are not offset by any mitigating circumstance,

accused Federico Abrazaldo is hereby sentenced to suffer the penalty of

Death.
Accused Federico Abrazaldo is ordered to pay an indemnity of P50,000.00 to
the heirs of the deceased Delfin Guban. Accused is also ordered to pay the
heirs of the deceased Delfin Guban the total sum ofP27,000.00 as actual
expenses, plus costs.
SO ORDERED.
In appreciating treachery and the aggravating circumstances under
paragraphs (5) and (6) of Article 14,[25] Revised Penal Code, the trial court
held:
We now come to the issue of whether or not evident premeditation was
present. The prosecutions evidence is wanting on this point. However,
there is no question that there was treachery as the accused
embraced Delfin Guban and suddenly stabbed him with a knife. The
victim was not in a position to defend himself at the time of the
attack. The deceased was stabbed without any warning. He was
given no chance to defend himself. Treachery, therefore, qualifies
the killing of the victim and raises it to the category of murder.
The prosecution has established thru the testimony of Gregorio Guban that
at the time of the incident on July 15, 1995, the members of the barangay
tanod, namely: Rosendo Fajardo, Sr., Delfin Guban and Alfredo Laceste were
performing their duties as members of the barangay tanod. (See p. 6 tsn
September 18, 1995). This is an aggravating circumstance under
paragraph 5, Article 14 of the Revised Penal Code. The members of
the barangay tanod who are public authorities were engaged in the
discharge of their duties at the time of the stabbing
incident. Besides, the incident was committed during nighttime, that was
10:00 in the evening. Accused took advantage of the darkness of the night
for the successful consummation of his plan to kill Delfin Guban.
Accused-appellant, in his Appellants Brief, ascribes to the trial court the
following errors:
I

THE HONORABLE TRIAL COURT ERRED IN NOT APPRECIATING THE CLAIM OF

SELF-DEFENSE BY THE ACCUSED TAKING INTO CONSIDERATION THE
CIRCUMSTANCE OF THE CASE.
II
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE RECOVERY OF
THE ALLEGED WEAPON USED IN STABBING VICTIM AT THE HOUSE OF THE
AUNT OF ACCUSED BOLSTERED THE CASE AGAINST HIM DESPITE LACK OF
SUFFICIENT EVIDENCE TO PROVE ITS VERACITY.
III
THE HONORABLE TRIAL COURT ERRED IN APPRECIATING THE TESTIMONY
EXTRACTED BY THE PROSECUTION FROM DEFENSE WITNESS MARITESS
ABRAZALDO WHICH HAD NO SUFFICIENT BASIS AT ALL.
IV
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT TREACHERY
ATTENDED THE STABBING OF THE VICTIM WITHOUT SUFFICIENT BASIS TO
PROVE THE SAME.
V
THE HONORABLE TRIAL COURT ERRED IN ASSUMING THAT ACCUSEDAPPELLANT TOOK ADVANTAGE OF NIGHTTIME IN CONSUMING THE ACT.
VI
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE CHARGE
AGAINST ACCUSED-APPELLANT IS AGGRAVATED BY THE FACT THAT THE
VICTIM WAS IN THE PERFORMANCE OF HIS DUTY.
The Solicitor General, in the Appellees Brief, asserts that in pleading selfdefense, accused-appellant admitted he killed the victim and, therefore, he
must rely on the strength of his own evidence and not on the weakness of
that of the prosecution. Moreover, accused-appellants version of the incident
is completely contradicted by the testimony of his sister. Also, the
aggravating circumstance, under par. (5) of Article 14, Revised Penal Code,
was clearly established because during the incident, Guban, as the Assistant

Chief Tanod, was on duty and engaged in the maintenance of peace and
order.
The Solicitor General though agrees with accused-appellant that there
was no treachery. Evidence shows that he and Guban shouted at each other
and struggled face to face before the stabbing incident. Thus, the assault
was not sudden. Likewise, the Solicitor General is convinced that accusedappellant did not purposely and deliberately seek nighttime to perpetrate the
commission of the crime.
Consistent is the jurisprudence that where self-defense is invoked, it is
incumbent upon the accused to prove by clear and convincing evidence
that (1) he is not the unlawful aggressor;(2) there was lack of sufficient
provocation on his part; and (3) he employed reasonable means to prevent
and repel an aggression. On appeal, the burden becomes even more difficult
as the accused must show that the court below committed reversible error in
appreciating the evidence.[26]
Accused-appellant miserably failed to discharge the burden. To show that
he was not the unlawful aggressor, he testified that it was Guban who went
to his house, threatened to kill him, [27] hit him with an iron pipe,
[28]
and attacked him with a knife.[29] We quote accused-appellants testimony,
thus:
ATTY. CAMPOS:
xxxxxx
Q You said a while ago that on July 15, 1995 at about 10:00 in the
evening you were in your house engaging in fan making, do you
know of any unusual incident that happened during that time?
A Delfin Guban came to my house and he was under the
influence of liquor and he shouted at me, sir.
Q And what did Delfin Guban shout at you?
A He said, Get out Feding I will kill you.
Q After this Delfin Guban shouted at you, what happened next?

A When I went out of the house, I was already there infront of the
house then he hit me, sir.
Q You said Delfin Guban hit you, what instrument did he use
in hitting you?
A He hit me with a pipe , sir.
xxxxxx
Q After Delfin Guban hit you with that pipe, what happened next?
A I ran towards my house inside, then got my two children while
Delfin Guban followed me inside my house, sir.
Q When Delfin Guban followed you inside your house, what happened
again?
A He was holding a knife and we grappled and during that time both
of us fell down, sir.
Q When you grappled with Delfin Guban, who was holding a
knife, what again happened?
A We grappled for the possession of the knife then we fell
down and the knife he was then holding pointed towards
him and hit him. x x x.[30] (Emphasis supplied)
The foregoing testimony bears not only the vice of falsity but also
isolation. It is uncorroborated and even opposed by Marites, accusedappellants own sister and lone witness. Contrary to his testimony that Guban
hit him on his forehead with a pipe, Marites declared that accused-appellant
sustained the wound on his forehead when he accidentally bumped an
artesian well. Instead of fortifying her brothers defense, she virtually affirmed
the prosecutions story by testifying that he created trouble in their
compound, attempted to kill his uncle Bernabe Quinto and killed Guban. [31]
Ingrained in our jurisprudence is the doctrine that the plea of self-defense
cannot be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but in itself is extremely doubtful. [32] In the
present case, accused-appellants tendency to invoke a melange of defenses

renders his testimony dubious. While he admitted the commission of the

crime in order to preserve his own life, he maintained that Guban
accidentally stabbed himself. This shows ambivalence. Accident presupposes
lack of intention to stab the victim, while self-defense presumes
voluntariness, induced only by necessity.[33] Indeed, if there is truth to either
of his claim, his natural course of action was to assist the victim, or at the
very least, report the incident to the authorities. Certainly, the justifying
circumstance of self-defense[34] or the exempting circumstance of accident
cannot be appreciated considering accused-appellants flight from the crime
scene and his failure to inform the authorities of the incident. Furthermore,
that he did not surrender the knife to the authorities is inconsistent with a
clean conscience and, instead, indicates his culpability of the crime charged.
[35]

In a last-ditch effort to exculpate himself, accused-appellant assails

Fajardos testimony as tainted with inconsistencies and is contrary to the
normal course. Accused-appellant cannot invoke these alleged weaknesses
in view of the principle that one who pleads self-defense must rely on the
strength of his own evidence and not on the weakness of that of the
prosecution.Even if the prosecutions evidence is weak, it is still credible
considering accused-appellants admission that he killed the victim. It bears
emphasis that Fajardos testimony clearly points to him as the culprit. Not
only did he pull out his knife, stabbed Guban [36] and ran away.[37] Fajardo also
reiterated what Guban uttered to him, i.e., I was stabbed by Feding
Abrazaldo.[38]
As Guban had succumbed to death and his opportunity to divulge the
truth on his demise had been lost, we cannot but cast a quizzical glance on
accused-appellants uncorroborated testimony. More so, when such testimony
was contradicted by his own witness who happened to be his sister. Standing
alone against the testimonies of the prosecution witnesses, accusedappellants own account of the killing must necessarily fail. We hold that his
guilt has been established to a degree of moral certainty. The trial court did
not err in relying on the testimony of Fajardo, an eyewitness. Time and again,
we have said that we will not interfere with the judgment of the trial court in
determining the credibility of witnesses unless there appears on record some
facts or circumstances of weight and influence which have been overlooked
or the significance of which has been misinterpreted. This is so because the
trial court has the advantage of observing the witnesses through the
different indicators of truthfulness or falsehood.[39]

However, we find that the trial court erred in concluding that treachery
attended the commission of the crime. There is treachery when the offender
commits any of the crimes against persons employing means, methods or
forms in the execution thereof, which tend directly and specially to insure its
execution, without risk to himself arising from defense which the offended
party might make. Treachery cannot be presumed, it must be proved by clear
and convincing evidence or as conclusively as the killing itself. Fajardo
testified that accused-appellant and Guban were grappling with each other
and that prior to the stabbing, they were shouting at each other. In this
scenario, it cannot be said that Guban was unprepared to put up a defense,
such as hitting accused-appellant, or that the latters assault was sudden. We
quote in verbatim the testimony of Fajardo, thus:
ATTY. CAMPOS:
Q They were not then fighting?
A They were grappling with each other and then he stabbed
Delfin Guban.
xxxxxx
Q In fact, they were shouting each other?
A Yes, sir.
Q What were they shouting against another?
A I could no longer understand because it was already night.
Q But they were shouting loudly, am I correct?
A Yes and there were many people.[40] (Emphasis supplied)
The trial court likewise erred in appreciating the aggravating
circumstance of nocturnity or nighttime. For nocturnity to be properly
appreciated, it must be shown that it facilitated the commission of the crime
and that it was purposely sought for by the offender. By and itself, nighttime
is not an aggravating circumstance.[41] In the instant case, no sufficient
evidence was offered to prove that accused-appellant deliberately sought the
cover of darkness to accomplish his criminal design. In fact, Fajardo testified

that there was a fluorescent lamp sufficiently illuminating the scene of the
crime.[42]
Neither can we sustain the trial courts finding that the aggravating
circumstance under paragraph (5) of Article 14, Revised Penal Code, i.e., that
the crime was committed in a place where public authorities were engaged
in the discharge of their duties, is present. It must be pointed out that this
aggravating circumstance is based on the greater perversity of the offender,
as shown by the place of the commission of the crime, which must be
respected.[43] In this case, the crime was committed at the compound of the
accused-appellant where no public function was being held. The arrival of the
barangay authorities was precisely due to the trouble that had commenced
prior to the stabbing incident. Clearly, the said aggravating circumstance
cannot be considered. Moreover, under the present Rules,[44] aggravating
circumstances
must
be
alleged,
otherwise,
they
cannot
be
appreciated. Being favorable to the accused, this new procedure may be
given retroactive effect.[45] Except treachery, the other aggravating
circumstances mentioned have not been alleged in the Information.
In the absence of any circumstance that would qualify the crime at bar to
murder, accused-appellant can only be held liable for homicide defined and
penalized under Article 249 of the Revised Penal Code. The prescribed
penalty is reclusion temporal. Considering that there was neither mitigating
nor aggravating circumstance that attended the commission of the crime,
the penalty has to be imposed in its medium period, ranging from 14 years,
8 months and 1 day to 17 years and 4 months. Applying the provisions of the
Indeterminate Sentence Law, he should be sentenced to an indeterminate
penalty, the minimum of which is within the range of prision mayor, or 6
years and 1 day to 12 years. The maximum thereof is within the range
ofreclusion temporal in its medium period, which is 14 years, 8 months and 1
day to 17 years and 4 months. [46]
On the trial courts award of actual damages in the amount of P27,000.00,
we find the same to be unsubstantiated. To be entitled to such damages, it is
necessary to prove the actual amount of loss with a reasonable degree of
certainty, premised upon competent proof and on the best evidence
obtainable to the injured party.[47] In the case at bar, the prosecution failed to
present any receipt to prove the claim for expenses incurred. [48] Gregorio
Guban, the father of the victim, who shouldered the expenses for the wake
and burial failed to submit receipts to show the amount of such expenses.

[49]

However, as the heirs of Guban did actually incur funeral expenses, we

are justified in awarding P25,000.00, not for purposes of indemnification, but
by way of temperate damages.[50]
Thus, we now hold that where the amount of the actual damages cannot
be determined because of the absence of receipts to prove the same, but it
is shown that the heirs are entitled thereto, temperate damages may be
awarded. Such temperate damages, taking into account the current
jurisprudence fixing the indemnity for death at P 50,000.00, should be onehalf thereof, or P25,000.00. This makes temperate damages equal to the
award of exemplary damages, which is likewise fixed at P25,000.00 in cases
where its award is justified.
WHEREFORE, the assailed judgment in Criminal Case No. 95-01052-D is
AFFIRMED with MODIFICATION. Accused-appellant Federico Abrazaldo is
declared guilty beyond reasonable doubt of homicide defined and penalized
under Article 249 of the Revised Penal Code and is sentenced to suffer an
indeterminate penalty of six (6) years and 1 day of prision mayor, as
minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal in its medium period, as maximum. He is ordered to
pay the heirs of the late Delfin Guban P50,000.00 as indemnity
and P25,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
G.R. No. 189405

November 19, 2014

SHERWIN
DELA
CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in
behalf
of
his
deceased
brother,
JEFFREY
WERNHER
L.
GONZALES, Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court,
seeking to annul and set aside the May 7, 2009 Decision 1 of the Court of
Appeals, in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty

beyond reasonable doubt of the crime of Homicide, and its August 19, 2009
Resolution2 denying his motion for reconsideration.
Petitioner was charged with the crime of Homicide in an Information 3 dated
March 2, 2005, which alleged:
That on or about the 1st day of January 2005, in the City of Makati,
Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, with intent to kill and with the use of an unlicensed
firearm, did then and there wilfully, unlawfully and feloniously attack, assault
and shoot one JEFFREY WERNHER GONZALES Y LIM on the head, thereby
inflicting upon the latter serious and moral gunshot wound which directly
caused his death.
CONTRARY TO LAW.4
According to the prosecution, on January 1, 2005, at around 2:30 in the
afternoon, petitioner went to the office of Sykes Asia Inc. located at the 25th
Floor of Robinsons Summit Center,Ayala Avenue, Makati City. When
petitioner was already inside the building, he went to the work station of the
deceased victim, Jeffrey Wernher L. Gonzales (Jeffrey), who, by the
configuration of the eye witness Antonette Managbanags sketch, was seated
fronting his computer terminal, with his back towards the aisle. As petitioner
approached Jeffrey from the back, petitioner was already holding a gun
pointed at the back of Jeffreys head. At the last second, Jeffrey managed to
deflect the hand of petitioner holding the gun, and a short struggle for the
possession of the gun ensued thereafter. Petitioner won the struggle and
remained in possession of the said gun. Petitioner then pointed the gun at
Jeffreys face, pulled the trigger four (4) times, the fourth shot finally
discharging the bullet that hit Jeffrey in the forehead, eventually killing him.
Finally, after shooting Jeffrey, petitioner fled the office.
The defense recounted a different version of the facts.
Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon,
more or less, petitioner, together with his children, went to Sykes Asia, the
workplace of his wife, Darlene Dela Cruz (Darlene), located at the 25th Floor
of Robinsons Summit Building in Makati City, to fetch the latter so that their
family could spend time and celebrate together the New Years Day. Before
entering the Robinsons Summit Building, petitioner underwent the regular
security check-up/procedures. He was frisked by the guards-on-duty manning
the main entrance of said building and no firearm was found in his
possession. He registered his name at the security logbook and surrendered
a valid I.D.

Upon reaching the 25th Floor of the same building, a security guard manning
the entrance once again frisked petitioner and, likewise, found no gun in his
possession; hence, he was allowed to enter the premises of Sykes Asia. The
security guard also pointed to him the direction towards his wifes table.
However, as Darlene was then not on her table, petitioner approached a
certain man and asked the latter as to the possible whereabouts of Darlene.
The person whom petitioner had talked towas the deceased-victim, Jeffrey.
After casually introducing himself as the husband of Darlene, Jeffrey curtly
told him, "Bakit mo hinahanap si Darlene?"to which he answered,
"Nagpapasundo kasi sa akin."The response given by Jeffrey shocked and
appalled petitioner: "Ayaw na nga ng asawa mo sayo sinusundo mo pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from
Jeffrey who he was. But Jeffrey suddenly cursed petitioner. Then, Jeffrey
suddenly picked up something in his chair which happened to be a gun and
pointed the same at petitioners face followed by a clicking sound. The gun,
however, did not fire.
Seeing imminent danger to his life,petitioner grappled with Jeffrey for the
possession of the gun.While grappling, the gunclicked for two (2) to three (3)
more times. Again, the gun did not fire.
Petitioner was able to wrest away the gun from Jeffrey and tried to run away
to avoid any further confrontation with the latter.However, Jeffrey
immediately blocked petitioners path and shouted, "Guard! Guard!"
Immediately then, Jeffrey took hold ofa big fire extinguisher, aimed and was
about to smash the same on petitioners head.
Acting instinctively, petitioner parried the attack while still holding the gun.
While in the act of parrying, the gun accidentally fired due to the reasonable
force and contact that his parrying hand had made with the fire extinguisher
and the single bullet discharged hit the forehead of Jeffrey, which caused the
latter to fall on the floor and die.
Petitioner left the gun and went out ofthe premises of Sykes Asia and
proceeded towards the elevator. On his way to the elevator, he heard
Darlene shout, "Sherwin anong nangyari?", but he was not able to answer.
After said incident, Darlene abandoned petitioner and brought with her their
two (2) young children. Petitioner later learned that Darlene and Jeffrey had
an illicit relationship when he received a copy of the blog of Darlene, dated
January 30, 2005, sent by his friend.
During his arraignment, on August 22, 2005, petitioner, with the assistance
of counsel, pleaded "Not Guilty" to the charge. Thereafter, pretrial

conference was conducted on even date and trial on the merits ensued
thereafter.
During the trial of the case, the prosecution presented the oral testimonies of
Marie Antonette Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez)
and Carlos Alberto Lim Gonzales (Gonzales), respectively. The prosecution
likewise formally offered several pieces of documentary evidence to support
its claim.
For its part, the defense presented aswitnesses, petitioner himself; his
brother, Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena
(Elbanvuena) and Managbanag, who was recalled to the witness stand as
witness for the defense.
On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch
147, rendered a Decision5 finding petitioner guilty beyond reasonable doubt
of the crime of Homicide, as defined and penalized under Article 249 of the
Revised Penal Code (RPC), the fallo thereof reads:
WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela
Cruz y Gloria Guilty beyond reasonable doubt of the crime of Homicide as
defined and penalized under Art. 249 of the Revised Penal Code, and
sentencing him to suffer the indeterminate penalty of Eight (8) years and
One (1) day of prision mayor medium as Minimum to Fourteen (14) years
eight (8) months and one (1) day of reclusion temporal medium as
Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y Lim in the
amount of P50,000.00 plus moral damages in the amount of P1 Million, and
to pay the costs.
SO ORDERED.6
On March 28, 2007, petitioner filed a Notice of Appeal, while private
respondent, through the private prosecutor, filed a Notice of Appeal on April
11, 2007 insofar as the sentence rendered against petitioner is concerned
and the civil damages awarded.
After the denial of their motion for reconsideration, petitioner elevated the
case to the Court of Appeals (CA). However, the latter denied their appeal
and affirmed the RTC decision with modification on the civil liability of
petitioner. The decretal portion of the Decision 7 reads: WHEREFORE, we
hereby AFFIRM the Decision of the Regional Trial Court of Makati, Branch 147
dated 26 February 2007 finding accused-appellant Sherwin Dela Cruz y
Gloria GUILTY beyond reasonable doubt of the crime ofHomicide with the
following MODIFICATIONS:

(1) to pay the heirs of the victim the amount of P50,000.00 as civil
indemnity;
(2) the amount of P50,000.00 as moral damages;
(3) the amount of P25,000.00 as temperate damages;
(4) the amount of P3,022,641.71 as damages for loss of earning
capacity.
(5) to pay the costs of the litigation.
SO ORDERED.8
Petitioner's motion for reconsideration was denied. Hence, the present
petition.
Raised are the following issues for resolution:
1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE
OF SELF-DEFENSE, AS PROVIDED FOR BY LAW AND SETTLED
JURISPRUDENCE, ARE PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET
WAS DISCHARGED THEREFROM WAS MERELY ACCIDENTAL WHICH
OCCURRED DURING THE TIME THAT THE PETITIONER-APPELLANT WAS
STILL IN THE ACT OF DEFENDING HIMSELF FROM THE CONTINUOUS
UNLAWFUL AGGRESSION OF THE DECEASED VICTIM.
3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE
ESSENTIAL ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE.
4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELFDEFENSE IS APPLICABLE IN THIS CASE.
5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR
THE DEATH OF THE VICTIM ARISING FROM THE ACCIDENT THAT
TRANSPIRED.9
There is no question that petitioner authored the death of the deceasedvictim, Jeffrey. What is leftfor determination by this Court is whether the
elements of self-defenseexist to exculpate petitioner from the criminal
liability for Homicide.
The essential requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the means

employed to prevent or repel such aggression; and (3) lackof sufficient

provocation on the part of the person resorting to self-defense. 10 In other
words, there must have been an unlawful and unprovoked attack that
endangered the life of the accused, who was then forced to inflict severe
wounds upon the assailant by employing reasonable means to resist the
attack.11
Considering that self-defense totally exonerates the accused from any
criminal liability, it is well settled thatwhen he invokes the same, it becomes
incumbent upon him to prove by clear and convincing evidence that he
indeed acted in defense of himself.12 The burden of proving that the killing
was justified and that he incurred no criminal liability therefor shifts upon
him.13 As such, he must rely on the strength of his own evidence and not on
the weakness of the prosecution for, even if the prosecution evidence is
weak, it cannot be disbelieved after the accused himself has admitted the
killing.14
Measured against this criteria, wefind that petitioner's defense is sorely
wanting. Hence, his petition must be denied.
First. The evidence on record does not support petitioner's contention that
unlawful aggression was employed by the deceased-victim, Jeffrey, against
him.
Unlawful aggression is the most essential element of self-defense. It
presupposes actual, sudden, unexpected or imminent danger not merely
threatening and intimidating action.15 There is aggression, only when the one
attacked faces real and immediate threat to his life. 16 The peril sought to be
avoided must be imminent and actual, not merely speculative. 17 In the case
at bar, other than petitioners testimony, the defense did not adduce
evidence to show that Jeffrey condescendingly responded to petitioners
questions or initiated the confrontation before the shooting incident; that
Jeffrey pulled a gun from his chair and tried to shoot petitioner but failed
an assault which may have caused petitioner to fear for his life.
Even assuming arguendothat the gun originated from Jeffrey and an
altercation transpired, and therefore, danger may have in fact existed, the
imminence of that danger had already ceased the moment petitioner
disarmed Jeffrey by wresting the gun from the latter. After petitioner had
successfully seized it, there was no longer any unlawful aggression to speak
of that would have necessitated the need to kill Jeffrey. As aptly observed by
the RTC, petitioner had every opportunity to run away from the scene and
seek help but refused to do so, thus:
In this case, accused and the victim grappled for possession of the
gun.1avvphi1 Accused admitted that he wrested the gun from the victim.

From that point in time until the victim shouted "guard, guard", then took the
fire extinguisher, there was no unlawful aggression coming from the victim.
Accused had the opportunity to run away. Therefore, even assuming that the
aggression with use of the gun initially came from the victim, the fact
remains that it ceased when the gun was wrested away by the accused from
the victim. It is settled that when unlawful aggression ceases, the defender
no longer has any right to kill or wound the former aggressor, otherwise,
retaliation and not self-defense is committed (Peo Vs. Tagana, 424 SCRA
620). A person making a defense has no more right to attack an aggressor
when the unlawful aggression has ceased (PeoVs. Pateo, 430 SCRA 609).
Accused alleged that the victimwas about to smash the fire extinguisher on
his (accuseds) headbut he parried it with his hand holding the gun. This is
doubtful as nothing in the records is or would be corroborative of it.In
contrast, the two (2) Prosecution witnesses whose credibility was not
impeached, both gave the impression that the victim got the fire
extinguisher to shieldhimself from the accused who was then already in
possession of the gun.18
Thus, when an unlawful aggression that has begun no longer exists, the one
who resorts to self-defense has no right to kill or even wound the former
aggressor.19 To be sure, when the present victim no longer persisted in his
purpose or action to the extent that the object of his attack was no longer in
peril, there was no more unlawful aggression that would warrant legal selfdefense on the part of the offender.20 Undoubtedly, petitioner went beyond
the call of self-preservation when he proceeded to inflict excessive, atrocious
and fatal injuries on Jeffrey, even when the allegedly unlawful aggression had
already ceased.
More, a review of the testimony of the prosecution witness, Pelaez, will show
that if there was unlawful aggression in the instant case, the same rather
emanated from petitioner, thus: DIRECT EXAMINATION
Atty. Mariano:
Q: Can you relate to the Court, Ms. Witness, how did this incident happen?
A: We were still at work, we were expecting calls but there were no calls at
the moment and I was standing at my work station and then Sherwin
approached Jeff and he pointed a gun at the back of the head of Jeff.
Q: And then what happened?
A: And then Jeff parried the gun and they started struggling for the
possession of the gun.

Q: How far were you from this struggle when you witnessed it?
A: Probably 10 to 12 feet.
Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey
warded off the gun, they started to struggle, what happened after that, if
any?
A: After they struggled, the gun clicked three times and then after that Jeff
tried to get hold of the fire extinguisher and the fourth shot went off and
then Jeffrey fell down.
Q: And who was holding the gun?
A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSSEXAMINATION: Atty. Agoot:
Q: So you did not see when Sherwin approached Jeffrey because he came
from the other side? Atty. Mariano:
Objection, your Honor, witness already answered that.
Atty. Agoot:
I am on cross examination, your Honor.
COURT
You didnt not see when he approached Jeffrey? A: No, as I said, I saw him
point the gun at the back of Jeff and he did not come from my side so that
means
COURT
No, the question is, You did not actually see Sherwin approached Jeffrey?
A: I saw him already at the back of Jeffrey.
Atty. Agoot
He was already at the back of Jeffrey when you saw him?
A: Yes, Sir.
(TSN, Oct. 17, 2005, pp. 26-27)21

Clearly, petitioner's allegation that when he approached Jeffrey, the latter

pulled a gun from his chair and tried to shoot him, is not corroborated by
separate competent evidence. Pitted against the testimony of prosecution
witnesses, Managbanag and Pelaez, it pales incomparison and loses
probative value. We have, on more thanone occasion, ruled that the plea of
self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but also extremely
doubtful in itself.22
In addition, other than petitioners testimony, there is dearth of evidence
showing that the alleged unlawful aggression on the part of Jeffrey continued
when he blocked the path of petitioner while the latter tried to run away to
avoid further confrontation with Jeffrey. We also agree with the findings of the
RTC that there was no proof evincing that Jeffrey aimed and intended to
smash the big fire extinguisher on petitioners head. Alternatively, the
prosecution witnesses maintained an impression that Jeffrey used the same
to shield himself from petitioner who was then in possession of the gun, a
deadly weapon. An excerpt of the testimony of Managbanag bares just that,
to wit:
Atty. Agoot
Q: And then after pulling the fire extinguisher from the wall Jeffrey again
faced the person who was holding the gun already?
Witness:
A: He was holding the fire extinguisher like this.
COURT
For the record.
Atty. Mariano:
Witness demonstrating how the victim Jeffrey Gonzales was holding the fire
extinguisher upright with his right hand above the fire extinguisher and his
left hand below the fire extinguisher.
Witness:
The left hand would support the weight basically.
Atty. Agoot

Q: And then he used that fire extinguisher to protect himself from the
slapping of that person who was in possession of the gun?
Witness
A: Yes, sir.
Atty. Agoot
Q: And then after that there was again a grappling?
Witness
A: No more grappling for possession. Because Jeffrey was still holding the fire
extinguisher at thattime. And then he fell holding on to the fire extinguisher.
Atty. Agoot
Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero
hindi pumutok" Do you affirmand confirm this statement?
Witness
A: Yes, sir. They were pushing each other. The other person was trying to
point the gun at Jeffrey and Jeffrey was trying to cover himself with the fire
extinguisher so nagkakatulakan sila at the same time.
Atty. Agoot
Q: You said that the gun clicked, how many times did the gun click without
firing?
Witness
A: Three (3) times, sir.
Atty. Agoot
Q: And what did the late Jeffrey do when the gun clicked but did not fire?
Witness
A: They were still pushing each other at that time.
Atty. Agoot

Q: Using the fire extinguisher, heused that to push against the person
Witness
A: Basically trying to cover himself and trying to push away the person who
was pointing the gun at him.
Atty. Agoot
Q: And why do you know that Jeffrey was trying hard to push the fire
extinguisher?
Witness
A: Because I was seated roughly about 5 to 6 feet away from them. So I
clearly saw what was going on at that time.
(Direct Examination of Marie Antonette Managbanag for the Defense, TSN
dated 04 September 2006, pp. 12-17, emphasis supplied)23
Petitioners contention that Jeffreys unlawful aggression was continuous and
imminent is, therefore, devoid of merit.
Given that the criteria of unlawful aggression is indubitably absent in the
instant case, the severe wounds inflicted by petitioner upon Jeffrey was
unwarranted and, therefore, cannot be considered a justifying circumstance
under pertinent laws and jurisprudence.
Second. Even assuming that the unlawful aggression emanated from the
deceased victim, Jeffrey, the means employed by petitioner was not
reasonably commensurate to the nature and extent of the alleged attack,
which he sought to avert. As held by the Court in People v. Obordo:24
Even assuming arguendo that there was unlawful aggression on the part of
the victim, accused-appellant likewise failed to prove that the means he
employed to repel Homer's punch was reasonable. The means employed by
the person invoking self-defense contemplates a rational equivalence
between the means of attack and the defense. Accused appellant claimed
that the victim punched him and was trying to get something from his waist,
so he (accused-appellant) stabbed the victim with his hunting knife. His act
of immediately stabbing Homer and inflicting a wound on a vital part ofthe
victim's body was unreasonable and unnecessary considering that, as
alleged by accused-appellant himself, the victim used his bare fist in
throwing a punch at him.25

Indeed, the means employed by a person resorting to self-defense must be

rationally necessary to prevent or repel an unlawful aggression. The opposite
was, however, employed by petitioner, as correctly pointed out by the RTC,
thus:
The victim was holding the fire extinguisher while the second was holding
the gun. The gun and the discharge thereof was unnecessary and
disproportionate to repel the alleged aggression with the use of fire
extinguisher. The rule is that the means employed by the person invoking
self-defense contemplates a rational equivalence between the means of
attack and the defense (Peo vs. Obordo, 382 SCRA 98).
It was the accused who was in a vantage position as he was armed with a
gun, as against the victim who was armed, so to speak, with a fire
extinguisher, which is not a deadly weapon. Under the circumstances,
accuseds alleged fear was unfounded. The Supreme Court has ruled that
neither an imagined impending attack nor an impending or threatening
attitude is sufficient to constitute unlawful aggression (Catalina Security
Agency Vs. Gonzales-Decano, 429 SCRA 628). It is a settled rule that to
constitute aggression, the person attacked must be confronted by a real
threat on his lifeand limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary (Senoja v. Peo., 440 SCRA 695).26
If petitioner had honestly believed that Jeffrey was trying to kill him, he
should have just run, despite any obstruction, considering that he was
already in possession of the gun. He could have also immediately sought
help from the people around him, specifically the guard stationed at the floor
where the shooting incident happened. In fact, he could have reported the
incident to the authorities as soon as he had opportunity to do so, if it was
indeed an accident or a cry of self-preservation. Yet, petitioner never did any
of that.
We find it highly specious for petitioner to go through the process of tussling
and hassling with Jeffrey, and inthe end, shooting the latter on the forehead,
not only once, but four times, the last shot finally killing him, if he had no
intention to hurt Jeffrey. Thus:
Moreover, the Prosecutions eyewitnesses were consistent in declaring that
while there was prior struggle for the possession of the gun, it was
nevertheless accused who was holding the gun at the time of the actual
firing thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October 17, 2005).
Witness Managbanag even alleged that while the victim (Jeffrey), who was in
possession of the fire extinguisher, and the accused were pushing each
other, accused pointed the gun at the victim. She heard three (3) clicks and
on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under the
circumstances, it cannot be safely said that the gun was or could have been

fired accidentally. The discharge of the gun which led to the victims death
was no longer made in the course of the grapple and/or struggle for the
possession of the gun.27
The observation of the RTC dispels any doubt that the gun may have been
shot accidentally to the detriment of Jeffrey. The fire was neither a disaster
nor a misfortune of sorts. While petitioner may nothave intended to kill
Jeffrey at the onset, at the time he clicked the trigger thrice consecutively,
his intent to hurt (or even kill) Jeffrey was too plain to be disregarded. We
have held in the pastthat the nature and number of wounds are constantly
and unremittingly considered important indicia which disprove a plea of selfdefense.28 Thus, petitioners contention that an accident simultaneously
occurred while hewas in the act of self-defense is simply absurd and
preposterous at best. There could nothave been an accident because the
victim herein suffered a gunshot wound on his head, a vital part of the body
and, thus, demonstrates a criminal mind resolved to end the life of the
victim.
Besides, petitioners failure to inform the police of the unlawful aggression on
the part of Jeffrey and to surrender the gun that he used to kill the victim
militates against his claim of self-defense.29
In view of the foregoing, we find it illogical to discuss further the third
element of self-defense since it is recognized that unlawful aggression is a
conditio sine qua nonfor upholding the justifying circumstance of selfdefense.30 If there is nothing to prevent or repel, the other two requisites of
self-defense will have no basis.31 Hence, there is no basis to entertain
petitioners argument that a privileged mitigating circumstance of
selfdefense is applicable in this case, because unless the victim has
committed unlawful aggression against the other, there can be no selfdefense, complete or incomplete, on the part of the latter.32
Anent petitioners argument thatthe RTC erred when it failed to consider as
suppression of evidence the prosecutions alleged deliberate omission to
present the testimonies of the security guards-on-duty at the time of the
shooting incident, the same fails to persuade. We concur with the decision of
the CA on this point, to wit:
Having admitted the killing of the victim, the burden of evidence that he
acted in self-defense, shifted to accused-appellant Dela Cruz. He must rely
on the strength of his own evidence and not on the weakness of the
prosecutions evidence, for, even if the latter were weak, it could not be
disbelieved after his open admission of responsibility for the killing.
The security guards on duty at the time of the subject incident were at the
disposal of both the prosecution and the defense. The defense did not proffer

proof that the prosecution prevented the security guards from testifying.
There is therefore no basis for it to conclude that the prosecution is guilty of
suppression of evidence.
The defense could have easily presented the security guards if it is of the
opinion that their [the security guards] testimonies were vital and material to
the case of the defense. It could have compelled the security guards on duty
to appear before the court. xxx.33
It is worthy to note that the question of whether petitioner acted in selfdefense is essentially a question of fact. 34 It is the peculiar province of the
trial court to determine the credibility of witnesses and related questions of
fact because of its superior advantage in observing the conduct and
demeanor of witnesses while testifying. 35 This being so and in the absence of
a showing that the CA and the RTC failed to appreciate facts or
circumstances of such weight and substance that would have merited
petitioner's acquittal, this Court finds no compelling reason to disturb the
ruling of the CA that petitioner did not act in self-defense.36
In this regard, we do not subscribe to petitioners contention that since the
incident transpired in Jeffreys office, and the witnesses presented by the
prosecution are known officemates of Jeffrey, the witnesses are expected to
testify in favor of Jeffrey and against petitioner. Ascorrectly pointed out by
respondent, there appears no motive on the part of the prosecution
witnesses to falsely testify against petitioner. 37 The fact that they are
officemates of Jeffrey does not justify a conclusion that Managbanag and
Pelaez would concoct or fabricate stories in favorof Jeffrey for the mere
purpose of implicating petitioner with such a serious crime, especially since
they are testifying under oath.
All told, we find no basis to doubt ordispute, much less overturn, the findings
of the RTC and the CA that the elements of homicide are present in the
instant case as amply shown by the testimonies of the prosecution
eyewitnesses, and they constitute sufficient proof of the guilt of petitioner
beyond cavil or doubt.
Nevertheless, with regard to the appreciation of the aggravating
circumstance of use of an unlicensed firearm, we deviate from the findings of
the CA. A perusal of the Information will show that the use of unlicensed
firearm was expressly alleged in the killing of Jeffrey. This allegation was
further proved during trial by the presentation of the Certification from the
PNP Firearms and Explosives Division, dated November 11, 2005, certifying
that petitioner is not a licensed/registered firearm holder of any kind and
calibre, per verification from the records of the said Division. Accordingly,
under Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294, amending

Section 1 of Presidential Decree (P.D.) No. 1866, such use of an unlicensed

firearm shall be considered as an aggravating circumstance, to wit:
xxxx
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
x x x x.
Under Article 249 of the RPC, the penalty for homicide is reclusion temporal.
There being an aggravating circumstance of use of unlicensed firearm, the
penalty imposable on petitioner should be in its maximum period. 38Applying
the Indeterminate Sentence Law, the petitioner shall be sentenced to an
indeterminate penalty of from ten (10) years and one (1) day of prision
mayor maximum, as the minimum penalty, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal maximum, as the maximum
penalty.
As to the award of civil indemnity, moral damages, and damages for loss of
earning capacity in favor ofprivate respondent, we sustain the findings of the
CA in so far as they are in accordance with prevailing jurisprudence. In
addition, we find the grant of exemplary damages in the present case in
order, since the presence of special aggravating circumstance of use of
unlicensed firearm has been established.39 Based on current jurisprudence,
the award of exemplary damages for homicide is P30,000.00.40
Finally, pursuant to this Courts ruling in Nacar v. Gallery Frames, 41 an
interest of six percent (6%) per annum on the aggregate amount awarded for
civil indemnity and damages for loss of earning capacity shall be imposed,
computed from the time of finality of this Decision until full payment thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August
19, 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89257, finding
petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of
Homicide, are hereby AFFIRMED with MODIFICATIONS, to wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10)
years and one (1) day of prision mayor maximum, as the minimum penalty,
to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal maximum, as the maximum penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the
following:

a. the amount of P50,000.00 as civil indemnity;

b. the amount of P50,000.00 as moral damages;
c. the amount of P25,000.00 as temperate damages;
d. the amount of P30,000.00 as exemplary damages;
e. the amount of P3,022,641.71 as damages for loss of earning
capacity;
f. for the civil indemnity and the damages for loss of earning
capacity, an interest of six percent (6%) per annum, computed
from the time of finality of this Decision until full payment
thereof; and
g. the costs of the litigation.
SO ORDERED.
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which,
after a joint trial, resulted in the conviction of the accused in a decision
rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with
the aggravating circumstance of evident premeditation offset by
the mitigating circumstance of voluntary surrender. The proper

penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248

and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable
doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
Davis Q. Fleischer in the sum of P 12,000.00 as compensatory
damages, P 10,000.00 as moral damages, P 2,000.00 as
attorney's fees, the offended party having been represented by a
private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
Flaviano Rubia in the sum of P12,000.00 as compensatory
damages, P10,000.00 as moral damages, P2,000.00 as
attorney's fees, the offended party having been represent by a
private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan,
Jesus Verano and Cesar Ibanez together with the two deceased
Davis Fleischer and Flaviano Rubia, were fencing the land of
George Fleischer, father of deceased Davis Fleischer. The place
was in the boundary of the highway and the hacienda owned by
George Fleischer. This is located in the municipality of Maitum,
South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II).
At that time, appellant was taking his rest, but when he heard
that the walls of his house were being chiselled, he arose and
there he saw the fencing going on. If the fencing would go on,
appellant would be prevented from getting into his house and
the bodega of his ricemill. So he addressed the group, saying
'Pare, if possible you stop destroying my house and if possible we
will talk it over what is good,' addressing the deceased Rubia,
who is appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot
Fleischer, hitting him. As Fleischer fell down, Rubia ran towards

the jeep, and knowing there is a gun on the jeep, appellant fired
at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the
shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief,
p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer
was the secretary-treasurer and deceased Rubia the assistant manager, on
the one hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court
on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:
Appellant was among those persons from northern and central Luzon who
went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among those
who petitioned then President Manuel L. Quezon to order the subdivision of
the defunct Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No. 21983
on June 3, 1937 over the same area formerly leased and later abandoned by
Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the
settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised for
public auction. At the public auction held in Manila on August 14, 1948,
Fleischer and Company was the only bidder for P6,000.00. But because of

protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to Kiamba
in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with
an amicable settlement signed by the representative of the settlers. This
amicable settlement was later repudiated by the settlers, but the Director of
Lands, acting upon the report of Atty. Gozon, approved the same and ordered
the formal award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural Resources, who,
however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose
of annulling the order of the Secretary of Agriculture and Natural Resources
which affirmed the order of the Director of Lands awarding the contested
land to the company. The settlers as plaintiffs, lost that case in view of the
amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the
part of the company. They appealed to the Court of Appeals (CA-G.R. No.
28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962
or 1963 near the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs. June Talens
who was renting a portion thereof. He also transferred his store from his
former residence to the house near the highway. Aside from the store, he
also had a rice mill located about 15 meters east of the house and a concrete
pavement between the rice mill and the house, which is used for drying
grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf
Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First
Instance of Cotabato, Branch I. to obtain an injunction or annulment of the
order of award with prayer for preliminary injunction. During the pendency of
this case, appellant on February 21, 1967 entered into a contract of lease
with the company whereby he agreed to lease an area of approximately 100

to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of
Exhibits for Defense) for a consideration of P16.00 monthly. According to him,
he signed the contract although the ownership of the land was still uncertain,
in order to avoid trouble, until the question of ownership could be decided.
He never paid the agreed rental, although he alleges that the milling job they
did for Rubia was considered payment. On June 25, 1968, deceased Fleischer
wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for
that portion of land in which your house and ricemill are located
as per agreement executed on February 21, 1967. You have not
paid as as even after repeated attempts of collection made by
Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our agreement
on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers &
Co., Inc. This six- month period shall expire on December 31,
1966.
In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the property line
parallel to the highway. Some posts were planted right on the concrete drier
of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off
the accessibility to appellant's house and rice mill from the highway, since
the door of the same opens to the Fleischers' side. The fencing continued on
that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall
of his house was being chiselled. Getting up and looking out of the window,

he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was
nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The
rest of the incident is narrated in the People's Brief as above-quoted.
Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of
his person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of
his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he
did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance
under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to
his request addressed to his compadre, the deceased Rubia, when he said,

"Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see
the wall of his house being chiselled. The verbal exchange took place while
the two deceased were on the ground doing the fencing and the appellant
was up in his house looking out of his window (pp. 225-227, supra).
According to appellant, Fleischer's remarks caused this reaction in him: "As
if, I lost my senses and unknowingly I took the gun on the bed and
unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer"
(p. 132, supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing
that there was a firearm in the jeep and thinking that if he will
take that firearm he will kill me, I shot at him (p. 132, supra,
Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful exercise
of their rights of ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence
reveals that five persons, consisting of the deceased and their three laborers,
were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using
tools which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was
not disputed that the jeep which they used in going to the place was parked
just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his
walls, his first reaction was to look out of the window. Then he saw the
damage being done to his house, compounded by the fact that his house and
rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to hiscompadre, the deceased Rubia, to stop what they
were doing and to talk things over with him. But deceased Fleischer
answered angrily with 'gademit' and directed his men to proceed with what
they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of

the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house
and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the
victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on
his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have
a right to fence off the contested property, to destroy appellant's house and
to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755
for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not have
known that the case would be dismissed over a year after the incident on
August 22, 1968, as it was dismissed on January 23, 1970 on ground of res
judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil
Case No. 240 filed in 1950 for the annulment of the award to the company,
between the same parties, which the company won by virtue of the
compromise agreement in spite of the subsequent repudiation by the settlers
of said compromise agreement; and that such 1970 dismissal also carried
the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to the company, on the ground
that the Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the
ground that after its filing on November 28, 1968, nothing more was done by
the petitioner Republic of the Philippines except to adopt all the evidence
and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his
execution of the contract of lease on February 21, 1967 was just to avoid

trouble. This was explained by him during cross-examination on January 21,

1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know who
really owns this portion to avoid trouble. To avoid trouble we
better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided
until things will clear up and determine who is really the owner,
we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's entrance and exit to
the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto.
He who believes that he has an action or a right to deprive
another of the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536 and
539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things over
with him. The assault on appellant's property, therefore, amounts to unlawful
aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs.
Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's

property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property (Emphasis
supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from his
window, killing his two victims, his resistance was disproportionate to the
attack.
WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was defending
his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced by
the victims and their laborers. His plea for the deceased and their men to
stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable,
since not all the elements for justification are present. He should therefore be
held responsible for the death of his victims, but he could be credited with
the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance
of treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed might have made. This cannot be

said of a situation where the slayer acted instantaneously ..." (People vs.
Caete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibaez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00
A.M., he was drying corn near the house of Mr. and Mrs. Mamerto
Narvaez at the crossing, Maitum, South Cotabato, when the
accused and his wife talked to him. Mrs. Narvaez asked him to
help them, as he was working in the hacienda. She further told
him that if they fenced their house, there is a head that will be
broken. Mamerto Narvaez added 'Noy, it is better that you will
tell Mr. Fleischer because there will be nobody who will break his
head but I will be the one.' He relayed this to Mr. Flaviano Rubia,
but the latter told him not to believe as they were only Idle
threats designed to get him out of the hacienda (pp. 297-303,
t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have consistently
held, there must be "direct evidence of the planning or preparation to kill the
victim, .... it is not enough that premeditation be suspected or surmised, but
the criminal intent must be evidenced by notorious outward acts evincing
the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238).
Besides, there must be a "showing" that the accused premeditated the
killing; that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution of the
crime to allow them (him) to reflect upon the consequences of the act"
(People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing,
and clung to his premeditated act, the trial court's conclusion as to the
presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the

victims to stop the fencing and destroying his house and to talk things over
just before the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered
to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of
the crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed.
Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was
dismantled, thus forcing him to transfer to his only remaining house, must
have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his
rights. Considering the antecedent facts of this case, where appellant had
thirty years earlier migrated to this so-called "land of promise" with dreams
and hopes of relative prosperity and tranquility, only to find his castle
crumbling at the hands of the deceased, his dispassionate plea going
unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing
not being attended by any qualifying nor aggravating circumstance, but
extenuated by the privileged mitigating circumstance of incomplete defensein view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one
or two degrees shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same.
Considering that the majority of the requirements for defense of property are
present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral
damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed but
they actually provoked the attack by damaging appellant's properties and
business. Considering appellant's standing in the community, being married
to a municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife,
councilor Feliza Narvaez, was also charged in these two cases and detained
without bail despite the absence of evidence linking her to the killings. She
was dropped as a defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who
uprooted their families from their native soil in Luzon to take advantage of
the government's resettlement program, but had no sufficient means to fight
the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the
damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant
to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS

HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS

OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS
FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P
4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
PEOPLE
OF
THE
GENOSA, appellant.

PHILIPPINES, appellee,

vs. MARIVIC

DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the battered woman syndrome (BWS), which
allegedly constitutes self-defense. Under the proven facts, however, she is
not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her battererhusband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This psychological paralysis she
suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she suffered
that fatal night in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed her and put
her in the aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising
from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has

already served the minimum period of her penalty while under detention
during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the
crime of Parricide as provided under Article 246 of the Revised Penal Code as
restored by Sec. 5, RA No. 7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA,
her legitimate husband, with the use of a hard deadly weapon, which the
accused had provided herself for the purpose, [causing] the following
wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the
mouth.
Fracture, open, depressed, circular located at the occipital bone of the
head, resulting [in] laceration of the brain, spontaneous rupture of
the blood vessels on the posterior surface of the brain, laceration of

the dura and meningeal vessels producing severe intracranial

hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel, [5] appellant pleaded not guilty during
her arraignment on March 3, 1997.[6] In due course, she was tried for and
convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecutions
version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in
Ormoc City. Thereafter, they lived with the parents of Ben in their house at
Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived
with their two children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Bens house before reaching his. When they arrived
at the house of Ben, he found out that appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house, while Arturo went to a store across
it, waiting until 9:00 in the evening for the masiao runner to place a bet.
Arturo did not see appellant arrive but on his way home passing the side of
the Genosas rented house, he heard her say I wont hesitate to kill you to
which Ben replied Why kill me when I am innocent? That was the last time
Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented
house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after her
pig because she was going to Cebu for a pregnancy check-up. Appellant

likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie

Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a
bus going to Ormoc when he saw appellant going out of their house with her
two kids in tow, each one carrying a bag, locking the gate and taking her
children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas rented house. Joseph, appellant and her children
rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the
foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was
locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able to
get inside through the kitchen door but only after destroying a window to
reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in his
briefs with injuries at the back of his head. Seeing this, Steban went out of
the house and sent word to the mother of Ben about his sons misfortune.
Later that day, Iluminada Genosa, the mother of Ben, identified the dead
body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body of Ben lying
on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of
an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in
disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench,
had to be taken outside at the back of the house before the postmortem
examination was conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body
was already decomposing. The postmortem examination of Dr. Cerillo yielded
the findings quoted in the Information for parricide later filed against
appellant. She concluded that the cause of Bens death was cardiopulmonary

arrest secondary to severe intracranial hemorrhage due to a depressed

fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work
on November 15, 1995, she got worried that her husband who was not home
yet might have gone gambling since it was a payday. With her cousin Ecel
Arao, appellant went to look for Ben at the marketplace and taverns at
Isabel, Leyte but did not find him there. They found Ben drunk upon their
return at the Genosas house. Ecel went home despite appellants request for
her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging
her to a fight. She allegedly ignored him and instead attended to their
children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
the television antenna or wire to keep her from watching television.
According to appellant, Ben was about to attack her so she ran to the
bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged
appellant outside of the bedroom towards a drawer holding her by the neck,
and told her You might as well be killed so nobody would nag me. Appellant
testified that she was aware that there was a gun inside the drawer but since
Ben did not have the key to it, he got a three-inch long blade cutter from his
wallet. She however, smashed the arm of Ben with a pipe, causing him to
drop the blade and his wallet. Appellant then smashed Ben at his nape with
the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was and
shot Ben. He did not die on the spot, though, but in the bedroom. [7] (Citations
omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1. Marivic and Ben Genosa were allegedly married on November 19, 1983.
Prior to her marriage, Marivic had graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of Science in Business Administration, and
was working, at the time of her husbands death, as a Secretary to the Port

Managers in Ormoc City. The couple had three (3) children: John Marben, Earl
Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben
was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents, together
with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic
and Ben lived happily. But apparently, soon thereafter, the couple would
quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand was covered
with blood. Marivic left the house but after a week, she returned apparently
having asked for Bens forgiveness. In another incident in May 22, 1994, early
morning, Alex and his father apparently rushed to Bens aid again and saw
blood from Bens forehead and Marivic holding an empty bottle. Ben and
Marivic reconciled after Marivic had apparently again asked for Bens
forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben
and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City.
She said as the marriage went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two
sons, there were three (3) misunderstandings. The first was when Marivic
stabbed Ben with a table knife through his left arm; the second incident was
on November 15, 1994, when Marivic struck Ben on the forehead using a
sharp instrument until the eye was also affected. It was wounded and also
the ear and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and
she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995
After we collected our salary, we went to the cock-fighting place of ISCO.
They stayed there for three (3) hours, after which they went to Uniloks and
drank beer allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He

stayed a while talking with Ben, after which he went across the road to wait
for the runner and the usher of the masiao game because during that time,
the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet. On his way home at about 9:00 in
the evening, he heard the Genosas arguing. They were quarreling loudly.
Outside their house was one Fredo who is used by Ben to feed his fighting
cocks. Basobas testimony on the root of the quarrel, conveniently overheard
by him was Marivic saying I will never hesitate to kill you, whilst Ben replied
Why kill me when I am innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben before
when he was stricken with a bottle by Marivic Genosa that he should leave
her and that Ben would always take her back after she would leave him so
many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel to
her and was a habitual drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and sometimes beat her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to change
and would ask for her forgiveness. She said after she would be beaten, she
would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
These doctors would enter the injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he overheard a quarrel between Ben
and Marivic. Marivic was shouting for help and through the open jalousies, he
saw the spouses grappling with each other. Ben had Marivic in a choke hold.
He did not do anything, but had come voluntarily to testify. (Please note this
was the same night as that testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the night
of November 15, 1995. He peeped through the window of his hut which is

located beside the Genosa house and saw the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the
accused, Marivic Genosa. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work
as he was to go fishing that evening. He returned at 8:00 the next morning.
(Again, please note that this was the same night as that testified to by
Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they
were living in Isabel, Leyte. His house was located about fifty (50) meters
from theirs. Marivic is his niece and he knew them to be living together for
13 or 14 years. He said the couple was always quarreling. Marivic confided in
him that Ben would pawn items and then would use the money to gamble.
One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified if somebody would come. He testified that while
Ben was alive he used to gamble and when he became drunk, he would go to
our house and he will say, Teody because that was what he used to call me,
mokimas ta, which means lets go and look for a whore. Mr. Sarabia further
testified that Ben would box his wife and I would see bruises and one time
she ran to me, I noticed a wound (the witness pointed to his right breast) as
according to her a knife was stricken to her. Mr. Sarabia also said that once
he saw Ben had been injured too. He said he voluntarily testified only that
morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market place,
several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was
drunk because of his staggering walking and I can also detect his face.
Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep
in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple were very noisy
in the sala and I had heard something was broken like a vase. She said
Marivic ran into her room and they locked the door. When Ben couldnt get in
he got a chair and a knife and showed us the knife through the window grill
and he scared us. She said that Marivic shouted for help, but no one came.
On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times
and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits 2
and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
not say whether the injuries were directly related to the crime committed. He
said it is only a psychiatrist who is qualified to examine the psychological
make-up of the patient, whether she is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went to
his office past 8:00 in the evening. She sought his help to settle or confront
the Genosa couple who were experiencing family troubles. He told Marivic to
return in the morning, but he did not hear from her again and assumed that
they might have settled with each other or they might have forgiven with
each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that night
it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure
she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her husband
at least five (5) times, but that Ben would always follow her and they would
reconcile. Marivic said that the reason why Ben was violent and abusive
towards her that night was because he was crazy about his recent girlfriend,
Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that
he died in the bedroom; that their quarrels could be heard by anyone passing

their house; that Basobas lied in his testimony; that she left for Manila the
next day, November 16, 1995; that she did not bother anyone in Manila,
rented herself a room, and got herself a job as a field researcher under the
alias Marvelous Isidro; she did not tell anyone that she was leaving Leyte,
she just wanted to have a safe delivery of her baby; and that she was
arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to smash
him once; that she was wounded by Ben on her wrist with the bolo; and that
two (2) hours after she was whirled by Ben, he kicked her ass and dragged
her towards the drawer when he saw that she had packed his things.
9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa residence.
This fact was testified to by all the prosecution witnesses and some defense
witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of
Isabel, Leyte at the time of the incident, and among her responsibilities as
such was to take charge of all medico-legal cases, such as the examination
of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986.
She was called by the police to go to the Genosa residence and when she got
there, she saw some police officer and neighbor around. She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position with his back to
the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury involving
the skeletal area of the head which she described as a fracture. And that
based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did
not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic Genosa
charged her with the crime of PARRICIDE committed with intent to kill, with
treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17,
22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997,
22 May 1998, and 5 and 6 August 1998.

13. On 23 September 1998, or only fifty (50) days from the day of the last
trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable
doubt of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.
14. The case was elevated to this Honorable Court upon automatic review
and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellants Briefs he had prepared
for Marivic which, for reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated
20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16. In the meantime, under date of 17 February 2000, and stamp-received
by the Honorable Court on 19 February 2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his death;
allow the examination of Marivic Genosa by qualified psychologists and
psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take
the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun,
then the only qualified forensic pathologist in the country, who opined that
the description of the death wound (as culled from the post-mortem findings,
Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivics URGENT OMNIBUS MOTION and remanded the case to the
trial court for the reception of expert psychological and/or psychiatric opinion
on the battered woman syndrome plea, within ninety (90) days from notice,
and, thereafter to forthwith report to this Court the proceedings taken,
together with the copies of the TSN and relevant documentary evidence, if
any, submitted.

18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified

before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews
were done at the Penal Institution in 1999, but that the clinical interviews
and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20)
years with her own private clinic and connected presently to the De La Salle
University as a professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and
was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in
Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P.
She was the past president of the Psychological Association of the Philippines
and is a member of the American Psychological Association. She is the
secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the
first time she has testified as an expert on battered women as this is the first
case of that nature.
Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all of
this marital conflicts, from domestic violence to infidelity, to psychiatric
disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it, that

they were the one who precipitated the violence, they provoke their spouse
to be physically, verbally and even sexually abusive to them. Dra. Dayan
said that usually a battered x x x comes from a dysfunctional family or from
broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a
very low opinion of himself. But then emerges to have superiority complex
and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
become violent. The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also,
they see often how their parents abused each other so there is a lot of
modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked
the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake
of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is long
lasting and even would cause hospitalization on the victim and even death
on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the
past.
xxxxxxxxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since
passed away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of
the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training on psychiatry and
neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years.
Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was presented
twice in international congresses. He also authored The Mental Health of the
Armed Forces of the Philippines 2000, which was likewise published
internationally and locally. He had a medical textbook published on the use
of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo
had already encountered a suit involving violent family relations, and
testified in a case in 1964. In the Armed Forces of the Philippines, violent
family disputes abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was reconciliation.
As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita
Deproza.

As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if
the victim is not very healthy, perhaps one episode of violence may induce
the disorder; if the psychological stamina and physiologic constitutional
stamina of the victim is stronger, it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this x x x is very
dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by overwhelming
brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being beaten
at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her selfworld is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and love of
the parents. As to the batterer, he normally internalizes what is around him
within the environment. And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his
strong faade but in it there are doubts in himself and prone to act without
thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxxxxxxxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to
defend themselves, and primarily with knives. Usually pointed weapons or
any weapon that is available in the immediate surrounding or in a hospital x
x x because that abound in the household. He said a victim resorts to
weapons when she has reached the lowest rock bottom of her life and there
is no other recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview
he conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivicc mental condition was that she was reexperiencing the trauma. He said that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just
come in flashes and probably at that point in time that things happened
when the re-experiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super alert anymore
x x x she is mentally stress (sic) because of the predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private or
the public prosecutor. Thus, in accord with the Resolution of this Honorable
Court, the records of the partially re-opened trial aquo were elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave
credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this
Court for automatic review.
Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying

that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at
the time she had killed her spouse; and (3) the inclusion of the said experts
reports in the records of the case for purposes of the automatic review or, in
the alternative, a partial reopening of the case for the lower court to admit
the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part
appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to report thereafter to this
Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then
presented to and admitted by the lower court before finally being submitted
to this Court to form part of the records of the case.[12]
The Issues
Appellant assigns the following alleged errors of the trial court for this
Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty decision
without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for parricide.
3. The trial court gravely erred finding the cause of death to be by beating
with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the children
of Marivic Genosa.

6. The trial court gravely erred in concluding that Marivics flight to Manila
and her subsequent apologies were indicia of guilt, instead of a clear attempt
to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus
in this case, thereby erroneously convicting Marivic Genosa of the crime of
parricide and condemning her to the ultimate penalty of death.[13]
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if
not collateral to the resolution of the principal issues. As consistently held by
this Court, the findings of the trial court on the credibility of witnesses and
their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge
gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect the
outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that would
reverse or modify the trial courts disposition of the case. In any event, we
will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously
hasty decision without reflecting on the evidence adduced as to self-defense.
We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on
record -- made his evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judges

conclusions, we cannot peremptorily conclude, absent substantial evidence,

that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an
obviously hasty manner. The Information had been filed with the lower court
on November 14, 1996. Thereafter, trial began and at least 13 hearings were
held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial
and resolved the case with dispatch should not be taken against him, much
less used to condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find his actions
in substantial compliance with his constitutional obligation.[15]
Second, the lower court did not err in finding as a fact that Ben Genosa
and appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the relationship
between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the brother
of appellants deceased spouse -- attested in court that Ben had been
married to Marivic.[17] The defense raised no objection to these testimonies.
Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable mistake, or (2)
no admission was in fact made. [19] Other than merely attacking the nonpresentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of
Bens death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of killing her husband
and the acts of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victims
death. Determining which of these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence
that Ben was a drunk, gambler, womanizer and wife-beater. Until this case
came to us for automatic review, appellant had not raised the novel defense of

battered woman syndrome, for which such evidence may have been relevant.
Her theory of self-defense was then the crucial issue before the trial court. As
will be discussed shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding facts that led
to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellants children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.[20] As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the
flight of Marivic to Manila and her subsequent apologies to her brother-in-law
are indicia of her guilt or are attempts to save the life of her unborn child.
Any reversible error as to the trial courts appreciation of these circumstances
has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When the accused
admits killing the victim, it is incumbent upon her to prove any claimed
justifying circumstance by clear and convincing evidence. [21] Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a
stranger or third person) shifts the burden of proof from the prosecution to
the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered
woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.[23] By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern for

her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman.[25]
Battered women exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterers actions; and false hopes that the
relationship will improve.[26]
More graphically, the battered woman syndrome is characterized by the
so-called cycle of violence,[27] which has three phases: (1) the tensionbuilding phase; (2) the acute battering incident; and (3) the tranquil, loving
(or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it could
be verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he has the right to
abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate
him are not usually successful, and the verbal and/or physical abuse
worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence spirals out of control and
leads to an acute battering incident.[29]
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be
as unpredictable as the time of its explosion, and so are his reasons for
ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her

past painful experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner will change
for the better; and that this good, gentle and caring man is the real person
whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
womans psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense
presented several witnesses. She herself described her heart-rending
experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year
he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your
husband was abusive to you and cruel. In what way was this
abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and

sometimes he pinned me down on the bed and sometimes beat
me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate
each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced
and after that I go to him and he said sorry.
Q During those times that you were the recipient of such cruelty and
abusive behavior by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury
inflicted on your occurred, after your marriage, from that time on,
how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a
week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just
quarrel me. [32]
Referring to his Out-Patient Chart [33] on Marivic Genosa at the Philphos
Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:
Q So, do you have a summary of those six (6) incidents which are
found in the chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates
for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R)
lower eyelid and redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area,
pain and contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma.
Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending
physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were
the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion furuncle left
axilla?
A Abrasion is a skin wound usually when it comes in contact with
something rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation
of left breast. So, [pain] meaning there is tenderness. When your
breast is traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of
these injuries. And she told me that it was done to her by her
husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused
sometime in the month of November, 1995 when this incident
happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was
the patient pregnant?

A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy
was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an
examination about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates
her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You said that
you were able to examine her personally on November 6, 1995
and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same
period from 1989 to 1995, she had a consultation for twenty-three
(23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the
patient had hypertension?
A The patient definitely had hypertension. It was refractory to our
treatment. She does not response when the medication was given
to her, because tension headache is more or less stress related
and emotional in nature.

Q What did you deduce of tension headache when you said is

emotional in nature?
A From what I deduced as part of our physical examination of the
patient is the family history in line of giving the root cause of what
is causing this disease. So, from the moment you ask to the
patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases
in hypertension which is unfortunately does not response to the
medication.
Q In November 6, 1995, the date of the incident, did you take the
blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was
180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is
dangerous level of blood pressure?
A It was dangerous to the child or to the fetus. [34]
Another defense witness, Teodoro Sarabia, a former neighbor of the
Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had been asked
by Marivic to sleep at the Genosa house, because the latter feared that Ben
would come home drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten oclock at night, because the couple were
very noisy and I heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by the window
grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -this time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling. [37] Marivic relates
in detail the following backdrop of the fateful night when life was snuffed out
of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15,
1995 in the evening?
A Whole morning and in the afternoon, I was in the office working
then after office hours, I boarded the service bus and went to
Bilwang. When I reached Bilwang, I immediately asked my son,
where was his father, then my second child said, he was not home
yet. I was worried because that was payday, I was anticipating
that he was gambling. So while waiting for him, my eldest son
arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at
Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to
sleep with me at that time because I had fears that he was again
drunk and I was worried that he would again beat me so I
requested my cousin to sleep with me, but she resisted because
she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Arao, the one who testified.

Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not
allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you?
What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel
him.
Q What was the cause of his nagging or quarreling at you if you
know?
A He was angry at me because I was following x x x him, looking for
him. I was just worried he might be overly drunk and he would
beat me again.
Q You said that he was yelling at you, what else, did he do to you if
any?
A He was nagging at me at that time and I just ignore him because I
want to avoid trouble for fear that he will beat me again. Perhaps

he was disappointed because I just ignore him of his provocation

and he switch off the light and I said to him, why did you switch
off the light when the children were there. At that time I was also
attending to my children who were doing their assignments. He
was angry with me for not answering his challenge, so he went to
the kitchen and [got] a bolo and cut the antenna wire to stop me
from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they
were scared and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was
carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I
fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was
going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.

Q During this time, where were your children, what were their
reactions?
A After a couple of hours, he went back again and he got angry with
me for packing his clothes, then he dragged me again of the
bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you?
How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he
kept on shouting at me that you might as well be killed so there
will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key
then he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed
his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he
was about to pick-up the wallet and the blade, I smashed him then
I ran to the other room, and on that very moment everything on
my mind was to pity on myself, then the feeling I had on that very

moment was the same when I was admitted in PHILPHOS Clinic, I

was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to testify as an
expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latters ordeal to the
court a quo as follows:

Q: What can you say, that you found Marivic as a battered wife? Could
you in laymans term describe to this Court what her life was like
as said to you?
A: What I remember happened then was it was more than ten years,
that she was suffering emotional anguish. There were a lot of
instances of abuses, to emotional abuse, to verbal abuse and to
physical abuse. The husband had a very meager income, she was
the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse.
She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the
husband was saying that the child she was carrying was not his
own. So she was very angry, she was at the same time very
depressed because she was also aware, almost like living in
purgatory or even hell when it was happening day in and day
out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely elicited,
but wittingly or unwittingly put forward, additional supporting evidence as
shown below:
Q In your first encounter with the appellant in this case in 1999,
where you talked to her about three hours, what was the most
relevant information did you gather?
A The most relevant information was the tragedy that happened. The
most important information were escalating abuses that she had
experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you
already knew of the facts of the case or at least you have
substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can
consider them as substantial.
xxxxxxxxx
Q Did you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.

Q Did you ask for a complete example who are the relatives of her
husband that were fond of battering their wives?
A What I remember that there were brothers of her husband who are
also battering their wives.
Q Did she not inform you that there was an instance that she stayed
in a hotel in Ormoc where her husband followed her and battered
[her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in
that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being
battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on
saying this matter. I think that is the first time that we have this in
the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind
happened, it was really a self-defense. I also believe that there
had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of
all the battering that happened and so she became an abnormal
person who had lost shes not during the time and that is why it
happened because of all the physical battering, emotional
battering, all the psychological abuses that she had experienced
from her husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated as follows:
Q And you also said that you administered [the] objective personality
test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial
Inventory. The purpose of that test is to find out about the lying
prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is
she someone who can exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality
test?
A She was a person who passed the honesty test. Meaning she is a
person that I can trust. That the data that Im gathering from her
are the truth.[41]
The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report, [42] which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same
time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed
toward his family, particularly to his wife. The Report continued: At first, it
was verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, [s]he also sought the advice and help of
close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the
Courts mind that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused
woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person
who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both
relevant and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why
would a woman put up with this kind of treatment? Why should she continue
to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her

bags and go. Where is her self-respect? Why does she not cut loose and
make a new life for herself? Such is the reaction of the average person
confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should
not be drawn from that of an ordinary, reasonable person. What goes on in
the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and
refute common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research
on domestic violence, has had a significant impact in the United States and
the United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latters ability to act decisively in her
own interests, making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the abuse often
escalates at the point of separation and battered women are in greater
danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered
woman usually has a very low opinion of herself. She has x x x self-defeating
and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be
physically, verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered
woman does not readily leave an abusive partner -- poverty, self-blame and
guilt arising from the latters belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He
had previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within the
Armed Forces of the Philippines, wherein such cases abounded. As a result of
his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical abuse on
the woman would sometimes even lead to her loss of consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in
posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons
may believe that they are essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have the effect of stimulating

the development of coping responses to the trauma at the expense of the

victims ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can do will
have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University
of Pennsylvania, found that even if a person has control over a situation, but
believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape. He said that it
was the cognitive aspect -- the individuals thoughts -- that proved allimportant. He referred to this phenomenon as learned helplessness. [T]he
truth or facts of a situation turn out to be less important than the individuals
set of beliefs or perceptions concerning the situation. Battered women dont
attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances.[54]
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he
is capable of killing her, and that there is no escape. [55] Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.[56] Unless a shelter is available, she stays with her husband, not
only because she typically lacks a means of self-support, but also because
she fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for specific
evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with
the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to
find ample evidence that would confirm the presence of the essential
characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence
supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a quo how
the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other words, she
failed to prove that in at least another battering episode in the past, she had
gone through a similar pattern.
How did the tension between the partners usually arise or build up prior
to acute battering? How did Marivic normally respond to Bens relatively
minor abuses? What means did she employ to try to prevent the situation
from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third

phase of the cycle. She simply mentioned that she would usually run away to
her mothers or fathers house;[58] that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her
and her spouse? Did she believe that she was the only hope for Ben to
reform? And that she was the sole support of his emotional stability and wellbeing? Conversely, how dependent was she on him? Did she feel helpless
and trapped in their relationship? Did both of them regard death as
preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses
for the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each others
testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual experiences
and thoughts that appellant had related to them -- if at all -- based on which
they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of
the battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in
itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that
crucial to the BWS defense is the state of mind of the battered woman at the
time of the offense[60] -- she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in order to save her
life.
Settled in our jurisprudence, however, is the rule that the one who resorts
to self-defense must face a real threat on ones life; and the peril sought to be

avoided must be imminent and actual, not merely imaginary.[61] Thus, the
Revised Penal Code provides the following requisites and effect of selfdefense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
Unlawful aggression is the most essential element of self-defense. [63] It
presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person. [64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and
escape to their childrens bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of the danger
he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens
bedroom -- and based on past violent incidents, there was a great probability
that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the battered
person to await an obvious, deadly attack before she can defend her life
would amount to sentencing her to murder by installment. [65] Still, impending
danger (based on the conduct of the victim in previous battering episodes)
prior to the defendants use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence of danger.
[66]
Considering such circumstances and the existence of BWS, self-defense
may be appreciated.
We reiterate the principle that aggression, if not continuous, does not
warrant self-defense.[67] In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim. [68] Thus,
Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her
criminal liability. It is a hornbook doctrine that an appeal in a criminal case
opens it wholly for review on any issue, including that which has not been
raised by the parties.[69]
From several psychological tests she had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated battering
Marivic experienced with her husband constitutes a form of [cumulative]
provocation which broke down her psychological resistance and natural selfcontrol. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced
at the hands of her abuser husband a state of psychological paralysis which
can only be ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that
the effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of the
battering is posttraumatic stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering.
Second, the severity of the battering. Third, the prolonged
administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the
victim and another one is the public and social support available
to the victim. If nobody is interceding, the more she will go to that
disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications in
terms of severity of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of
the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing

the individual. In this situation therefore, the victim is heightened

to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she
is also to protect the fetus. So the anxiety is heightened to the
end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you
classify?
A We classify the disorder as [acute], or chronic or delayed or
[a]typical.
Q Can you please describe this pre[-]classification you called delayed
or [atypical]?
A The acute is the one that usually require only one battering and the
individual will manifest now a severe emotional instability, higher
irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will
be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A

The chronic cases is this repetitious battering, repetitious

maltreatment, any prolonged, it is longer than six (6) months. The
[acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically
that after six (6) months is chronic. The [a]typical one is the
repetitious battering but the individual who is abnormal and then
become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder. [72]

Answering the questions propounded by the trial judge, the expert

witness clarified further:
Q But just the same[,] neurosis especially on battered woman
syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in cumulative provocation which broke down her
psychological resistance and natural self-control, psychological paralysis, and
difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations
were analogous to an illness that diminished the exercise by appellant of her
will power without, however, depriving her of consciousness of her

acts. There was, thus, a resulting diminution of her freedom of action,

intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of
the Revised Penal Code, this circumstance should be taken in her favor and
considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. It has been held that this state
of mind is present when a crime is committed as a result of an uncontrollable
burst of passion provoked by prior unjust or improper acts or by a legitimate
stimulus so powerful as to overcome reason. [77] To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable
length of time, during which the accused might recover her normal
equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened to
kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. [79]His
abusive and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to retreat to a
separate room, her emotional and mental state continued. According to her,
she felt her blood pressure rise; she was filled with feelings of self-pity and of
fear that she and her baby were about to die. In a fit of indignation, she pried
open the cabinet drawer where Ben kept a gun, then she took the weapon
and used it to shoot him.
The confluence of these events brings us to the conclusion that there was
no considerable period of time within which Marivic could have recovered her
normal equanimity. Helpful is Dr. Pajarillos testimony [80] that with neurotic
anxiety -- a psychological effect on a victim of overwhelming brutality [or]
trauma -- the victim relives the beating or trauma as if it were real, although
she is not actually being beaten at the time. She cannot control reexperiencing the whole thing, the most vicious and the trauma that she
suffered. She thinks of nothing but the suffering. Such reliving which is
beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her
from recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological
paralysis as well as passion and obfuscation -- did not arise from the same
set of facts.

On the one hand, the first circumstance arose from the cyclical nature
and the severity of the battery inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed
by her as an attempt not only on her life, but likewise on that of their unborn
child. Such perception naturally produced passion and obfuscation on her
part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons
by employing means, methods or forms in the execution thereof without risk
to oneself arising from the defense that the offended party might make. [81] In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of
evidence.[82] Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an open, depressed, circular fracture located at the
back of his head. As to exactly how and when he had been fatally attacked,
however, the prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he dragged you?
How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he
kept on shouting at me that you might as well be killed so there
will be nobody to nag me

Q So you said that he dragged you towards the drawer?

A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key
then he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed
his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he
was about to pick-up the wallet and the blade, I smashed him then
I ran to the other room, and on that very moment everything on
my mind was to pity on myself, then the feeling I had on that very
moment was the same when I was admitted in PHILPHOS Clinic, I
was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxxxxxxxx
Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and
I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic, I was
about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him,
the witness at the same time pointed at the back of her neck or
the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through with
him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got that gun and
I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence of treachery.
There is no showing of the victims position relative to appellants at the time
of the shooting. Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault adopted
by the aggressor must have been consciously and deliberately chosen for the

specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked. [86] There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method
by which she committed the crime in order to ensure its execution, this Court
resolves the doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal
Code is reclusion perpetua to death. Since two mitigating circumstances and
no aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 [88] of the same Code.[89] The penalty
ofreclusion temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown to
have attended the commission of the offense. [90] Under the Indeterminate
Sentence Law, the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the maximum shall be
within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six
(6) years and one (1) day in prison as minimum; to reclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for
and be released from detention on parole.[91]
Epilogue
Being a novel concept in our jurisprudence, the battered woman
syndrome was neither easy nor simple to analyze and recognize vis--vis the
given set of facts in the present case. The Court agonized on how to apply
the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies of the

syndrome and the distinct personality of the chronically abused person.

Certainly, the Court has learned much. And definitely, the solicitor general
and appellants counsel, Atty. Katrina Legarda, have helped it in such learning
process.
While our hearts empathize with recurrently battered persons, we can
only work within the limits of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense
arising from the battered woman syndrome. We now sum up our main
points. First, each of the phases of the cycle of violence must be proven to
have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding
the killing of the batterer must have produced in the battered persons mind
an actual fear of an imminent harm from her batterer and an honest belief
that she needed to use force in order to save her life. Third, at the time of
the killing, the batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused, based on the history of
violence perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense,
her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is
eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.
VICKY
C.
TY, petitioner, vs.
respondent.
DECISION
TINGA, J.:

PEOPLE

OF

THE

PHILIPPINES,

Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule
45, seeking to set aside the Decision[1] of the Court of Appeals Eighth Division
in
CA-G.R.
CR
No.
20995,
promulgated
on 31
July
2001. The Decision affirmed with modification the judgment of the Regional
Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty
of seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22),
otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation
of B.P. 22 against Ty before the RTC of Manila. The Informations were
docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory
portion of the Information in Criminal Case No. 93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable
to Manila Doctors Hospital in the amount of P30,000.00, said accused well
knowing that at the time of issue she did not have sufficient funds in or credit
with the drawee bank for payment of such check in full upon its
presentment, which check when presented for payment within ninety (90)
days from the date hereof, was subsequently dishonored by the drawee bank
for Account Closed and despite receipt of notice of such dishonor, said
accused failed to pay said Manila Doctors Hospital the amount of the check
or to make arrangement for full payment of the same within five (5) banking
days after receiving said notice.
Contrary to law.[3]
The other Informations are similarly worded except for the number of the
checks and dates of issue. The data are hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00

93-130463 487706 30 November 1992 P30,000.00

93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00[4]
The cases were consolidated and jointly tried. At her arraignment, Ty
pleaded not guilty.[5]
The evidence for the prosecution shows that Tys mother Chua Lao So Un
was confined at the Manila Doctors Hospital (hospital) from 30 October
1990 until 4 June 1992. Being the patients daughter, Ty signed the
Acknowledgment of Responsibility for Payment in the Contract of Admission
dated 30 October 1990.[6] As of 4 June 1992, the Statement of
Account[7]shows the total liability of the mother in the amount
of P657,182.40. Tys sister, Judy Chua, was also confined at the hospital
from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount
of P418,410.55.[8] The total hospital bills of the two patients amounted
to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein
she assumed payment of the obligation in installments. [9] To assure payment
of the obligation, she drew several postdated checks against Metrobank
payable to the hospital. The seven (7) checks, each covering the amount
of P30,000.00, were all deposited on their due dates. But they were all
dishonored by the drawee bank and returned unpaid to the hospital due to
insufficiency of funds, with the Account Closed advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail. As the
demand letters were not heeded, complainant filed the seven
(7)Informations subject of the instant case.[10]
For her defense, Ty claimed that she issued the checks because of an
uncontrollable fear of a greater injury. She averred that she was forced to
issue the checks to obtain release for her mother whom the hospital
inhumanely and harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of room facilities,
such as the air-condition unit, refrigerator and television set, and subject to
inconveniences such as the cutting off of the telephone line, late delivery of
her mothers food and refusal to change the latters gown and bedsheets. She
also bewailed the hospitals suspending medical treatment of her mother. The
debasing treatment, she pointed out, so affected her mothers mental,
psychological and physical health that the latter contemplated suicide if she
would not be discharged from the hospital. Fearing the worst for her mother,

and to comply with the demands of the hospital, Ty was compelled to sign a
promissory note, open an account with Metrobank and issue the checks to
effect her mothers immediate discharge.[11]
Giving full faith and credence to the evidence offered by the prosecution,
the trial court found that Ty issued the checks subject of the case in payment
of the hospital bills of her mother and rejected the theory of the defense.
[12]
Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty
of seven (7) counts of violation of B.P. 22 and sentencing her to a prison
term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation, which turned unfounded on their
respective dates of maturity, is found guilty of seven (7) counts of violations
of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.
SO ORDERED.[13]
Ty interposed an appeal from the Decision of the trial court. Before the
Court of Appeals, Ty reiterated her defense that she issued the checks under
the impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She also argued that the trial court erred in finding her
guilty when evidence showed there was absence of valuable consideration
for the issuance of the checks and the payee had knowledge of the
insufficiency of funds in the account. She protested that the trial court should
not have applied the law mechanically, without due regard to the principles
of justice and equity.[14]
In its Decision dated 31 July 2001, the appellate court affirmed the
judgment of the trial court with modification. It set aside the penalty of
imprisonment and instead sentenced Ty to pay a fine of sixty thousand pesos
(P60,000.00) equivalent to double the amount of the check, in each case.[15]
In its assailed Decision, the Court of Appeals rejected Tys defenses of
involuntariness in the issuance of the checks and the hospitals knowledge of
her checking accounts lack of funds.It held that B.P. 22 makes the mere act
of issuing a worthless check punishable as a special offense, it being
a malum prohibitum. What the law punishes is the issuance of a bouncing
check and not the purpose for which it was issued nor the terms and
conditions relating to its issuance.[16]

Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in payment
of the hospital bills of Tys mother.[17]
In sentencing Ty to pay a fine instead of a prison term, the appellate
court applied the case of Vaca v. Court of Appeals[18] wherein this Court
declared that in determining the penalty imposed for violation of B.P. 22, the
philosophy underlying the Indeterminate Sentence Law should be
observed, i.e., redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic usefulness, with
due regard to the protection of the social order.[19]
Petitioner now comes to this Court basically alleging the same issues
raised before the Court of Appeals. More specifically, she ascribed errors to
the appellate court based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER
WAS FORCED TO OR COMPELLED IN THE OPENING OF THE
ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN
AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF
VALUABLE CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT
CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS
FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE
HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED
CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE
PRINCIPLES OF JUSTICE AND EQUITY.
In its Memorandum,[20] the Office of the Solicitor General (OSG), citing
jurisprudence, contends that a check issued as an evidence of debt, though
not intended to be presented for payment, has the same effect as an
ordinary check; hence, it falls within the ambit of B.P. 22. And when a check
is presented for payment, the drawee bank will generally accept the same,

regardless of whether it was issued in payment of an obligation or merely to

guarantee said obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance. The mere act of issuing a worthless check
is malum prohibitum.[21]
We find the petition to be without merit and accordingly sustain Tys
conviction.
Well-settled is the rule that the factual findings and conclusions of the
trial court and the Court of Appeals are entitled to great weight and respect,
and will not be disturbed on appeal in the absence of any clear showing that
the trial court overlooked certain facts or circumstances which would
substantially affect the disposition of the case. [22] Jurisdiction of this Court
over cases elevated from the Court of Appeals is limited to reviewing or
revising errors of law ascribed to the Court of Appeals whose factual findings
are conclusive, and carry even more weight when said court affirms the
findings of the trial court, absent any showing that the findings are totally
devoid of support in the record or that they are so glaringly erroneous as to
constitute serious abuse of discretion.[23]
In the instant case, the Court discerns no compelling reason to reverse
the factual findings arrived at by the trial court and affirmed by the Court of
Appeals.
Ty does not deny having issued the seven (7) checks subject of this
case. She, however, claims that the issuance of the checks was under the
impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She would also have the Court believe that there was
no valuable consideration in the issuance of the checks.
However, except for the defenses claim of uncontrollable fear of a greater
injury or avoidance of a greater evil or injury, all the grounds raised involve
factual issues which are best determined by the trial court. And, as
previously intimated, the trial court had in fact discarded the theory of the
defense and rendered judgment accordingly.
Moreover, these arguments are a mere rehash of arguments
unsuccessfully raised before the trial court and the Court of Appeals. They
likewise put to issue factual questions already passed upon twice below,
rather than questions of law appropriate for review under a Rule 45 petition.

The only question of law raisedwhether the defense of uncontrollable fear

is tenable to warrant her exemption from criminal liabilityhas to be resolved
in the negative. For this exempting circumstance to be invoked successfully,
the following requisites must concur: (1) existence of an uncontrollable fear;
(2) the fear must be real and imminent; and (3) the fear of an injury is
greater than or at least equal to that committed.[24]
It must appear that the threat that caused the uncontrollable fear is of
such gravity and imminence that the ordinary man would have succumbed
to it.[25] It should be based on a real, imminent or reasonable fear for ones life
or limb.[26] A mere threat of a future injury is not enough. It should not be
speculative, fanciful, or remote.[27] A person invoking uncontrollable fear
must show therefore that the compulsion was such that it reduced him to a
mere instrument acting not only without will but against his will as well. [28] It
must be of such character as to leave no opportunity to the accused for
escape.[29]
In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checksa condition
the hospital allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might deteriorate further due to
the inhumane treatment of the hospital or worse, her mother might commit
suicide. This is speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the mothers illness was so lifethreatening such that her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-grounded apprehension of
her death. Secondly, it is not the laws intent to say that any fear exempts
one from criminal liability much less petitioners flimsy fear that her mother
might commit suicide. In other words, the fear she invokes was not
impending or insuperable as to deprive her of all volition and to make her a
mere instrument without will, moved exclusively by the hospitals threats or
demands.
Ty has also failed to convince the Court that she was left with no choice
but to commit a crime. She did not take advantage of the many opportunities
available to her to avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required prior to the
discharge of her mother may be in the form of postdated checks or jewelry.

[30]

And if indeed she was coerced to open an account with the bank and
issue the checks, she had all the opportunity to leave the scene to avoid
involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks
without funds may result in a violation of B.P. 22. She even testified that her
counsel advised her not to open a current account nor issue postdated
checks because the moment I will not have funds it will be a big problem.
[31]
Besides, apart from petitioners bare assertion, the record is bereft of any
evidence to corroborate and bolster her claim that she was compelled or
coerced to cooperate with and give in to the hospitals demands.
Ty
likewise
suggests
in
the
prefatory
statement
of
her Petition and Memorandum that the justifying circumstance of state of
necessity under par. 4, Art. 11 of the Revised Penal Code may find
application in this case.
We do not agree. The law prescribes the presence of three requisites to
exempt the actor from liability under this paragraph: (1) that the evil sought
to be avoided actually exists; (2) that the injury feared be greater than the
one done to avoid it; (3) that there be no other practical and less harmful
means of preventing it.[32]
In the instant case, the evil sought to be avoided is merely expected or
anticipated. If the evil sought to be avoided is merely expected or
anticipated or may happen in the future, this defense is not applicable. [33] Ty
could have taken advantage of an available option to avoid committing a
crime. By her own admission, she had the choice to give jewelry or other
forms of security instead of postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the greater
injury feared should not have been brought about by the negligence or
imprudence, more so, the willful inaction of the actor. [34] In this case, the
issuance of the bounced checks was brought about by Tys own failure to pay
her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state
of necessity to absolve her of liability. It would not have been half as bizarre
had Ty been able to prove that the issuance of the bounced checks was done
without her full volition. Under the circumstances, however, it is quite clear

that neither uncontrollable fear nor avoidance of a greater evil or injury

prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in the
Civil Case[35] for damages filed by Tys mother against the hospital is wholly
irrelevant for purposes of disposing the case at bench. While the findings
therein may establish a claim for damages which, we may add, need only be
supported by a preponderance of evidence, it does not necessarily engender
reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of the
checks, in the absence of evidence to the contrary, that the same was issued
for valuable consideration.[36] Section 24[37] of the Negotiable Instruments Law
creates a presumption that every party to an instrument acquired the same
for a consideration[38] or for value.[39] In alleging otherwise, Ty has the onus to
prove that the checks were issued without consideration. She must present
convincing evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her
burden of proof. Valuable consideration may in general terms, be said to
consist either in some right, interest, profit, or benefit accruing to the party
who makes the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or undertaken by the
other aide. Simply defined, valuable consideration means an obligation to
give, to do, or not to do in favor of the party who makes the contract, such as
the maker or indorser.[40]
In this case, Tys mother and sister availed of the services and the
facilities of the hospital. For the care given to her kin, Ty had a legitimate
obligation to pay the hospital by virtue of her relationship with them and by
force of her signature on her mothers Contract of Admission acknowledging
responsibility for payment, and on the promissory note she executed in favor
of the hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her
personal obligation because she was not the patient, and therefore there was
no consideration for the checks, the case of Bridges v. Vann, et al.[41] tells us
that it is no defense to an action on a promissory note for the maker to say
that there was no consideration which was beneficial to him personally; it is
sufficient if the consideration was a benefit conferred upon a third person, or
a detriment suffered by the promisee, at the instance of the promissor. It is

enough if the obligee foregoes some right or privilege or suffers some

detriment and the release and extinguishment of the original obligation of
George Vann, Sr., for that of appellants meets the requirement.Appellee
accepted one debtor in place of another and gave up a valid, subsisting
obligation for the note executed by the appellants. This, of itself, is sufficient
consideration for the new notes.
At any rate, the law punishes the mere act of issuing a bouncing check,
not the purpose for which it was issued nor the terms and conditions relating
to its issuance.[42] B.P. 22 does not make any distinction as to whether the
checks within its contemplation are issued in payment of an obligation or to
merely guarantee the obligation.[43] The thrust of the law is to prohibit the
making of worthless checks and putting them into circulation. [44] As this Court
held in Lim v. People of the Philippines,[45] what is primordial is that such
issued checks were worthless and the fact of its worthlessness is known to
the appellant at the time of their issuance, a required element under B.P. Blg.
22.
The law itself creates a prima facie presumption of knowledge of
insufficiency of funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. The making, drawing
and issuance of a check payment of which is refused by the drawee bank
because of insufficient funds in or credit with such bank, when presented
within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless
such maker or drawer pays the holder thereof the amount due thereon, or
makes arrangements for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been
paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.[46] If not rebutted, it suffices to sustain a conviction.[47]
Petitioner likewise opines that the payee was aware of the fact that she
did not have sufficient funds with the drawee bank and such knowledge
necessarily exonerates her liability.
The knowledge of the payee of the insufficiency or lack of funds of the
drawer with the drawee bank is immaterial as deceit is not an essential
element of an offense penalized by B.P. 22. The gravamen of the offense is

the issuance of a bad check, hence, malice and intent in the issuance thereof
is inconsequential.[48]
In addition, Ty invokes our ruling in Magno v. Court of Appeals [49] wherein
this Court inquired into the true nature of transaction between the drawer
and the payee and finally acquitted the accused, to persuade the Court that
the circumstances surrounding her case deserve special attention and do not
warrant a strict and mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts
therein obtaining are different from those established in the instant
petition. In the 1992 case, the bounced checks were issued to cover a
warranty deposit in a lease contract, where the lessor-supplier was also the
financier of the deposit. It was a modus operandi whereby the supplier was
able to sell or lease the goods while privately financing those in desperate
need so they may be accommodated. The maker of the check thus became
an unwilling victim of a lease agreement under the guise of a lease-purchase
agreement. The maker did not benefit at all from the deposit, since the
checks were used as collateral for an accommodation and not to cover the
receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an
actual account or for value. Substantial evidence, as found by the trial court
and Court of Appeals, has established that the checks were issued in
payment of the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting the penalty of
imprisonment, absent any proof that petitioner was not a first-time offender
nor that she acted in bad faith.Administrative Circular 12-2000, [50] adopting
the rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the
non-imposition of the penalty of imprisonment in B.P. 22 cases subject to
certain conditions. However, the Court resolves to modify the penalty in view
of Administrative Circular 13-2001[53] which clarified Administrative 122000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the

circumstances of both the offense and the offender clearly indicate good
faith or a clear mistake of fact without taint of negligence, the imposition of a
fine alone should be considered as the more appropriate penalty. Needless to
say, the determination of whether circumstances warrant the imposition of a
fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No.
12-2000 ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does
not remove imprisonment as an alternative penalty for violations of B.P. 22;
(2) the judges concerned may, in the exercise of sound discretion, and taking
into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise be
contrary to the imperatives of justice; (3) should only a fine be imposed and
the accused unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment.
[54]

WHEREFORE, the instant Petition is DENIED and the assailed Decision of

the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty
GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent
to double the amount of each dishonored check subject of the seven cases at
bar with subsidiary imprisonment in case of insolvency in accordance with
Article 39 of the Revised Penal Code. She is also ordered to pay private
complainant, Manila Doctors Hospital, the amount of Two Hundred Ten
Thousand Pesos (P210,000.00) representing the total amount of the
dishonored checks. Costs against the petitioner.
SO ORDERED.

PEOPLE
OF
PHILIPPINES,

THE

G.R. No. 184343

Plaintiff-Appellee,
Present:

QUISUMBING, J.,*
- versus -

CARPIO,**
CARPIO MORALES,***
CHICO-NAZARIO, and
Acting Chairperson,
PERALTA, JJ.

JESUS DOMINGO,
Accused-Appellant.

Promulgated:

March 2, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Appellant Jesus Domingo assails the Decision[1] of the Court of Appeals

dated 30 April 2008 in CA-G.R. CR No. 30511, modifying the
Decision[2] dated 13 November 2006 of Branch 13 of the Regional Trial Court
(RTC) of Malolos, Bulacan. The Court of Appeals found appellant guilty
beyond reasonable doubt of murder in Criminal Cases No. 1496-M-2000 and
No. 1497-M-2000, attempted murder in Criminal Cases No. 1498-M-2000 and
No. 1501-M-2000, frustrated murder in Criminal Case No. 1500-M-2000, and
frustrated homicide in Criminal Case No. 1499-M-2000.

On 7 March 2003, six Informations[3] were filed before the RTC charging
appellant with the following offenses:

Criminal Case No. 1496-M-2000 for Murder

That on or about the 29 th day of March 2000, in the
municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with a kitchen knife and screw driver and with
intent to kill one Marvin G. Indon, with evident premeditation,
treachery and taking advantage of superior strength, did then
and there willfully, unlawfully and feloniously attack, assault,
stab and hit with the kitchen knife and screw driver said Marvin
G. Indon, hitting him on his body thereby inflicting thereon
mortal wounds which directly caused his death.

Criminal Case No. 1497-M-2000 for Murder

That on or about the 29 th day of March 2000, in the
municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with a kitchen knife and screw driver and with
intent to kill one Melissa G. Indon, with evident premeditation,
treachery and taking advantage of superior strength, did then
and there willfully, unlawfully and feloniously attack, assault,
stab and hit with the kitchen knife and screw driver said Melissa
G. Indon, hitting her on different parts of her body thereby
inflicting thereon mortal wounds which directly caused her death.

Criminal Case No. 1498-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the
municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with kitchen knife and screw driver, did then and
there willfully, unlawfully and feloniously, with evident
premeditation and treachery attack, assault and hit with the said
screw driver one Michelle G. Indon, a minor of 9 years old, hitting
her on her back and buttocks, thereby inflicting on her serious
physical injuries which ordinarily would have caused the death of
the said Michelle G. Indon, thus performing all the acts of
execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of
causes independent of his will, this is, by the timely and able
medical assistance rendered to said Michelle G. Indon.

Criminal Case No. 1499-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the
municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with a kitchen knife and screw driver, did then
and there willfully, unlawfully and feloniously, with evident
premeditation and treachery, attack, assault, stab and hit with
the said kitchen knife and screw driver one Ronaldo Galvez,
hitting him on different part of his body, thereby inflicting on him
serious physical injuries which ordinarily would have caused the
death of Ronaldo Galvez, thus performing all the acts of
execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of
causes independent of his will, that is, by the timely and able
medical assistance rendered to said Ronaldo Galvez.

Criminal Case No. 1500-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the

municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with a kitchen knife and screw driver, did then
and there willfully, unlawfully and feloniously, with evident
premeditation and treachery, attack, assault, stab and hit with
the said kitchen knife and screw driver one Raquel Gatpandan
Indon, hitting her on the different parts of her body, thereby
inflicting on her serious physical injuries which ordinarily would
have caused the death of the said Raquel Gatpandan Indon, thus
performing all the acts of execution which should have produced
the crime of murder as a consequence, but nevertheless did not
produce it by reason of causes independent of his will, that is, by
the timely and able medical assistance rendered to said Raquel
Gatpandan Indon.

Criminal Case No. 1501-M-2000 for Attempted Murder

That on or about the 29th day of March 2000, in
the municipality of San Rafael, Province of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a kettle and with intent to kill one
Jeffer G. Indon, did then and there willfully, unlawfully and
feloniously, with evident premeditation and treachery,
commence the commission of murder directly by overt acts, that
is by attacking, assaulting, and hitting the said Jeffer G. Indon, a
2 year old boy, with the kettle, hitting the latter on his head,
thereby inflicting upon him physical injuries and if the accused
was not able to accomplish his purpose, that is to kill the said
Jeffer G. Indon, it was not because of his voluntary desistance but
due to the timely intervention of third persons.

On 7 September 2000, appellant, with the assistance of counsel, was

arraigned and he entered separate pleas of Not Guilty to the crimes
charged. Thereafter, pre-trial conference was held, and trial ensued
accordingly.[4]

Evidence for the prosecution consisted of the testimonies of complainants

Raquel Indon, Jeffer Indon, and Michelle Indon; Dr. Jacinto Caluag; Police
Officer (PO) 3 Asher Villegas and PO2 Rogelio Santos.

Complainant Raquel Indon testified that between 1:00 a.m. and 2:00
a.m. of 29 March 2000, she and her minor children Melissa, Michelle, Marvin
and Jeffer were sleeping inside their house in Caingin, San Rafael, Bulacan,
when she was awakened by the sound of appellant kicking their door
open. Raquel narrated that she immediately recognized the accused, since
the kitchen light illuminated his face. Armed with a screwdriver and a kitchen
knife, appellant cut the cord of the mosquito net and repeatedly stabbed her,
using the six-inch screwdriver, and hit her right arm three times. She
screamed and was heard by her sister-in-law, whose house was contiguous
to theirs. When her sister-in-law asked her for the identity of the assailant,
she immediately identified herein appellant as Doser, a name by which he is
known in the community. Appellant was angered by her reply and
said, Anong Doser? and thereafter pulled a kitchen knife from his right side
and stabbed her on the stomach. When she tried to escape from the room,
four-year-old Marvin rushed towards her. She then grabbed him and ran
towards the gate. However, before reaching the gate, she fell down and
appellant stabbed her right leg. The appellant then proceeded to stab
Marvin, hitting the latter twice on the arm and twice on his left chest. Marvin
died on 3 April 2000 as a result of these injuries. After stabbing Marvin,
appellant returned back to the house, towards Raquels two daughters
Michelle and Melissa. When Raquel pleaded that the appellant spare her
daughters lives, he retorted: Ngayon pa, nagawa ko na. Melissa died because
of the stab wounds that the appellant inflicted on her; while Michelle, who
was able to hide under the papag merely sustained serious physical
injuries. The appellant also attacked two-year-old Jeffer by striking him on the
head with the screwdriver, but the latter managed to run to the house of
Raquels sister-in-law. Raquel got up and ran for help, but the appellant
followed her. Their neighbor, Ronaldo Galvez, came to their rescue and tried
to subdue the appellant. Raquel, thereafter, lost consciousness. She also
relayed that she was later informed that a struggle ensued between
appellant and Galvez. Appellant inflicted wounds on Galvezs upper left chest
and arms, after which Galvez was able to hit appellant with a piece of wood,
which rendered the latter unconscious. Raquel, Melissa, Marvin, Jeffer, Galvez
and the appellant were taken to the hospital.[5]

Raquel also testified that she spent P15,000.00 for the casket of
Melissa Indon, P27,000.00 for the burial expenses of Melissa Indon and
Marvin Indon, and approximatelyP30,000.00 for the food served during their
wake. She also stated that because of her stab wounds, she
spent P90,000.00 for hospitalization expenses and medicines. However, the
receipts
were
lost
except
those
issued
[6]
by Sagrada Familia Hospital and Bulacan Provincial Hospital.

Jeffer Indon, who was five years old at the time he testified, stated that
the scar on his forehead was the result of the stab wound inflicted by
Doser. However, on cross-examination, he admitted that he did not know
who stabbed him.[7]
Michelle Indon identified the appellant as the man who stabbed her
mother, her brother Marvin and her sister Melissa. She testified that the
appellant stabbed her in the back once. Thereafter, she hid under
the papag. She related that she did not go to the hospital anymore, because
a certain Nanang Ella had already seen to her stab wound.[8]

Dr. Jacinto Caluag stated under oath that he treated Raquel Indon for
multiple stab wounds. He testified that he also assisted in the operation on
Raquel to repair her liver and gallbladder, which were damaged. He also
disclosed that Raquel would have gone into shock and died had she not been
given medical attention.[9]

Police officers Asher Villegas and Rogelio Santos testified that they
proceeded to the scene of the crime after the neighbors of the complainant
reported the incident. When they arrived at the crime scene, appellant was
already tied up. They took pictures of the victims, while the kitchen knife and
the screwdriver allegedly used by the appellant were turned over to Police
Officer Villegas. The complainants and the appellant were then brought to
the hospital. They recorded the incident in the Police Blotter and prepared
the statements of the witnesses. After the accused was treated for injuries,
he was brought to the police station and detained. When asked why he
committed the crime, accused denied knowledge of what happened.[10]

In an Order dated 10 July 2003, the trial court ordered that Ronaldo
Galvezs testimony during his direct examination be stricken off the records
due to his absences on the days he was scheduled to be cross-examined. [11]

The documentary evidence offered by the prosecution included the

following: (1) the sketches of Raquel Indons house, to prove that the light
from the kitchen allowed her to identify the appellant, marked as Exhibits A
to A-6; (2) the Death Certificate of Marvin Indon marked as Exhibit D; (3) the
Medico-Legal Certificates of Raquel Indon, Marvin Indon, Jeffer Indon, and
Ronaldo Galvez marked as Exhibits E, F, H, and L, respectively; (4) the Birth
Certificates of Marvin Indon and Michelle Indon marked as Exhibits B and N;
(5) pictures of Melissa Indons lifeless body marked as Exhibits G and O; (6)
Sworn Statements of Ronaldo Galvez and Michelle Indon marked as Exhibits
K and M; (7) Statement of Account of the Medical Expenses incurred by
Raquel Indon, issued by Sagrada Familia Hospital in the amount
of P38,500.00, marked as Exhibit I; and (8) Statement of Account of the
Medical Expenses incurred by Raquel Indon, issued by the Bulacan Provincial
Hospital, in the amount of P7,843.00, marked as Exhibit J.[12]

In his defense, appellant testified that prior to the incident, he was in

good terms with the Indon family and that he had no record of mental
illness. However on 20 March 2000, he went to East Avenue Medical Center
for a medical check-up, and he was advised to have an operation. He
suffered from sleeplessness, lack of appetite, and nervousness.Occasionally,
a voice would tell him to kill. He averred that when he regained his memory,
one week had already passed since the incidents, and he was already
detained. He only came to know of the incidents from his sister and his
children who visited him. On cross-examination he admitted that when he
regained his memory, he did not even ask the police officers why he was
incarcerated.[13]
Dr. Regienald Afroilan, a witness for the defense, also testified that
appellant was first brought to the National Center for Mental Health (Center)
in August 2004 for a psychiatric evaluation, psychological examination and
final testing to determine if he could stand trial. Dr. Afroilan stated that
based on his evaluation, appellant suffered from Schizophrenia, a mental
disorder characterized by the presence of delusions and or hallucinations,
disorganized speech and behavior, poor impulse control and low frustration
tolerance. He could not find out when the appellant started to suffer this

illness, but the symptoms of Schizophrenia which were manifested by

patient indicated that he suffered from the illness six months before
Center examined the appellant. On cross-examination, he clarified that
evaluation finding that appellant suffered from Schizophrenia covered
period when the appellant submitted himself to examination.[14]

the
the
the
the

In a Decision dated 13 November 2006, the RTC decreed that the

appellant was guilty beyond reasonable doubt of homicide in Criminal Cases
No. 1496-M-00 and No. 1497-M-00, frustrated homicide in Criminal Cases No.
1499-M-00 and No. 1500-M-00, and attempted homicide in Criminal Cases
No. 1498-M-00 and No. 1501-M-00. The RTC gave credence to the principal
eyewitness, Raquel Indon, whose testimony was corroborated by Michelle
Indon, regarding appellants attack on 29 March 2000. The trial court found
the appellants defense of insanity unmeritorious, since what was presented
was proof of appellants mental disorder that existed five years after the
incident, but not at the time the crimes were committed. The RTC also
considered it crucial that appellant had the presence of mind to respond to
Raquel Indons pleas that her daughters be spared by saying, Ngayon pa,
nagawa ko na. It also noted that based on the psychiatrists findings, the
appellant was competent to stand trial. However, the trial court declared that
there were no qualifying circumstances to support the charges of Murder,
Frustrated Murder or Attempted Murder.[15] The dispositive part of the
Decision dated 13 November 2006reads:

WHEREFORE, premises considered, the Court finds the accused

guilty beyond reasonable doubt of the crime of:

a) In Crim. Case No. 1496-M-00, Homicide, for the death of

Marvin G. Indon, minor and hereby sentences him to suffer the
indeterminate penalty of seven (7) years of prision mayor as
minimum to thirteen (13) years of reclusion temporal as
maximum; and to indemnify the heirs of the deceased in the
amount of P75,000.00.

b) In Crim. Case No. 1497-M-00, Homicide, for the death of

Melissa Indon, and hereby sentences him to suffer the

indeterminate penalty of seven (7) years of prision mayor as

minimum to thirteen (13) years of reclusion temporal as
maximum; and to indemnify the heirs of the deceased in the
amount of P75,000.00.

c) In Crim. Case No. 1498-M-00, Attempted Homicide, and hereby

sentences him to suffer the indeterminate penalty of six (6)
months of aresto mayor as minimum to five (5) years of prision
correccional as maximum; and to indemnify the private
complainant in the amount of P10,000.00.

d) In Crim. Case No. 1499-M-00, Frustrated Homicide, and hereby

sentences him to suffer the indeterminate penalty of five (5)
years of prision correccional as minimum to eight (8) years
ofprision correccional as maximum; and to indemnify the private
complainant Ronaldo Galvez in the amount of P30,000.00.

e) In Crim. Case No. 1500-M-00, Frustrated Homicide, and hereby

sentences him to suffer the indeterminate penalty of five (5)
years of prision correccional as minimum to eight (8)
years ofprision correccional as maximum; and to indemnify the
private complainant Raquel Gatpandan Indon in the amount
of P30,000.00. Likewise, accused is further directed to pay to the
private complainant herein the sum of P90,000.00 to cover
hospitalization and medical expenses; P42,000.00 to cover the
casket and burial expenses for Melissa and Marvin,
and P30,000.00 for food expenses, all by way of actual damages.

f) In Crim. Case No. 1501-M-00, Attempted Homicide, and

hereby sentences him to suffer the indeterminate penalty of six
(6) months of aresto mayor as minimum to five (5) years
ofprision correccional as maximum, and to indemnify the private
complainant in the amount of P10,000.00.[16]

The appellant filed an appeal before the Court of Appeals docketed as

CA-G.R. CR No. 30511, wherein he faulted the RTC for not taking note of the
inconsistencies in Raquel Indons testimony and for not giving due weight to
his defense of insanity.[17] In a Decision dated 30 April 2008, the appellate
court adjudged that Raquel Indons testimony was credible, and that the
inconsistency pointed out by appellantwhether or not Raquel was standing
up or lying down when appellant stabbed her legsreferred to minor
details. Moreover, insanity exempts the accused only when the finding of
mental disorder refers to appellants state of mind immediately before or at
the very moment of the commission of the crime. This was not the case
when appellant was first medically examined more than four years after the
commission of the crimes. Appellants response to Raquel Indons pleas also
proved that his faculties of reasoning were unimpaired at the time of the
attack against Raquels children.[18]

The Court of Appeals nevertheless modified the RTCs Decision dated

13 November 2006 and declared that the qualifying circumstance of
treachery, which was alleged in the six Informations along with evident premeditation, was adequately proven by the prosecution. Raquel Indon,
Michelle Indon, Melissa Indon, Marvin Indon, and Jeffer Indon were merely
sleeping inside their bedroom and had not even given the slightest
provocation when appellant attacked them without warning. Furthermore,
the killing of Marvin Indon and Melissa Indon, both minors who could not be
expected to defend themselves against an adult, was considered
treacherous, and would sustain a conviction for murder.The penalties
imposed were adjusted accordingly. Appellants conviction for frustrated
homicide in Criminal Case No. 1499-M-2000 was affirmed, since prosecution
failed to prove appellants treachery or evident premeditation in his assault
against Rolando Galvez, who came to the scene of the crime to subdue the
appellant.[19]

The Court of Appeals also modified the trial courts award of damages. It
reduced the civil indemnity of P75,000.00 awarded by the trial court,
occasioned by the deaths of Marvin Indon and Melissa Indon, to P50,000.00
and awarded the heirs of each murder victim moral damages in the amount
of P50,000.00. The awards for funeral expenses ofP42,000.00 and food
expenses of P30,000.00 were deleted by the appellate court for lack of

sufficient evidence to support the same. The appellate court awarded Raquel
Indon civil indemnity of P30,000.00 and moral damages of P25,000.00, but
reduced the actual damages of P90,000.00 awarded by the RTC
to P46,343.00, in accordance with the Statement of Accounts
from Sagrada Familia Hospital and Bulacan Provincial Hospital. It affirmed the
trial courts award for moral damages of P10,000.00 in favor of Michelle Indon
and P10,000.00 in favor of Jeffer Indon. Moral damages of P25,000.00 were
also awarded by the appellate court in favor of Ronaldo Galvez. [20]

In the Decision dated 30 April 2008, the fallo reads:

WHEREFORE, the appealed Decision dated November

2006 of the trial court is modified as follows:

13,

1) In Criminal Case No. 1496-M-2000, accused-appellant

Jesus Domingo is convicted of the crime of murder and
sentenced to suffer the penalty of reclusion perpetua and to
indemnify the heirs of the deceased Marvin Indon the amounts
of P50,000.00 as civil indemnity and P50,000.00 as moral
damages. The trial courts award of funeral and food expenses
of P42,000.00 andP30,000.00 respectively, are hereby deleted.

2) In Criminal Case No. 1497-M-2000, accused-appellant

Jesus Domingo is convicted of the crime of murder and is
sentenced to suffer the penalty of reclusion perpetua and to
indemnify the heirs of the deceased Melissa Indon the amounts
of P50,000.00 as civil indemnity and P50,000.00 as moral
damages.

3) In Criminal Case No. 1498-M-2000, accused-appellant

Jose Domingo is convicted of the crime of attempted murder and
is sentenced to an indeterminate penalty of six (6) years
ofprision correccional maximum, as the minimum penalty, to ten

(10) years of prision mayor medium, as the maximum penalty

and to pay Michelle Indon P10,000.00 as moral damages.

4) In Criminal Case No. 1499-M-2000, accused-appellant

Jose Domingo is convicted of the crime of frustrated homicide
and is sentenced to an indeterminate penalty of five (5) years
ofprision correccional as minimum to eight (8) years of prision
mayor as maximum and to pay Ronaldo Galvez P25,000.00 as
moral damages.

5) In Criminal Case No. 1500-M-2000, accused-appellant

Jose Domingo is convicted of the crime of frustrated murder and
is sentenced to an indeterminate penalty of twelve (12) years
of prision mayor maximum, as the minimum penalty, to
seventeen (17) years and four (4) months of reclusion
temporal medium, as the maximum penalty and to pay Raquel
Indon the amount of P30,000.00 as civil indemnity, P46, 343.00
as actual damages and P25,000.00 as moral damages.

6) In Criminal Case No. 1501-M-2000, accused-appellant

Jose Domingo is convicted of the crime of attempted murder and
is sentenced to an indeterminate penalty of six (6) years
ofprision correccional maximum, as the minimum penalty, to ten
(10) years of prision mayor medium, as the maximum penalty
and to pay Jefferson (sic) Indon P10,000.00 as moral damages.[21]

Hence, the present petition where the appellant reiterates the

assignment of errors that were raised before the Court of Appeals, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT

OF THE ACCUSED-APPELLANT FOR THE CRIMES CHARGED HAS
BEEN PROVEN BEYOND REASONABLE DOUBT; and

II

ASSUMING THAT THE ACCUSED-APPELLANT COMMITTED THE

CRIMES CHARGED, THE TRIAL COURT GRAVELY ERRED IN NOT
EXEMPTING HIM FROM CRIMINAL LIABILITY IN VIEW OF HIS
INSANITY AT THE TIME OF THE COMMISSION OF THE SAME.[22]

This Court affirms the judgment of conviction.

The testimony of the principal witness of the prosecution, Raquel

Indon, is assailed by appellant for not being credible due to an inconsistency
in her testimony and a lack of conformity with the experience of ordinary
men.

Appellant refers to Raquels testimony during cross-examination

wherein she narrated that after the appellant entered her bedroom, she
screamed. Her sister-in-law, who lived next door, responded by asking
Raquel who her assailant was, and the latter identified the
appellant. Appellant claims that the conversation between Raquel and her
sister-in-law was contrary to the ordinary course of things, and that the initial

reaction of people in such a situation would be to ask for help from other
people in order to save those who are in danger. Secondly, Raquel also
testified during cross-examination that the appellant stabbed the front of her
legs when she fell down. It is also argued that the appellant could not have
stabbed the front of her legs, since she would be lying on front of her legs
when she fell down.

This Court finds no merit in these arguments. To begin with, there was
nothing out of the ordinary as regards Raquels testimony on these two
matters. First, there was nothing unusual about the sister-in-laws query as to
who was attacking Raquel. Considering that the exchange merely consisted
of this question and the reply to it, it would not even be accurate to refer to it
as a conversation. Secondly, it was not impossible for the appellant to stab
the front of Raquels legs, had her legs been positioned sideways when she
fell. But more importantly, these are peripheral details that do not affect the
substantial aspects of the incident. Raquel clearly and positively testified
that she was carrying her son Marvin when she rushed to the gate and fell
down, and the appellant stabbed her legs and thereafter proceeded to stab
Marvin who later died from the stab wounds. Her testimony was supported
by the Medico-Legal Reports marked as Exhibits E and F. Any inconsistencies
in such peripheral details would not exculpate the appellant.

Appellant also asserts that he was insane or completely deprived of

intelligence during the commission of the alleged crimes, and therefore
should be exempted from criminal liability in accordance with Article 12,
Chapter 2 of the Revised Penal Code. [23] However, this claim is not supported
by evidence.

Appellant offers his uncorroborated testimony as the only proof that he

was insane at the time he committed the crime. He testified that nine days
before he committed the crime, he suffered from lack of appetite,
sleeplessness, and anxiety. In addition, he allegedly heard voices ordering
him to kill bad people. He claims that he does not remember anything that
happened on 29 March 2000, when the crimes were committed, and that he
was already detained when he became conscious of his surroundings.

The law presumes every man to be of sound mind. Otherwise stated,

the law presumes that all acts are voluntary, and that it is improper to
presume that acts are done unconsciously. Thus, a person accused of a crime
who pleads the exempting circumstance of insanity has the burden of
proving beyond reasonable doubt that he or she was insane immediately
before or at the moment the crime was committed.[24]
Insanity exists when there is a complete deprivation of intelligence
while committing the act; i.e., when the accused is deprived of reason, he
acts without the least discernment because there is a complete absence
of power to discern, or there is total deprivation of freedom of the
will. Mere abnormality of the mental faculties is not enough, especially if
the offender has not lost consciousness of his acts. Insanity is evinced by
a deranged and perverted condition of the mental faculties and is
manifested in language and conduct. An insane person has no full and
clear understanding of the nature and consequences of his or her acts.[25]

Even assuming that appellants testimony is credible, his sleeplessness,

lack of appetite, nervousness and his hearing imaginary voices, while
suggestive of an abnormal mental condition, cannot be equated with a total
deprivation of will or an absence of the power to discern. Mere abnormality of
mental faculties will not exclude imputability. The popular conception of the
word crazy is used to describe a person or an act unnatural or out of
ordinary. Testimony that a person acted in a crazy or deranged manner days
before the commission of the crime does not conclusively prove that he is
legally insane and will not grant him or her absolution.[26]

Raquel Indons narration of the events presents evidence that is more

revealing of appellants mental state at the time the crime was
committed. Appellants reply to her pleas that her daughters lives be
spared, Ngayon pa, nagawa ko na, was a positive sign that he was aware of
what he was doing, and that his reasoning faculties were unimpaired.

The trial court found the testimony of Raquel Indon more credible than
that of the accused, and its findings were affirmed by the Court of Appeals. It
is settled that when the trial courts findings have been affirmed by the
appellate court, said findings are generally conclusive and binding upon this
Court. This Court does not generally disturb the findings of fact of the trial

court because it is in a better position to examine real evidence, as well as to

observe the demeanor of witnesses while testifying on the stand. Unless
there is a clear showing that it overlooked certain facts and circumstances
that might alter the result of the case, the findings of fact made by the trial
court will be respected and even accorded finality by this Court.[27]

It is also remarkable that appellants testimony is not supported by his

familys or intimate friends accounts of his purported insanity. Appellant
testified that he had been suffering from symptoms of insanity nine days
before the incident. Insanity may be shown by the surrounding
circumstances fairly throwing light on the subject, such as evidence of the
allegedly deranged persons general conduct and appearance, his conduct
consistent with his previous character and habits, his irrational acts and
beliefs, as well as his improvident bargains. [28] It is difficult to believe that
appellants behavior, conduct and appearance, which would denote mental
disturbance, escaped the notice of his family and friends.

Appellant draws attention to the results of the medical examination

conducted by Dr. Regienald Afroilan in 2004, showing that he was suffering
from Schizophrenia. It should be noted however that the examination was
taken four years after the crimes were committed, and that Dr. Afroilan
admitted that his findings did not include the mental state of petitioner four
years before. The alleged insanity of an accused should relate to the period
immediately before or at the very moment the felony is committed, not at
any time thereafter. Medical findings of mental disorder, referring to a period
after the time the crime was committed, will not exempt him from criminal
liability. [29]

Appellant emphasizes the fact that he was a friend of the Indon family
and would not have committed such atrocities against them, unless he was
totally deprived of reason.In People v. Madarang,[30] this Court ruled that the
fact that the accused had no quarrel with his victim prior to the killing does
not prove the unstable mental condition of the accused. Jurisprudence is
replete with cases in which lives have been terminated for the flimsiest
reasons.

This Court will now discuss the imposition of penalties and modify those
imposed by the Court of Appeals. Appellant is guilty of Murder in Criminal
Cases No. 1496-M-2000 and No. 1497-M-2000. The penalty for murder
is reclusion perpetua to death. There being neither mitigating nor
aggravating circumstances, the penalty for murder should be imposed in its
medium period, or reclusion perpetua.[31] Thus, for the murder of Marvin
Indon and Melissa Indon, the penalty imposed on appellant is two sentences
ofreclusion perpetua.

When death occurs due to a crime, the following damages may be awarded:
(1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and
(5) temperate damages.[32]

Civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime. [33] Under prevailing
jurisprudence, the award of P50,000.00 to the heirs of the victim as civil
indemnity is in order.[34] Thus, P50,000.00 is awarded to the heirs of Marvin
Indon and P50,000.00 to the heirs of Melissa Indon.

The heirs of Marvin Indon and Melissa Indon are not entitled to actual
damages, because said damages were not adequately proved. The party
seeking actual damages must produce competent proof or the best evidence
obtainable, such as receipts, to justify an award therefor. [35] The funeral
expenses, to which Raquel Indon referred in her testimony, were not
supported by receipts. Nevertheless, the award of P25,000.00 in temperate
damages for homicide or murder cases is proper when no evidence of burial
or funeral expenses is presented in the trial court. [36] Under Article 2224 of
the Civil Code, temperate damages may be recovered, as it cannot be denied
that the heirs of the victim suffered pecuniary loss although the exact
amount was not proved.[37] Thus, the heirs of Marvin Indon and Melissa Indon
are entitled to temperate damages of P25,000.00 for each death.

In cases of murder and homicide, the award of moral damages is mandatory,

without need of allegation and proof other than the death of the victim.

[38]

The award of P50,000.00 as moral damages is in order for the death for
Marvin Indon, and likewise for that of Melissa Indon.

Exemplary damages of P25,000.00 should also be awarded, since the

qualifying circumstance of treachery was firmly established. [39] Marvin Indon
and Melissa Indon were both minors when they were killed by the
appellant. The killing by an adult of a minor child is treacherous. [40] Moreover,
the victims in this case were asleep when appellant barged into their house
and attacked their family. The attack was clearly unprovoked, and they were
defenseless against him.

In Criminal Cases No. 1498-M-2000 and No. 1501-M-2000, appellant is guilty

of the Attempted Murder of Michelle Indon and Jeffer Indon. The penalty for
Attempted
Murder
is prision
correccional maximum
to prision
mayor medium. Thus, the penalty imposed on the appellant is two sentences
of six years of prision correccional, as minimum, to ten years of prision
mayor medium, as maximum, for the attempted murder of Michelle Indon
and Jeffer Indon. In addition to the moral damages of P10,000.00 for each
victim, which the Court of Appeals imposed, appellant is also ordered to pay
civil indemnity of P20,000.00[41] and exemplary damages of P25,000.00.[42]

In Criminal Case No. 1499-M-2000, appellant is convicted of the crime of

frustrated homicide of Ronaldo Galvez. The penalty for frustrated homicide,
there being no other mitigating or aggravating circumstances attending the
same, is five years of prision correccional as minimum to eight years and one
day of prision mayor as maximum. Moral damages in the amount
of P25,000.00, awarded by the Court of Appeals, are affirmed.

Appellant is guilty of Frustrated Murder in Criminal Case No. 1500-M2000. The penalty for Frustrated Murder is reclusion temporal, which must be
imposed in its medium period, considering that there were neither
aggravating nor mitigating circumstances that were proven in this case.
Applying the Indeterminate Sentence Law, appellant should be sentenced to
suffer the penalty of twelve years of prision mayor, as minimum, to
seventeen years and four months of reclusion temporal medium, as the
maximum penalty. This Court affirms the award by the Court of Appeals of

(1) Civil Indemnity in the amount of P30,000.00;[43] (2) actual damages

of P46,343.00 for medical expenses, which are supported by receipts marked
as Exhibits I and J; and (3) moral damages of P25,000.00. Appellant is also
ordered to pay exemplary damages of P25,000.00 based on the finding that
the assault against Raquel Indon was attended by treachery. [44] The essence
of treachery is that the attack is deliberate and without warning, done in a
swift and unexpected manner of execution, affording the hapless and
unsuspecting victim no chance to resist or escape. [45] At the time Raquel was
attacked, she was in her home, unarmed and sleeping with her children. She
was undoubtedly unprepared and defenseless to resist appellants attack on
her and her young children.

All the sums of money awarded to the victims and their heirs will accrue a
6% interest from the time of this Decision until fully paid.
WHEREFORE, the instant appeal is DENIED. The Decision of the Court
of Appeals dated 30 April 2008 in CA-G.R. CR No. 30511 is MODIFIED in
accordance with the hereinabove discussion on penalties and award of
damages, to wit:

1.

In Criminal Case No. 1496-M-2000, this Court additionally

awards P25,000.00 as temperate damages and P25,000.00 as
exemplary damages to the heirs of Marvin Indon.

2.

In Criminal Case No. 1497-M-2000, this Court additionally

awards P25,000.00 as temperate damages and P25,000.00 as
exemplary damages to the heirs of Melissa Indon.

3.

In Criminal Case No. 1498-M-2000, the Court additionally awards

civil indemnity of P20,000.00 and exemplary damages
of P25,000.00 to Michelle Indon.

4.

In Criminal Case No. 1499-M-2000, the appellant is sentenced to

serve an indeterminate penalty of five years of prision

correccional as minimum to eight years and one day of prision

mayor as maximum.

5.

In Criminal Case No. 1500-M-2000, this Court additionally awards

exemplary damages of P25,000.00 to Raquel Indon.

6.

In Criminal Case No. 1501-M-2000, this Court additionally awards

civil indemnity of P20,000.00 and exemplary damages
of P25,000.00 to Jeffer Indon.

No costs.

SO ORDERED.
NIEL F. LLAVE, G.R. No. 166040
Petitioner,
Present:
PANGANIBAN, C. J., Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ. *
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
April 26, 2006
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review of the Decision [1] of the Court of
Appeals (CA) in CA-G.R. CR No. 26962 affirming, with modification, the

Decision[2] of the Regional Trial Court (RTC) of Pasay City, Branch 109, in
Criminal Case No. 02-1779 convicting Petitioner Neil F. Llave of rape.
On September 27, 2002, an Information charging petitioner (then only
12 years old) with rape was filed with the RTC of Pasay City. The inculpatory
portion of the Information reads:
That on or about the 24th day of September 2002, in Pasay
City, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, NEIL LLAVE Y
FLORES, aka NIEL F. LLAVE, a minor over nine (9) years of age
and under fifteen (15) but acting with discernment, by means of
force threat and intimidation, did then and there willfully,
unlawfully, feloniously have carnal knowledge of the
complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven (7)
years of age, against her will and consent.
Contrary to law.[3]
The Case for the Prosecution
The spouses Domingo and Marilou Santos were residents of Pasay City.[4] One
of their children, Debbielyn, was born on December 8, 1994.[5] In 2002, she
was a Grade II student at the Villamor Air Base Elementary School
in Pasay City[6] and attended classes from 12:00 noon to 6:00 p.m.[7]
Domingo eked out a living as a jeepney driver, while Marilou sold quail
eggs at a nearby church.[8] Adjacent to their house was that of Teofisto
Bucud, a barbecue vendor who would usually start selling at 6:30 p.m.[9] Next
to Teofistos residence was a vacant house.[10]
Debbielyn testified that on September 24, 2002, she arrived home at past
6:00 p.m. She changed her clothes and proceeded to her mothers store.
Marilou asked her daughter to bring home the container with the unsold quail
eggs.[11] Debbielyn did as told and went on her way. As she neared the vacant
house, she saw petitioner, who suddenly pulled her behind a pile of hollow
blocks which was in front of the vacant house. There was a little light from
the lamp post.[12] She resisted to no avail.[13] Petitioner ordered her to lie
down on the cement. Petrified, she complied. He removed her shorts and
underwear then removed his own. He got on top of her. [14] She felt his penis
being inserted into her vagina. He kissed her. [15] She felt pain and cried.
[16]
She was sure there were passersby on the street near the vacant house at
the time.

It was then that Teofisto came out of their house and heard the girls cries. He
rushed to the place and saw petitioner on top of Debbielyn, naked from the
waist down. Teofisto shouted at petitioner, and the latter fled from the
scene. Teofisto told Debbielyn to inform her parents about what happened.
[17]
She told her father about the incident. [18] Her parents later reported what
happened to the police authorities.[19] Debbielyn told the police that
petitioner was a bad boy because he was a rapist.[20]
Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went
out of their house to get his barbecue grill. He heard someone moaning from
within the adjacent vacant house.[21] He rushed to the place and saw
petitioner, naked from waist down, on top of Debbielyn, making pumping
motions on her anus.[22] The girl was crying. He shouted at petitioner, Hoy,
bakit ginawa mo yan?[23] Petitioner hurriedly put his shorts on and fled.
[24]
Neighbors who had heard Teofisto shouting arrived. [25] Later, Teofisto gave
a written statement to the police investigator regarding the incident.[26]
Domingo Santos testified that at about 6:30 p.m. that day, he was inside
their house. His daughter, Kimberly Rose, suddenly told him that Debbielyn
had been raped near the vacant house by petitioner. [27] He rushed to the
place and found her daughter crying. When he asked her what happened,
she replied that she had been abused. He brought Debbielyn to their house
and then left.[28] He then looked for petitioner and found him at his
grandmothers
house.
A barangay
tanod brought
petitioner
to
the barangay hall.[29]On September 25, 2002, he brought her daughter to the
Philippine General Hospital Child Protection Unit at Taft Avenue, Manila where
she was examined by Dr. Mariella S. Castillo.
Dr. Castillo declared on the witness stand that she was a physician at the
Child Protection Unit of the Philippine General Hospital. On September 25,
2002, she interviewed the victim who told her Masakit ang pepe ko, Ni-rape
ako.[30] Dr. Castillo also conducted a genital examination on the child, and
found no injury on the hymen and perineum, but found scanty yellowish
discharge between the labia minora.[31] There was also a fresh abrasion of the
perineal skin at 1 oclock position near the anal opening.[32] She declared that
the findings support the theory that blunt force or penetrating trauma (such
as an erect penis, finger, or any other foreign body [33]) was applied to the
perineal area[34] not more than six or seven days before. [35] The abrasion
could have been caused on September 24, 2002. She found no spermatozoa
in the vaginal area or injury at the external genitalia; [36] neither did she find
any other injury or abrasion on the other parts of the victims body. [37] She
concluded that her findings were consistent with the victims claim that she
was sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on September
24, 2002, Marilou Santos arrived at the barangay hall and reported that her

daughter had been raped by petitioner who was then in his aunts house
at Cadena de Amor Street. Barangay Captain Greg Florante ordered him
and Barangay Tanod Efren Gonzales to proceed to Cadena de Amor
Street and take the boy into custody, and they did as they were told.[38]
The Case for the Accused
Petitioner, through counsel, presented Dr. Castillo as witness. She
declared that the abrasions in the perineal area could have been caused
while the offender was on top of the victim. [39] She explained that the
distance between the anus and the genital area is between 2.5 to 3
centimeters.[40] The abrasion was located at of an inch from the anal orifice.
Petitioner testified and declared that he was a freshman at
the Pasay City South High School.[41] He had been one of the three
outstanding students in grade school and received awards such as Best in
Mathematics.[42] He also finished a computer course and received a
Certificate of Completion from the Philippine Air Force Management
Information Center.[43] He denied having raped the private complainant. He
declared that at 6:30 p.m. on September 24, 2002, he was outside of their
house to buy rice in thecarinderia[44] and he saw her on his way back.[45] He
also met his father, who asked him what he had done to their neighbor. He
was also told that the victims father was so angry that the latter wanted to
kill him.[46] He did not ask his father for the name of the angry neighbor. He
was also told to pass by Cadena de Amor Street in going to his aunts
house. Petitioner also declared that his mother prodded him to go to his
aunts house.[47] Later, Domingo and Barangay Tanod Jorge Dominguez arrived
at his aunts house and brought him to the barangay hall. He did not know of
any reason why Debbielyn and her parents would charge him with rape.[48]
Petitioner also declared that he played cards with Debbielyn.[49] While
confined at the Pasay City Youth Home during trial, he had a crush on Issa, a
young female inmate.Using a piece of broken glass (bubog) about half-aninch long, he inscribed her name on his right thigh, left leg and left arm.[50]
Nida Llave testified and identified her sons Certificate of Live Birth, in
which it appears that he was born on March 6, 1990.[51] She declared that at
about 6:30 p.m. onSeptember 24, 2000, Marilou Santos and Marilyn Bucud
arrived in their house looking for her son. According to Marilyn, her son had
raped the private complainant. She went to their house to look for her son
and came across Domingo Santos who threatened to kill her son. She and
her husband proceeded to the house of his sister Josefina at Cadena de Amor
Street where petitioner had hidden for a while.[52]
At the conclusion of the trial, the court rendered judgment convicting
Neil of the crime charged. The decretal portion of the decision reads:

FROM ALL THE FOREGOING, the Court opines that the

prosecution has proven the guilt of the xxx Niel Llave y Flores
beyond reasonable doubt when he forcibly pulled the
complainant towards the vacant lot, laid on top of her and had
carnal knowledge with the [complainant] against her will and
consent who is only seven (7) years old (sic). Moreover, he being
a minor, he cannot be meted with the Death penalty.
WHEREFORE, the Court finds the CICL [Child in Conflict
with the Law] Niel Llave y Flores guilty beyond reasonable doubt,
and crediting him with the special mitigating circumstance of
minority, this Court hereby sentences him to prision
mayor minimum, Six (6) years and One (1) day to Eight (8) years,
and pay civil indemnity of Fifty Thousand Pesos (Php50,000.00).
[53]

The trial court declared that based on the evidence of the prosecution
that petitioner pushed the victim towards the vacant house and sexually
abused her, petitioner acted with discernment. It also considered petitioners
declaration that he had been a consistent honor student.[54]
Petitioner appealed the decision to the CA, where he averred the
following in his Brief as appellant therein:
I
THE LOWER COURT ERRED WHEN IT DISREGARDED THE
MATERIAL
INCONSISTENCIES
OF
THE
TESTIMONY
OF
COMPLAINING WITNESS WITH THAT OF THE MEDICAL REPORT ON
THE FACTUAL ALLEGATION OF BLEEDING.
II
THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE
TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD
WHO HAS REASON TO FABRICATE A SCENARIO AGAINST
ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA
AGAINST THE LATTERS FAMILY/RELATIVES.
III
THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE
PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE, BEING
CONTRARY TO THE PHYSICAL EVIDENCE.[55]

The CA rendered judgment affirming the decision with modification as

to the penalty meted on him.
WHEREFORE, the decision subject of the instant appeal is
hereby MODIFIED in that the accused-appellant is sentenced to
an indeterminate penalty of two (2) years and four (4) months
of prision correccional medium as the minimum to eight (8) years
and one (1) day of prision mayor medium as the maximum.
Additionally, the accused-appellant is ordered to pay the
complaining witness the amount of P50,000 by way of moral
damages and P20,000 by way of exemplary damages.
SO ORDERED.[56]
Petitioner filed a Motion for the Reconsideration, [57]contending that the
prosecution failed to adduce proof that he acted with discernment; hence, he
should be acquitted. The appellate court denied the motion in a
Resolution[58] dated November 12, 2004 on the following finding:
As regards the issue of whether the accused-appellant
acted with discernment, his conduct during and after the crime
betrays the theory that as a minor, the accused-appellant does
not have the mental faculty to grasp the propriety and
consequences of the act he made. As correctly pointed out by
the prosecution, the fact that forthrightly upon discovery, the
accused-appellant fled the scene and hid in his grandmothers
house intimates that he knew that he did something that merits
punishment.
Contrary to the urgings of the defense, the fact that the
accused-appellant is a recipient of several academic awards and
is an honor student further reinforces the finding that he [is]
possessed [of] intelligence well beyond his years and is thus
poised to distinguish, better at least than other minors his age
could, which conduct is right and which is morally reprehensible.
[59]

Petitioner now raises the following issues and arguments in the instant
petition before this Court:
ISSUES
I
WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT
PETITIONER BEYOND REASONABLE DOUBT.
II

WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9

YEARS BUT BELOW 15 YEARS OF AGE AT THE TIME OF THE
CRIME, ACTED WITH DISCERNMENT.
III
WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF
LAW.
ARGUMENTS
I
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF
COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE
FINDING OF RAPE.
II
PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.
III
PETITIONER ACTED WITHOUT DISCERNMENT.
IV
THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.
V
THE COMPLAINT IS FABRICATED.
VI

PETITIONER WAS DENIED DUE PROCESS OF LAW.[60]

The issues raised by the petitioner in this case may be summarized as

follows: (1) whether he was deprived of his right to a preliminary
investigation; (2) whether he had carnal knowledge of the private
complainant, and if in the affirmative, whether he acted with discernment in
perpetrating the crime; (3) whether the penalty imposed by the appellate
court is correct; and (4) whether he is liable to pay moral damages to the
private complainant.
On the first issue, petitioner avers that he was deprived of his right to a
preliminary investigation before the Information against him was filed.
On the second issue, petitioner claims that the prosecution failed to
prove beyond reasonable doubt that he had carnal knowledge of
Debbielyn. He insists that her testimony is inconsistent on material points.
He points out that she claimed to have felt pain in her vagina when
petitioner inserted his penis to the point that she cried; this, however, is

negated by Dr. Castillos report stating that there was no evidence of injury
on the victims external genitalia. Petitioner maintains that as against the
victims testimony and that of Dr. Castillos report, the latter should prevail.
According to petitioner, mere touching of the female organ will not
suffice as factual basis of conviction for consummated rape. Moreover, the
victims testimony lacks credibility in view of her admission that, while she
was being allegedly ravished by him, there were passersby along the street.
Besides, petitioner avers, an abrasion may be caused by an invasion of the
body through the protective covering of the skin. Petitioner insists that the
prosecution failed to prove the cause of the abrasion.
Petitioner also claims that the victim was tutored or coached by her
parents on her testimony before the trial court. Dr. Castillo testified that
when she interviewed Debbielyn, the latter admitted to her that she did not
understand the meaning of the word rape and its Filipino translation, hinalay,
and that the genital examination of the girl was at the insistence of the
latters parents.
Petitioner avers that Teofisto Bucuds testimony has no probative
weight because and had an ill-motive to testify against him. Petitioner
stated, on cross-examination, that his uncle, Boy, had the house rented by
Teofisto demolished. Petitioner avers that the witness persuaded the victims
parents to complain against him, as gleaned from the testimony of Police
Investigator Milagros Carroso.
For its part, the Office of the Solicitor General (OSG) avers that
petitioner was subjected to an inquest investigation under Section 7, Rule
112 of the Revised Rules of Criminal Procedure, as gleaned from the
Certification of the City Prosecutor incorporated in the Information. It avers
that the absence of external injuries does not negate rape; neither is it
necessary that lacerations be found on the hymen of a victim. Rape is
consummated if there is some degree of penetration within the vaginal
surface. Corroborative evidence is not necessary to prove rape. As long as
the testimony of the victim is credible, such testimony will suffice for
conviction of consummated rape. When the victim testified that she was
raped, she was, in effect, saying all that is necessary to prove that rape was
consummated. Petitioners evidence to prove ill-motive on the part of Teofisto
Bucud in testifying against him is at best flimsy. Moreover, it is incredible that
the victim and her parents would charge petitioner with rape solely on
Teofistos proddings.
The OSG insists that the petitioner acted with discernment before,
during, and after the rape based on the undisputed facts. The submission of
the OSG follows:

Petitioner argues that since he was only 12 years old at the

time of the alleged rape incident, he is presumed to have acted
without discernment under paragraph 3 of Article 12 of the
Revised Penal Code. Under said provision, the prosecution has
the burden of proving that he acted with discernment. In the
instant case, petitioner insists that there was no evidence
presented by the prosecution to show that he acted with
discernment. Hence, he should be exempt from criminal liability.
Petitioners arguments are bereft of merit.
Discernment, as used in Article 12(3) of the Revised Penal Code
is defined as follows: the discernment that constitutes an
exception to the exemption from criminal liability of a minor
under fifteen (15) years of age but over nine (9), who commits an
act prohibited by law, is his mental capacity to understand the
difference between right and wrong (People v. Doquena, 68 Phil.
580 [1939]). For a minor above nine but below fifteen years of
age, he must discern the rightness or wrongness of the effects of
his act (Guevarra v. Almodova, G.R. No. 75256, January 26,
1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p.
375, 1998 Ed.), writes that discernment is more than the mere
understanding between right and wrong. Rather, it means the
mental capacity of a minor between 9 and 15 years of age to
fully appreciate the consequences of his unlawful act (People v.
Navarro, [CA] [51 O.G. 4062]). Hence, in judging whether a minor
accused acted with discernment, his mental capacity to
understand the difference between right and wrong, which may
be known and should be determined by considering all the
circumstances disclosed by the record of the case, his
appearance, his attitude and his behavior and conduct, not only
before and during the commission of the act, but also after and
even during the trial should be taken into consideration (People
v. Doquena, supra).
In the instant case, petitioners actuations during and after the
rape incident, as well as his behavior during the trial showed that
he acted with discernment.
The fact appears undisputed that immediately after being
discovered by the prosecutions witness, Teofisto Bucud,
petitioner immediately stood up and ran away. Shortly thereafter,
when his parents became aware of the charges against him and
that private complainants father was looking for him, petitioner

went into hiding. It was not until the Barangay Tanod came to
arrest him in his grandmothers house that petitioner came out in
the open to face the charges against him. His flight as well as his
act of going into hiding clearly conveys the idea that he was fully
aware of the moral depravity of his act and that he knew he
committed something wrong. Otherwise, if he was indeed
innocent or if he was not least aware of the moral consequences
of his acts, he would have immediately confronted private
complainant and her parents and denied having sexually abused
their daughter.
During the trial, petitioner submitted documentary
evidence to show that he was a consistent honor student and
has, in fact, garnered several academic awards. This allegation
further bolstered that he acted with discernment, with full
knowledge and intelligence. The fact that petitioner was a
recipient of several academic awards and was an honor student
further reinforces the finding that he was possessed of
intelligence well beyond his years and thus was able to
distinguish, better than other minors of his age could, which
conduct is right and which is morally reprehensible. Hence,
although appellant was still a minor of twelve years of age, he
possessed intelligence far beyond his age. It cannot then be
denied that he had the mental capacity to understand the
difference between right and wrong. This is important in cases
where the accused is minor. It is worthy to note that the basic
reason behind the enactment of the exempting circumstances
under Article 12 of the Revised Penal Code is the complete
absence of intelligence, freedom of action, or intent on the part
of the accused. In expounding on intelligence as the second
element of dolus, the Supreme Court has stated: The second
element of dolus is intelligence; without this power, necessary to
determine the morality of human acts to distinguish a licit from
an illicit act, no crime can exist, and because the infant has no
intelligence, the law exempts (him) from criminal liability
(Guevarra v. Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up
to the time the petitioner was being held for trial, sufficiently
satisfied the trial court that petitioner acted with discernment
before, during and after the rape incident. For a boy wanting in
discernment would simply be gripped with fear or keep mum. In
this case, petitioner was fully aware of the nature and illegality of
his wrongful act. He should not, therefore, be exempted from

criminal liability. The prosecution has sufficiently proved that

petitioner acted with discernment.[61]
In reply, petitioner asserts that the only abrasion found by Dr. Castillo
was on the peri-anal skin and not in the labia of the hymen. He further insists
that there can be no consummated rape absent a slight penetration on the
female organ. It was incumbent on the prosecution to prove that the accused
acted with discernment but failed. The mere fact that he was an honor
student is not enough evidence to prove that he acted with discernment.
The petition is not meritorious.
On the first issue, petitioners contention that he was deprived of his
right to a regular preliminary investigation is barren of factual and legal
basis. The record shows that petitioner was lawfully arrested without a
warrant. Section 7, Rule 112 of the Revised Rules of Criminal Procedure
provides:
SEC.
7. When
accused
lawfully
arrested
without
warrant. When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary investigation,
the complaint or information may be filed by a prosecutor
without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the
proper court on the basis of the affidavit of the offended party or
arresting officer or person.
Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in accordance
with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may
apply for bail and the investigation must be terminated within
fifteen (15) days from its inception.
After the filing of the complaint or information in court
without a preliminary investigation, the accused may, within five
(5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his
defense as provided for in this Rule.

As gleaned from the Certification[62] of the City Prosecutor which was

incorporated in the Information, petitioner did not execute any waiver of the
provisions of Article 125 of the Revised Penal Code before the Information
was filed. He was arraigned with the assistance of counsel on October 10,
2002, and thereafter filed a petition for bail.[63]Petitioners failure to file a
motion for a preliminary investigation within five days from finding out that
an Information had been filed against him effectively operates as a waiver of
his right to such preliminary investigation.[64]
On the second issue, a careful review of the records shows that the
prosecution adduced evidence to prove beyond reasonable doubt that
petitioner had carnal knowledge of the private complainant as charged in the
Information. In People v. Morata[65] the Court ruled that penetration, no
matter how slight, or the mere introduction of the male organ into the labia
of the pudendum, constitutes carnal knowledge. Hence, even if the
penetration is only slight, the fact that the private complainant felt pains,
points to the conclusion that the rape was consummated.[66]
From the victims testimony, it can be logically concluded that
petitioners penis touched the middle part of her vagina and penetrated the
labia of the pudendum. She may not have had knowledge of the extent of
the penetration; however, her straightforward testimony shows that the rape
passed the stage of consummation. [67] She testified that petitioner dragged
her behind a pile of hollow blocks near the vacant house and ordered her to
lie down. He then removed her shorts and panty and spread her legs. He
then mounted her and inserted his penis into her vagina:
Fiscal Barrera:
Q: From what time up to what time?
A: From 12:00 oclock noon up to 6:00 p.m.
Q: September 24, 2002 and going over the calendar, it was
Tuesday. Did you go to school from 12:00 oclock noon up
to 6:00 p.m.?
A: Yes, Sir, on the same date I went to school.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation
St., R. Higgins, Maricaban, Pasay City?
A: Yes, Sir.
Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my

mother.
Q: And where is that store of your mother where you went?
A: It is near our house, walking distance.
Q: What is your mother selling in that store?
A: She sells quail eggs.
Q: And were you able to immediately go to the store of your
mother where she was selling quail eggs?
A: Yes, sir.
Q: And that was past 6:00 p.m. already?
A: Yes, sir.
Q: And what happened when you went to the store where your
mother is selling quail eggs past 6:00 p.m.?
A: My mother asked me to bring home something.
Q: What were these things you were asked by your mother to
bring home?
A: The things she used in selling.
Q: And did you obey what your mother told you to bring home
something?
A: Yes, Sir.
Q: And what happened to you in going to your house?
A: Totoy pulled me.
Q: Pulled you where?
A: Totoy pulled me towards an uninhabited house.
Q: What happened after Totoy pulled you in an uninhabited
house?
A: He told me to lie down on the cement.
Q: What happened after he laid you down on the cement?
A: He removed my shorts and panty. He also removed his shorts.
Q: After Totoy removed your shorts and panty and he also
removed his shorts, what happened next?
A: He inserted his penis inside my vagina.

Q: What did you feel when Totoy inserted his penis inside your
vagina?
A: It was painful.
Q: Aside from inserting his penis inside your vagina, what else
did you do to you?
A: He kissed me on my lips.
Q: After Totoy inserted his penis inside your vagina and kissed
you on your lips, what did you do?
A: I cried.
Q: What happened when you were crying when he inserted his
penis inside your vagina and kissed you on your lips. What
happened next?
A: Somebody heard me crying.
Q: Who heard you crying?
A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard

you crying?
A: Totoy ran away.
Q: After Totoy ran away, what happened next?
A: When Totoy ran away, I was left and Kuya Teofe told me to tell
the matter to my parents.
Q: Did you tell your parents what Totoy did to you?
A: Yes, Sir.[68]
On cross-examination, the victim was steadfast in her declarations:
ATTY. BALIAD:
Q: Again, in what particular position were you placed by Totoy
when he inserted his penis inside your vagina?
A: I was lying down.
Q: Aside from lying down, how was your body positioned at that
time?
A: He placed on top of me.

Q: After he placed on top of you, what else did he do to you, if

any?
A: He started to kiss me and then he inserted his penis inside my
vagina.
Q: Did you feel his penis coming in into your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.[69]
When questioned on cross-examination whether she could distinguish a
vagina from an anus, the victim declared that she could and proceeded to
demonstrate. She reiterated that the penis of petitioner penetrated her
vagina, thus, consummating the crime charged:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or Totoy inserted his penis in your
vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel that the penis of Neil
entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your pepe?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in
this case penetrated only in your vagina and not in your
anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused
neither by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.[70]

While it is true that Dr. Castillo did not find any abrasion or laceration in the
private complainants genitalia, such fact does not negate the latters
testimony the petitioner had carnal knowledge of her. The absence of
abrasions and lacerations does not disprove sexual abuses, especially when
the victim is a young girl as in this case. [71] According to Dr. Castillo, the
hymen is elastic and is capable of stretching and reverting to its original
form.[72] The doctor testified that her report is compatible with the victims
testimony that she was sexually assaulted by petitioner:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or Totoy inserted his penis in your
vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel (sic) that the penis of
Neil entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your pepe?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in
this case penetrated only in your vagina and not in your
anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused
neither by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.
xxxx
Fiscal Barrera:
Q: Based on your testimony doctor, and the medico genital
examination propounded on the report that the victim
here, Debbielyn Santos is complaining that around 6:00 in
the evening of September 24, 2002, she was sexually
abused and that on the following day, September 25, you
interviewed her and stated to you that her genitalia was
hurting and in binocular (sic) masakit ang pepe ko, ni-rape

ako, would your findings as contained in this Exh. B and C

be compatible with the allegation if the minor victim that
she was sexually abused on September 24. 2002 at
around 6:00 p.m.?
Atty. Baliad:
Objection, Your Honor. The one who narrated the incident is
the mother.
Court:
What is your objection?
Atty. Baliad:
The objection, Your Honor, is the question propounded is
that it was the minor who made the complaint regarding
the allegation.
Fiscal Barrera:
The answer were provided..
Court:
The doctor is being asked whether or not her findings is
compatible
with
the
complaint
of
the
minor. Overruled. Answer.
Witness:
A It is compatible with the allegation of the minor.
Fiscal Barrera:
Confronting you again with your two (2) medico-genital
documents, the Provincial and Final Report mark[ed] in
evidence as Exhs. B and C, at the lower portion of these
two exhibits there appears to be a signature above the
typewritten word, Mariella Castillo, M.D., whose signature
is that doctor?
A Both are my signatures, Sir.[73]
Dr. Castillo even testified that the abrasion near the private complainants
anal orifice could have been caused by petitioner while consummating the
crime charged:
Fiscal Barrera:
Q: With your answer, would it be possible doctor that in the
process of the male person inserting his erect penis inside

the vagina, in the process, would it be possible that this

abrasion could have been caused while in the process of
inserting the penis into the vagina touch the portion of the
anus where you find the abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that
the alleged perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a 12-year-old boy could
cause an erection of his penis?
A: Yes, sir.
Q: To enlight[en] us doctor, we, not being a physician, at what
age could a male person can have erection?
A: Even infants have an erection.[74]
Petitioners contention that the private complainant was coached by her
parents into testifying is barren of merit. It bears stressing that the private
complainant testified in a straightforward and spontaneous manner and
remained steadfast despite rigorous and intensive cross-examination by the
indefatigable counsel of the petitioner. She spontaneously pointed to and
identified the petitioner as the perpetrator.
It is inconceivable that the private complainant, then only a sevenyear old Grade II pupil, could have woven an intricate story of defloration
unless her plaint was true.[75]The Presiding Judge of the trial court observed
and monitored the private complainant at close range as she testified and
found her testimony credible. Case law is that the calibration by the trial
court of the evidence on record and its assessment of the credibility of
witnesses, as well as its findings of facts and the conclusions anchored on
said findings, are accorded conclusive effect by this Court unless facts and
circumstances
of
substance
were
overlooked,
misconstrued
or
misinterpreted, which, if considered would merit a nullification or reversal of
the decision. We have held that when the offended party is young and
immature, from the age of thirteen to sixteen, courts are inclined to give
credence to their account of what transpired, considering not only their
relative vulnerability but also the shame and embarrassment to which they
would be exposed if the matter to which they testified is not true.[76]
Neither do we lend credence to petitioners claim that the charge
against him is but a fabrication and concoction of the private complainants
parents. Indeed, petitioner admitted in no uncertain terms that the spouses
had no ill-motive against him. Thus, Neil testified as follows:

Fiscal Barrera:
Q: As you testified earlier that you have played post cards with
Debbielyn Santos alias Lyn-lyn and you have no quarrel or
misunderstanding with Lyn-lyn. Do you know of any reason
why Lyn-lyn complaint (sic) against you for sexual abuse?
A: I dont know of any reason, Sir.
Q: You also testified that you do not have any quarrel or
misunderstanding with Lyn-lyns parents, spouses Domingo
Santos, Jr. and Marilou Santos, do you think of any reason
as to why they would file a complaint against you for
molesting their 7-year-old daughter?
A: I do not know of any reason why they filed a complaint against
me, Sir.
Fiscal Barrera:
That would be all, Your Honor.[77]
There is no evidence that the parents of the offended party coached
their daughter before she testified. No mother or father would stoop so low
as to subject their daughter to the tribulations and the embarrassment of a
public trial knowing that such a traumatic experience would damage their
daughters psyche and mar her life if the charge is not true.[78]
On the other hand, when the parents learned that their daughter had
been assaulted by petitioner, Domingo tried to locate the offender and when
he failed, he and his wife reported the matter to the barangay authorities.
This manifested their ardent desire to have petitioner indicted and punished
for his delictual acts.
That petitioner ravished the victim not far from the street where
residents passed by does not negate the act of rape committed by
petitioner. Rape is not a respecter of time and place. The crime may be
committed by the roadside and even in occupied premises. [79] The presence
of people nearby does not deter rapists from committing the odious act. [80] In
this case, petitioner was so daring that he ravished the private complainant
near the house of Teofisto even as commuters passed by, impervious to the
fact that a crime was being committed in their midst.
Case law has it that in view of the intrinsic nature of rape, the only evidence
that can be offered to prove the guilt of the offender is the testimony of the
offended party. Even absent a medical certificate, her testimony, standing
alone, can be made the basis of conviction if such testimony is
credible. Corroborative testimony is not essential to warrant a conviction of
the perpetrator.[81] Thus, even without the testimony of Teofisto Bucud, the
testimonies of the offended party and Dr. Castillo constitute evidence beyond
reasonable doubt warranting the conviction of petitioner.

Teofistos testimony cannot be discredited by petitioner simply because his

uncle caused the demolition of the house where Teofisto and his family were
residing. It bears stressing that Teofisto gave a sworn statement to the police
investigator on the very day that the petitioner raped Debbielyn and
narrated how he witnessed the crime being committed by the petitioner. [82] In
the absence of proof of improper motive, the presumption is that Teofisto had
no ill-motive to so testify, hence, his testimony is entitled to full faith and
credit.[83]
The trial court correctly ruled that the petitioner acted with discernment
when he had carnal knowledge of the offended party; hence, the CA cannot
be faulted for affirming the trial courts ruling.
Article 12, paragraph 3 of the Revised Penal Code provides that a
person over nine years of age and under fifteen is exempt from criminal
liability, unless he acted with discernment. The basic reason behind the
exempting circumstance is complete absence of intelligence, freedom of
action of the offender which is an essential element of a felony either
by dolus or by culpa. Intelligence is the power necessary to determine the
morality of human acts to distinguish a licit from an illicit act. [84] On the other
hand, discernment is the mental capacity to understand the difference
between right and wrong. The prosecution is burdened to prove that the
accused acted with discernment by evidence of physical appearance,
attitude or deportment not only before and during the commission of the act,
but also after and during the trial.[85] The surrounding circumstances must
demonstrate that the minor knew what he was doing and that it was wrong.
Such circumstance includes the gruesome nature of the crime and the
minors cunning and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged the
resisting victim behind the pile of hollow blocks near the vacant house to
insure that passersby would not be able to discover his dastardly acts. When
he was discovered by Teofisto Bucud who shouted at him, the petitioner
hastily fled from the scene to escape arrest. Upon the prodding of his father
and her mother, he hid in his grandmothers house to avoid being arrested by
policemen and remained thereat until barangay tanods arrived and took him
into custody.
The petitioner also testified that he had been an outstanding grade
school student and even received awards. While in Grade I, he was the best
in his class in his academic subjects. He represented his class in a quiz bee
contest.[86] At his the age of 12, he finished a computer course.

In People v. Doquea,[87] the Court held that the accused-appellant

therein acted with discernment in raping the victim under the following facts:
Taking into account the fact that when the accused
Valentin Doquea committed the crime in question, he was a
7th grade pupil in the intermediate school of the municipality of
Sual, Pangasinan, and as such pupil, he was one of the brightest
in said school and was a captain of a company of the cadet corps
thereof, and during the time he was studying therein he always
obtain excellent marks, this court is convinced that the accused,
in committing the crime, acted with discernment and was
conscious of the nature and consequences of his act, and so also
has this court observed at the time said accused was testifying in
his behalf during the trial of this case.[88]
The CA ordered petitioner to pay P50,000.00 as moral damages
and P20,000.00 as exemplary damages. There is no factual basis for the
award of exemplary damages. Under Article 2231, of the New Civil Code,
exemplary damages may be awarded if the crime was committed with one or
more aggravating circumstances. In this case, no aggravating circumstance
was alleged in the Information and proved by the People; hence, the award
must be deleted.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack

of merit. The decision of the Court of Appeals in CA-G.R. CR No. 26962
is AFFIRMED WITH MODIFICATION that the award of exemplary damages
is DELETED.
SO ORDERED.
ALVIN JOSE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision[1] of the Court of
Appeals (CA) in CA-G.R. CR No. 22289 affirming with modification the
Decision[2] of the Regional Trial Court of Calamba, Laguna, Branch 36,

convicting the accused therein of violation of Section 21(b), Article IV in

relation to Section 29, Article IV of Republic Act No. 6425, as amended.
The records show that Alvin Jose and Sonny Zarraga were charged with
the said crime in an Information, the accusatory portion of which reads:
That on or about November 14, 1995, in the municipality of Calamba,
Province of Laguna, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, not being licensed or authorized by law, did then and there willfully,
unlawfully
and
feloniously
sell
and
deliver
to
other
person
METHAMPHETAMINE HYDROCHLORIDE (or shabu) weighing 98.40 grams, a
regulated drug, and in violation of the aforestated law.
CONTRARY TO LAW.[3]
The accused, assisted by counsel, pleaded not guilty to the charge.
As culled by the trial court, the evidence of the prosecution established
the following:
[O]n November 14, 1995, P/Supt. Joseph R. Castro of the Fourth Regional
Narcotics Unit received an information from an unnamed informant. Said
unnamed informant was introduced to him by former Narcom P/Senior
Inspector Recomono. The information was that a big time group of drug
pushers from Greenhills will deliver 100 grams of shabu at Chowking
Restaurant located at Brgy. Real, Calamba, Laguna.
Acting on such report, SPO1 Bonifacio Guevarra was assigned to act as the
poseur-buyer. SPO2 William Manglo and SPO2 Wilfredo Luna were the other
members of the team. SPO1 Guevarra was provided with marked money
consisting of a P1,000.00 bill on top of a bundle of make-believe money bills
supposedly amounting to P100,000.00. P/Supt. Joseph R. Castro, SPO2
William Manglo and Wilfredo Luna went to the place on a Mitsubishi Lancer
while SPO1 Guevarra and the informant boarded an L-300 van. They arrived
at the Chowking Restaurant at about 11:00 in the morning. They positioned
their cars at the parking area where they had a commanding view of people
going in and out (TSN, October 3, 1996, pp. 2-8 and TSN, July 11, 1996, pp.
4-7).

It was about 4 oclock in the afternoon when a Toyota Corolla with Plate No.
UBV-389 arrived. Sonny Zarraga was the driver with Alvin Jose. The unnamed
informant approached and talked to Sonny Zarraga. Then, the informant
called SPO1 Bonifacio Guevarra and informed the latter that Sonny Zarraga
had with him 100 grams of shabu. SPO1 Bonifacio Guevarra offered to buy
the shabu. Sonny Zarraga asked SPO1 Bonifacio Guevarra if he had the
money to buy 100 grams of shabu. Guevarra responded in the affirmative.
He showed the aforecited bundle of money bills. Sonny Zarraga then asked
Alvin Jose to bring out the shabu and handover (sic) to Bonifacio Guevarra.
SPO1 Bonifacio Guevarra, in turn, handed the bundle of money bills.
Guevarra scratched his head, the pre-arranged signal to signify that the
transaction was consummated (TSN, July 30, 1996, pp. 3-8). Immediately
thereafter, William Manglo and Wilfredo Luna approached and introduced
themselves as Narcom Operatives. They arrested Sonny Zarraga and Alvin
Jose. The buy-bust bundle of money bills and the shabu were recovered. The
two were brought to Camp Vicente Lim for investigation. Edgar Groyon
conducted the investigation. The shabu was brought to the PNP Crime
Laboratory for examination (TSN, July 30, 1996, pp. 9-10 and TSN, October 3,
1996, pp. 9-13). P/Senior Inspector Mary Jean Geronimo examined the shabu.
She reported and testified that the specimen, indeed, was a second or low
grade methamphetamine hydrochloride (TSN, July 30, 1996, pp. 31-36).[4]
On the other hand, the accused therein were able to establish the
following facts:
Sonny Zarraga and Alvin Jose claimed that, on November 13, 1995, they
were at SM Mega Mall (sic), Mandaluyong, Metro Manila, to change money.
Suddenly, a person with a hand bag appeared and ordered them to handcuff
themselves. They were later able to identify three of these people as Police
Supt. Joseph Roxas Castro, SPO3 Noel Seno and a certain Corpuz. They were
all in civilian clothes.
They proceeded to where Sonny Zarragas car was parked. Sonny Zarraga
was forced to board another car while another person drove Sonny Zarragas
car with Alvin Jose as passenger. They drove towards Greenhills. They were
eventually blindfolded. On the way to Greenhills, one of the men opened the
gloves compartment of Sonny Zarragas car. One of the men saw a substance
inside the said compartment. He tasted it. Said person asked Sonny Zarraga
if he could come up with P1.5 Million peso (sic). Col. Castro even showed the

picture of Sonny Zarragas mother-in-law who was supposed to be a rich drug

pusher.
They ended up inside a room with a lavatory. While inside the said room,
Sonny Zarragas cellular phone rung. It was a call from Sonny Zarragas wife.
Col. Castro talked to Pinky Zarraga and asked her if she could pay P1.5
Million as ransom for the release of Sonny Zarraga. Sonny Zarraga instead
offered to withdraw money from the bank in the amount of P75,000.00. The
agreement was that in the bank, Pinky Zarraga would withdraw the money
and deliver it to Col. Castro in exchange for Sonny Zarragas release. The
agreement did not materialize. Col. Castro and Pinky Zarraga met inside the
bank but Pinky Zarraga refused to withdraw the money as Sonny Zarraga
was nowhere to be seen. There was a commotion inside the bank which
prompted the bank manager to call the police.
Col. Castro left the bank in a hurry, passed by for Alvin Jose who was left at
the room and brought them to Camp Vicente Lim. There, they were
investigated.
The defense claimed that SPO3 Noel Seno got Sonny Zarragas
jewelry, P85,000.00 in cash and Sonny Zarragas car spare tire, jack and
accessories. Noel Seno was even able to withdraw the P2,000.00 using
Sonny Zarragas ATM card.[5]
On June 10, 1998, the trial court rendered judgment convicting both
accused of the crime charged and sentencing each of them to an
indeterminate penalty. The fallo of the decision reads:
WHEREFORE, this Court finds both the accused Sonny Zarraga and Alvin Jose
guilty beyond reasonable doubt, for violation of R.A. 6425, as amended, and
is hereby sentenced to suffer the penalty of imprisonment of, after applying
the Indeterminate Sentence Law, six (6) years and one (1) day to ten (10)
years.
Both accused are hereby ordered to pay the fine of P2 million each and to
pay the cost of suit.
In the service of sentence, the preventive imprisonment undergone both by
the accused shall be credited in their favor.

Atty. Christopher R. Serrano, Branch Clerk of Court, is hereby ordered to

deliver and surrender the confiscated Methamphetamine Hydrochloride to
the Dangerous Drugs Board.
SO ORDERED.[6]
On appeal to the CA, the accused-appellants averred that the trial court
erred as follows:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE
EVIDENCE PRESENTED BY THE PROSECUTION.
II
THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THE
MERE PRESENTATION OF THE SHABU IN COURT IS NOT SUFFICIENT TO
FIND, WITH ABSOLUTE CERTAINTY, THAT THE APPELLANTS
COMMITTED THE CRIME OF SELLING PROHIBITED DRUGS, ESPECIALLY
WHEN THE IDENTITY OF THE DRUG WAS NOT PARTICULARLY SET OUT
IN THE TESTIMONY OF THE PROSECUTION WITNESSES.
III
EVEN GRANTING THAT THE TRIAL COURT CORRECTLY FOUND THE
APPELLANTS GUILTY OF THE CRIME CHARGED AGAINST THEM:
(a) THE TRIAL COURT DID NOT IMPOSE THE PROPER PENALTY
AGAINST THEM.
(b) EACH OF THE APPELLANTS CANNOT BE MADE TO PAY A FINE IN
THE AMOUNT OF P2 MILLION PESOS (SIC) AND THE COST OF
THE SUIT.[7]
The CA rendered judgment affirming the decision appealed from with
modification. The appellate court reduced the penalty imposed on appellant
Alvin Jose, on its finding that he was only thirteen (13) years old when he
committed the crime; hence, he was entitled to the privileged mitigating
circumstance of minority and to a reduction of the penalty by two degrees.
The appellant filed a motion for reconsideration, alleging that since the

Information failed to allege that he acted with discernment when the crime
was committed and that the prosecution failed to prove the same, he should
be acquitted. The appellate court denied the motion.
Appellant Jose, now the
on certiorari, alleging that

petitioner,

filed

his

petition

for

review

THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING PETITIONER

DESPITE (1) THE FAILURE OF THE PROSECUTION TO PROVE BEYOND
REASONABLE DOUBT THAT PETITIONER, WHO WAS ONLY 13 YEARS OLD
WHEN THE CRIME WAS ALLEGEDLY COMMITTED BY HIM IN CONSPIRACY WITH
CO-ACCUSED SONNY ZARRAGA, ACTED WITH DISCERNMENT, AND (2) THE
ABSENCE OF A DECLARATION BY THE TRIAL COURT THAT PETITIONER SO
ACTED WITH DISCERNMENT, PURSUANT TO THE APPLICABLE PROVISIONS OF
THE REVISED PENAL CODE AND THE ESTABLISHED JURISPRUDENCE.[8]
The petitioner asserts that, under paragraph 3, Article 12 of the Revised
Penal Code, a minor over nine (9) and under fifteen (15) years of age at the
time of the commission of the crime is exempt from criminal liability unless
he acted with discernment, in which case he shall be proceeded against in
accordance with Article 192 of Presidential Decree (P.D.) No. 603, as
amended by P.D. No. 1179, as provided for in Article 68 of the Revised Penal
Code. He avers that the prosecution was burdened to allege in the
Information and prove beyond reasonable doubt that he acted with
discernment, but that the prosecution failed to do so. The petitioner insists
that the court is mandated to make a finding that he acted with discernment
under paragraph 1, Article 68 of the Revised Penal Code and since the CA
made no such finding, he is entitled to an acquittal.
For its part, the Office of the Solicitor General (OSG) asserts that the
allegation in the Information that the petitioner and his co-accused conspired
and confederated to sell the shabusubject of the Information sufficiently
avers that the petitioner acted with discernment; hence, there was no need
for the public prosecutor to allege specifically in the Information that the
petitioner so acted. It contends that it is not necessary for the trial and
appellate courts to make an express finding that the petitioner acted with
discernment. It is enough that the very acts of the petitioner show that he
acted knowingly and was sufficiently possessed with judgment to know that
the acts he committed were wrong.
The petition is meritorious.

Under Article 12(3) of the Revised Penal Code, a minor over nine years of
age and under fifteen is exempt from criminal liability if charged with a
felony. The law applies even if such minor is charged with a crime defined
and penalized by a special penal law. In such case, it is the burden of the
minor to prove his age in order for him to be exempt from criminal liability.
The reason for the exemption is that a minor of such age is presumed lacking
the mental element of a crime the capacity to know what is wrong as
distinguished from what is right or to determine the morality of human acts;
wrong in the sense in which the term is used in moral wrong. [9] However,
such presumption is rebuttable.[10] For a minor at such an age to be criminally
liable, the prosecution is burdened [11] to prove beyond reasonable doubt, by
direct or circumstantial evidence, that he acted with discernment, meaning
that he knew what he was doing and that it was wrong. [12] Such
circumstantial evidence may include the utterances of the minor; his overt
acts before, during and after the commission of the crime relative thereto;
the nature of the weapon used in the commission of the crime; his attempt
to silence a witness; his disposal of evidence or his hiding the corpus delicti.
In the present case, the prosecution failed to prove beyond reasonable
doubt that the petitioner, who was thirteen (13) years of age when the crime
charged was committed, acted with discernment relative to the sale
of shabu to the poseur-buyer. The only evidence of the prosecution against
the petitioner is that he was in a car with his cousin, co-accused Sonny
Zarraga, when the latter inquired from the poseur-buyer, SPO1 Bonifacio
Guevarra, if he could afford to buy shabu. SPO1 Guevarra replied in the
affirmative, after which the accused Zarraga called the petitioner to bring out
and hand over the shabu wrapped in plastic and white soft paper. The
petitioner handed over the plastic containing the shabu to accused Zarraga,
who handed the same to the poseur-buyer:
Q Whom did you approach to buy the shabu?
A The two of them, Sir.
Q While the two of them was (sic) sitting inside the car, what did you
tell them?
A They asked me if I can afford to buy the 100 grams, Sir.
Q And what was your response?

A I answer in (sic) affirmative, Sir.

Q And what happened next?
A After that I showed my money, Sir.
Q Now, tell us when you said they reply (sic) in the affirmative
specifically. I withdraw that.
Q When you said they asked you whether you can afford to buy 100
grams tell us who asked you that question?
A Sonny Zarraga, Sir.
Q And after you answer (sic) in the affirmative, what was his
response?
A He let his companion to (sic) bring out the shabu, Sir.
Q Did his companion bring out the shabu?
A Yes, Sir.
Q What happened to the shabu?
A Alvin Jose handed the shabu to his companion Sonny Zarraga.
Q After that, what did Sonny Zarraga do with the shabu?
A He handed it to me, Sir.
Q After this shabu was handed to you, what happened next?
A After examining the shabu, I put it in my pocket and then I handed
to him the money, Sir.
Q When you say money, which money are you referring to?
A The P1,000.00 bill with the bundle of boodle money, Sir.
Q Now, after you handed the money to the accused, what happened
next?

A I made signs to my companions, Sir.

Q What signs did you give?
A I acted upon our agreement by scratching my head, Sir.
Q And how did your companions respond to your signal?
A After scratching my head, my companions approached us and
arrested them.
Q Now, tell us, do you know, in particular, who arrested Sonny
Zarraga?
A Yes, Sir.
Q Tell us.
A SPO1 William Manglo and PO3 Wilfredo Luna, Sir.
Q Can you describe to us the manner by which Sonny Zarraga was
arrested by these police officers?
A Yes, Sir.
Q Please tell us.
A They introduced themselves as NARCOM operatives, Sir.
Q And after that, what happened?
A They recovered the money from Sonny Zarraga, Sir. [13]
Q What happened to the shabu which was handed to you by the
accused?
A It was brought by our office to the crime laboratory, Sir.
Q Who made the request for its examination?
A SPO3 Edgar Groyon, Sir.

Q Earlier, you said that the shabu was handed to you. What did you
do with the shabu?
A While we were at the area, I handed it to SPO1 William Manglo, Sir.
Q Tell us, when this shabu was handed to you by the accused, in what
container was it contained?
A When it was handed to me by Sonny Zarraga it was wrapped in a
plastic and white soft paper, Sir.[14]
It was accused Zarraga who drove the car and transacted with the
poseur-buyer relative to the sale of shabu. It was also accused Zarraga who
received the buy-money from the poseur-buyer. Aside from bringing out and
handing over the plastic bag to accused Zarraga, the petitioner merely sat
inside the car and had no other participation whatsoever in the transaction
between the accused Zarraga and the poseur-buyer. There is no evidence
that the petitioner knew what was inside the plastic and soft white paper
before and at the time he handed over the same to his cousin. Indeed, the
poseur-buyer did not bother to ask the petitioner his age because he knew
that pushers used young boys in their transactions for illegal drugs. We
quote the testimony of the poseur-buyer:
ATTY. VERANO:
Q Did you try to find out if they were friends of your informant?
A No, Sir.
Q Did you find out also the age of this Mr. Alvin Yamson?
A I dont know the exact age, what I know is that he is a minor, Sir.
Q Eventually, you find (sic) out how old he is (sic)?
A I dont know, Sir.
Q Mr. Guevarra, may I remind you that, in your affidavit, you stated
the age of the boy?
A I cannot recall anymore, Sir.

Q Were you not surprised from just looking at the boy at his age, were
you not surprised that a young boy like that would be in a group
selling drugs?
FISCAL:
It calls for an opinion, Your Honor.
ATTY. VERANO:
May I ask, Your Honor, if he did not further interrogate why or how this
very young boy (sic) selling 100 grams of shabu.
COURT:
The witness may answer.
WITNESS:
A No more, Sir, because I know that young boys are being used by
pushers.[15]
Even on cross-examination, the public prosecutor failed to elicit from the
petitioner facts and circumstances showing his capacity to discern right from
wrong. We quote the questions of the public prosecutor on cross-examination
and the petitioners answers thereto:
FISCAL:
Cross, Your Honor. May I proceed.
COURT:
Please proceed.
FISCAL:
Q Mr. Witness, you started your narration that it started on November
13, 1995 and did I hear it right that you went to Manuela at 5
oclock in the afternoon?
WITNESS:

A Yes, Sir.
Q Now, when you went to Manuela, you came from Filinvest, Quezon
City? You left Filinvest, Quezon City, at 12 oclock?
A No, Sir.
Q What time did you leave?
A After lunch, Sir.
Q Now, on the second day which you claimed that you were in the
custody of the police, you said that at one occasion on that day,
you have (sic) a chance to be with your cousin in a [L]ancer car
and it was inside that [L]ancer car when your cousin saw his own
cellular phone on one of the seats of the car, is that correct?
A Yes, Sir.
Q Did your cousin tell you that that was his first opportunity to make a
call to anybody since the day that you were arrested?
A He did not say anything, he just get (sic) the cellular phone.
Q Did you come to know the reason how that cellular phone appeared
inside that [L]ancer car?
A No, Sir.
Q Now, going back to the first day of your arrest. You said that you
were accosted by a male person at the workshop and then you
went out of Megamall and when you went outside, this man saw
the key of the car dangling at the waist. At whose waist?
A From my cousin.
Q And at that time, that person did not have any knowledge where
your car was?
A No, Sir.

Q And your cousin told him that your car was parked at the third level
parking area of SM Megamall, is that correct?
A Yes, Sir.
Q And at that time, that man did not make any radio call to anybody?
A No, Sir.
Q Until the time that you reached the third level parking of Megamall,
he had not made any call?
A No, Sir.
Q And yet when you reach (sic) the third level parking of the
Megamall, you claimed that there was already this group which
met you?
A Yes, Sir.
Q And this group were the policemen who are the companions of the
male person who arrested you?
A Yes, Sir.
Q Do you know the reason why they were there at that time?
A No, Sir.
Q These people do not know your car?
A No, Sir.
FISCAL:
No further question, Your Honor.
ATTY. VERANO:
No re-direct, Your Honor.
COURT:

Q Mr. Witness, earlier you stated that you are not a drug user nor
have you seen any shabu. In support of your claim, are you willing
to submit yourself to an examination?
WITNESS:
A Yes, Your Honor.
Q Are you willing to submit a sample of your urine to this Court?
A Yes, Sir.
COURT:
The witness is discharged.[16]
The claim of the OSG that the prosecution was able to prove that the
petitioner conspired with his co-accused to sell shabu to the poseur-buyer,
and thereby proved the capacity of the petitioner to discern right from
wrong, is untenable. Conspiracy is defined as an agreement between two or
more persons to commit a crime and decide to commit it. Conspiracy
presupposes capacity of the parties to such conspiracy to discern what is
right from what is wrong. Since the prosecution failed to prove that the
petitioner acted with discernment, it cannot thereby be concluded that he
conspired with his co-accused. Indeed, in People v. Estepano,[17] we held that:
Clearly, the prosecution did not endeavor to establish Renes mental capacity
to fully appreciate the consequences of his unlawful act. Moreover, its crossexamination of Rene did not, in any way, attempt to show his discernment.
He was merely asked about what he knew of the incident that transpired on
16 April 1991 and whether he participated therein. Accordingly, even if he
was, indeed, a co-conspirator, he would still be exempt from criminal liability
as the prosecution failed to rebut the presumption of non-discernment on his
part by virtue of his age. The cross-examination of Rene could have provided
the prosecution a good occasion to extract from him positive indicators of his
capacity to discern. But, in this regard, the government miserably
squandered the opportunity to incriminate him.[18]
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CR No. 22289 which affirmed the
Decision of the Regional Trial Court of Calamba, Laguna, Branch 36, is SET

ASIDE. The petitioner is ACQUITTED of the crime charged for insufficiency of

evidence.[19]
No costs.
SO ORDERED.
THE
UNITED
STATES, Plaintiff-Appellee,
MARALIT, Defendant-Appellant.
Claro
Attorney-General

M.

v.

MAXIMO

Recto

for Appellant.

Avancea

for Appellee.

SYLLABUS
1. CRIMINAL LAW; APPEAL; REVERSAL. The Supreme Court will not reverse
a judgment of conviction in a criminal case unless, on review of the facts,
there appears to be a reasonable doubt of the guilt of the accused.
2. ID.; ID.; FINDINGS OF TRIAL COURT AS TO CREDIBILITY OF WITNESSES.
In reviewing the facts in a criminal case the Supreme Court, in determining
the credibility of witnesses whose testimony is in conflict, will be guided to
some extent by the opinion of the trial court on that matter, and will not
disturb its conclusions in that regard unless the record discloses some reason
therefor.
3. ID.; INFANTS; EXEMPTION FROM RESPONSIBILITY. A person over 9 years
of age and under 15 is exempt from criminal liability unless, in committing
the
crime,
he
acted
with
discernment.
4. ID.; ID.; DISCERNMENT. In order to convict a person of that age and
impose a criminal penalty upon him, the trial court must make an express
finding to the effect that, in the commission of the crime, he acted with
discernment.
5. ID.; ID.; ID. The finding that such person acted with discernment must
be based upon evidence found in the record, or upon the personal
appearance and conduct of that person during the trial, or from facts of
which
the
court
may
take
judicial
notice.
6. ID.; ID.; ID. To establish the fact that such person acted with
discernment it is not necessary, even if it were permissible, that a witness
declare directly and in words that he acted with discernment; it is sufficient
that, from the evidence as a whole, it is a necessary inference that he so

acted.
7. ID.; ID.; ID. In arriving
discernment the trial court
circumstances presented by
and
conduct
of

at the conclusion that such person acted with

may take into consideration all the facts and
the record as well as the appearance, attitude
such
person
during
the
trial.

8. ID.; ID.; DISCRETIONAL PENALTY. Where the accused is a minor of less

than 15 and over 9 years of age, a discretionaly penalty should be imposed,
provided that the same shall always be less by two degrees, at least, than
that prescribed by the law for the offense committed.
DECISION
MORELAND, J. :
The appellant was convicted of homicide and sentenced to five (5) years of
prision correccional, to the accessories provided by law, to indemnify the
heirs of the deceased in the sum of P1,000, and to pay the costs:chanrob1es
virtual
1aw
library
We are satisfied that the defendant below, without jurisdiction, stabbed
Florentino Luistro in the side with a knife and caused his death.
Counsel for appellant vigorously and ably attacks the findings of fact of the
trial court and attempts to show that he should have accepted the testimony
of the defense rather than that of the prosecution as a basis for his
conclusions. A careful examination of the evidence, however, fails to furnish
sufficient reasons to reverse the trial court on the facts. Two witnesses
testified to the occurrence on behalf of the prosecution and stated that they,
with the deceased Florentino, were walking along in single file each with a
bundle of zacate on his head, Florentino bringing up the rear, when they met
the defendant and a companion. As they were passing each other they heard
a sound similar to that made by the dropping of one of the bundles of zacate.
They instantly turned and saw Florentino and the defendant fighting with
their fist. They soon separated and Florentino, returning to his bundle of
zacate, stooped to pick it up when the defendant ran to him quickly and
stabbed him in the left side with a knife. The defendant and his companion
then ran away. The witnesses and Florentino went home. Florentino died a
few days later as a result of the wound thus received.
The accused and his witness tell a different story, in which it is claimed that
Florentino made an attack upon the accused, after some sharp words had

passed between them, and struck him several times with a club; whereupon
the accused, in self-defense, made use of his dagger with the effect already
noted.
Upon this evidence the trial court found with the witnesses for the
prosecution. In spite of the insistent argument of counsel for the appellant
we must conclude on the record that there is no reason for a reversal of the
trial
court
with
regard
to
its
findings
of
fact.
Counsel for appellant strenuously contends that the accused should be
acquitted on the ground that the prosecution did not prove that the accused,
in stabbing the deceased, acted with discernment, that is, with a full
understanding of the nature and consequences of his act. This argument is
based upon the age of the accused and paragraph 3 of article 8 of the Penal
Code.
The accused was less than 15 years of age at the time the crime was
committed. The deceased was less than 16, the certificate of death stating
that his age was fifteen. The paragraph of article 8 referred to provides that a
person over 9 years of age and under 15 is exempt from criminal liability
"unless he has acted with discernment." That paragraph also provides that
"in order to impose a penalty upon such a person, . . . the court shall make
an express finding upon this fact," that is, the fact that he acted with
discernment.
While counsel admits that the trial court found that the accused acted, in the
commission of the crime, with complete discernment, he contends that there
is no evidence in the record upon which that finding can be based, he
alleging that it was the duty of the prosecution to prove that fact by
affirmative
evidence.
We are satisfied that the contention of counsel is not well grounded in this
particular case. It is true, as counsel asserts, that it must appear from the
evidence that the accused acted with knowledge of the nature of his acts
and of the results which would naturally follow therefrom; but to establish
that fact it is not necessary that some witness declare directly and in words
that he acted with such knowledge. It is sufficient that, from the evidence as
a whole, it is a necessary inference that he so acted. The trial court taking
into consideration all of the facts and circumstances presented by the record,
together with the appearance of the accused as he stood and testified in
court, drew the conclusion that he was of sufficient intelligence and was
sufficiently endowed with judgment to know that the act which he committed
was wrong and that it was likely to produce death. In pursuance of that
conclusion the court made the finding that the accused in committing the act
complained
of
acted
with
discernment.

We are of the opinion, however, that the penalty imposed is not correct.
Article
85
of
the
Penal
Code
provides
that

"In the case of a minor of less than fifteen and over nine years of age, who is
found by the court to have acted with discernment, and, therefore, not being
exempt from criminal liability, a discretional penalty shall be imposed,
provided that the same shall always be less by two degrees, at least than
that prescribed by the law for the offense committed."cralaw virtua1aw
library
Following the provisions of this article the penalty imposed should have been
two (2) years of prision correccional instead of five years. As so modified, the
judgment
is
affirmed.
So
ordered.
Torres, Carson, Trent and Araullo, JJ., concur.
PEOPLE OF THE PHILIPPINES, appellee, vs. BERNARDO CORTEZANO
and JOEL CORTEZANO, appellants.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision [1] of the Regional Trial Court of
Camarines Sur, Libmanan, Branch 56, in Criminal Cases Nos. L-1679 and L1680, convicting appellants Bernardo Cortezano and Joel Cortezano with four
counts of rape and sentencing them to suffer the penalty of reclusion
perpetua for each count; and ordering each of them to pay damages to the
victim as follows: P200,000 as moral damages and P200,000 as exemplary
damages in all the cases.
The Indictments
On November 22, 1994, two separate Informations for rape were filed
against the appellants. The first Information docketed as Criminal Case No. L1679 reads:
That on or about the 6th day of May, 1990, in the afternoon at Bgy. (sic)
Azucena, Municipality of Sipocot, Province of Camarines Sur, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
with lewd design, conspiring, confederating together and mutually helping
one another, taking advantage of their superior strength with force,
intimidation and with grave abuse of confidence, did then and there wilfully

(sic), feloniously and unlawfully have carnal knowledge one after the other
with Leah C. Cortizano (sic), 7 years old, minor, against her will and the
offended party suffered damages.
ACTS CONTRARY TO LAW.[2]
The second Information docketed as Criminal Case No. L-1680 reads:
That on or about the 10th day of June, 1990, in the afternoon at Bgy. (sic)
Azucena, Municipality of Sipocot, Province of Camarines Sur, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
with lewd design, conspiring, confederating together and mutually helping
one another, taking advantage of their superior strength with force,
intimidation and with grave abuse of confidence, did then and there wilfully
(sic), unlawfully and feloniously have carnal knowledge one after the other
with Leah C. Cortezano, 7 years old, minor, against her will and the offended
party suffered damages.
ACTS CONTRARY TO LAW.[3]
On arraignment, the accused entered their plea of not guilty. A
consolidated trial of the two criminal cases then ensued.
The Case for the Prosecution
Sometime in March 1990, Lourney Cortezano decided to take a leave of
absence from her part-time job in Cubao, Quezon City, to spend her vacation
with her three children: eight-year-old Leah, three-year-old Leah Lou, and
Lionel, who was barely a year old. Lourney decided to stay in the house of
her parents-in-law, Santiago and Nita Cortezano, located at Barangay
Azucena, Sipocot, Camarines Sur. Lionel was also sick with asthma so
Lourney could rely on her mother-in-law to take care of him while she was at
work. Lourneys husband, Elmer, remained in their residence in Caloocan City.
The Cortezano residence was located at an isolated patch of land. Nita
and Santiago slept in a room separated from the sala by a curtain. Their
children, the accused Bernardo (Butchoy) Cortezano, who was then twelve
years old; the accused Joel Cortezano, who was then only thirteen; Tinggang,
who was six years old, and Boyet Orcine, their six-year-old nephew, also lived
with the couple. At night, Lourney and her children, as well as Joel, Bernardo
and Tinggang, slept beside each other in a room near the kitchen, beside the

couples room. By mid-April of 1990, Lourney returned to Caloocan City,

leaving her children in the care of her parents-in-law.
Early in the afternoon of May 6, 1990, Joel and Bernardo ordered their
niece Leah to sleep in their parents room. Leah protested because it was hot
in that room. Joel threatened to whip her if she refused. Leah had no choice;
she went to the room and slept. Leah suddenly awoke when she sensed
pressure on her arms and legs. When she opened her eyes, she saw her
uncles Joel and Bernardo; they were holding her hands and feet as she was
being undressed. Leah struggled but was easily overpowered by her
uncles. She threatened to shout, but she was told that nobody would hear
her. Joel and Bernardo wet her vagina with their saliva. Bernardo then held
her hands as Joel mounted her. Joel inserted his penis into her vagina, while
Bernardo stood by the window to serve as a lookout. Leah felt something
slippery inside her vagina. After Joel dismounted, Bernardo went on top of
Leah and inserted his penis into her vagina. It was Joels turn to stand by the
window as a lookout. Leah once more felt something slippery in her
vagina. Bernardo then stood up.
Momentarily, Boyet Orcine arrived and inquired what Joel and Bernardo
were doing to Leah. Joel and Bernardo ordered Boyet to rape Leah and
threatened to box him if he refused.Joel and Bernardo laughed as Boyet was
having his turn with Leah. Joel and Bernardo then called Leah Lou and Lionel
into the room, letting them see their sister naked.
Joel and Bernardo threatened to kill her and the members of the family if
she told anyone about what happened to her. Joel, Bernardo and Boyet left
the room together. Leah went out of the room and washed her vagina.
Petrified, Leah did not reveal to her grandparents what happened to
her. After that first harrowing incident, Joel and Bernardo subjected her to
sexual abuse daily. After every sexual intercourse they had with Leah, Joel
and Bernardo would threaten to kill her and her family if she told anyone
what they had been doing to her.
On June 10, 1990, Joel and Bernardo again ordered Leah to go to her
grandparents room. She did as she was told. Joel and Bernardo undressed
her. Leah was told to lie down, and Joel and Bernardo again wet her vagina
with their saliva. Joel then laid on top of her, holding her hands and pinning
her legs with his, as he inserted his penis into her vagina. Bernardo stood by
the window as a lookout. Leah tried to fight Joel, but the latter was

enraged. She was about to shout, but Joel told her that it would be futile to
do so because their neighbors were far away. Joel dismounted and Bernardo
had his turn, with Joel standing by the window to see if anyone was
coming. Joel and Bernardo again threatened to kill Leah if she told anyone
about the incident.
The next day, June 11, 1990, was Lionels birthday. Lourney arrived at
Brgy. Azucena and brought her children back to Caloocan City, in time for
Leahs enrollment at the Kalayaan Elementary School in Brgy. Silang,
Caloocan City. Because of the sexual abuse she suffered at the hands of her
uncles, Leah felt pain in her lower abdomen (puson). Every now and then,
she would feel numbness on the left side of her body.
Sometime in March 1993, Lionel and Leah Lou once again stayed with
their grandparents in Brgy. Azucena. On May 21, 1993, Elmer arrived in
Sipocot and stayed with his parents.Lourney followed her family to Sipocot
on June 20, 1993. Leah remained in Caloocan City to continue her
schooling. Her studies were financed by the Department of Social Welfare
and Development.
On August 23, 1993, Elmer had a quarrel with his parents and left Brgy.
Azucena. Since then, Lourney did not hear from her husband and did not
know where he was. On September 20, 1993, Lourney left Brgy. Azucena and
brought her children to Pili, Camarines Sur.
On May 27, 1994, Lourney learned from Boyet Orcine that her daughter
Leah had been sexually abused by Joel and Bernardo way back in
1990. Boyet told Lourney that Leah Lou had suffered the same fate as Leah.
[4]
Lourney immediately contacted a certain Mrs. Monares, a social worker at
the DSWD of Pili, Camarines Sur, and inquired whether the information
relayed to her by Boyet Orcine could be true. Mrs. Monares advised Lourney
to ask Leah herself. Lourney left Pili and arrived in Caloocan City on June 1,
1994. She asked Leah if she recalled anything that happened to her while on
vacation in Sipocot in 1990. Leah told her mother that Joel and Bernardo had
whipped her and she did not want to return to Sipocot. When Lourney asked
her daughter, the latter replied that Joel and Bernardo had raped her.
Lourney brought Leah to the PNP Crime Laboratory in Camp Crame,
Quezon City. Dr. Ma. Cristina B. Freyra examined Leah and submitted MedicoLegal Report No. M-0807-94, with the following findings:

FINDINGS:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female child. Breasts are
conical with pale brown areola and nipples from which no secretions could be
pressed out. Abdomen is flat and soft.
GENITAL:
There is absence of pubic hair. Labia majora are full, convex and coaptated
with the pinkish brown labia minora presenting in between. On separating
the same disclosed an elastic, fleshy-type hymen with deep healed
lacerations at 3, 7 and 9 oclock. External vaginal orifice offers strong
resistance to the introduction of the examining index finger.[5]
On June 16, 1994, Lourney and Leah arrived in the Criminal Investigation
Field Office in Naga City where they gave their respective sworn statements
to PO3 Elmer V. Caceres.[6]
The Case for the Accused
Bernardo was born on January 22, 1978. He denied the charges. He
admitted that he was charged with raping Leah Lou on April 21, 1994
in People v. Bernardo Cortezano,[7] filed with the Regional Trial Court of Pili,
Camarines Sur, and that he pleaded guilty on his arraignment. He testified
that on March 28, 1990, he arrived in Bagadiong, Libmanan, Camarines Sur,
to help his cousin, Alvin Reoval, to plow and harrow his rice field and
plant palay. He had lost his school bag, and his father, Santiago, had
punished him for it. He had nowhere to go except to his cousins
house. Barangay Bagadiong was adjacent to Barangay Busak, and one would
take four and half-hours by carabao to traverse Busak from Bagadiong. There
were, however, many passenger jeepneys and buses plying the BusakSipocot route. When Bernardo thought that his parents were no longer mad
at him, he returned to Sipocot on April 5, 1993. He received P3,150 for his
services. He met his sister-in-law Lourney only in 1994, when she charged
him with the rape of Leah Lou.
Joel Cortezano testified that he was born on November 1, 1976. He and
his mother arrived in Manila on May 6, 1990 and stayed in the house of his
aunt Concordia Hernandez in San Andres, Manila. On May 9, 1990, he went

to the Philippine General Hospital (PGH) for treatment of leukemia and

stayed there for three days. Thereafter, he was advised by the doctor not to
leave the hospital, as he needed blood transfusion. Joel stayed in the hospital
for one week. Joel was discharged from the hospital and stayed in the house
of his aunt, Concordia Hernandez, in San Andres, Manila, for about a month
and helped the latter manage her store. Every now and then, he returned to
the hospital for check-ups.
In August 1990, Joels mother fetched him from San Andres and brought
him to Novaliches for two days. Thereafter, he returned to Sipocot,
Camarines Sur.
When asked about his medical certificate regarding his treatment at the
PGH during the period stated, Joel testified that he lost the same during a
typhoon. He claimed that efforts to secure copies of the said medical
certificates proved futile, as the employees who released the certificates
were busy. Joel denied raping his niece Leah.
Nita Cortezano testified that she left Sipocot on May 6, 1990 for Manila to
accompany her son Joel to the PGH, as the latter was suffering from leukemia
and needed blood transfusion.They stayed in the hospital for about two
weeks. They did not immediately return to Sipocot as they were ordered by
the attending physician to stay in Manila. On May 28, 1990, she and Joel
went to Elmers house in Caloocan City where they saw Leah. It would have
thus been impossible for Leah to be in Sipocot on May 6, 1990 to June 10,
1990. Nita further testified that it was only in 1991 when Leah and her
siblings were first brought to Sipocot by Lourney. The second instance was in
1992, but it was their father Elmer who was with the children at the time.
Santiago Cortezano corroborated in part his wifes testimony. He testified
that between May 6 and June 10, 1990, Leah and her siblings indeed spent
their vacation in Sipocot. However, during that time, Joel was brought to
Manila for a check-up at the PGH. Bernardo, on the other hand, left the
household in June 1990. Aside from this, his daughters Melanie and Teresita,
who were 16 years old and 10 years old, respectively, and his grandson
Boyet (Bulilit) stayed in his house. His son Elmer also arrived in Sipocot
during this time.
Sancho Cortezano testified that he went to the house of his older brother
Elmer in Caloocan City on May 10, 1990 to inform the latter of his
marriage. Elmer was not in his house but Lourney and her children, including

Leah, were there. Sancho left on May 11, 1990 for Cebu where he got
married seven days later. On June 3, 1990, Sancho returned to Manila and
when he went to visit Elmer at his house, only Lourney and the children were
there.
Boyet Orcine testified that on May 6, 1990, he was in the hills with his
mother Emerlina Cortezano in Barangay Tulay, which was very far from the
house of the Cortezanos in Barangay Azucena, Sipocot. He returned from the
hills only in 1993. He testified that he did nothing while he was away.
On rebuttal, the prosecution presented two letters from Mrs. Fe B. Baes,
Chief of the Medical Records Division of the PGH, that as an outpatient, Joel
consulted the hospital on August 16, 1989, November 2, 1989 and April 6,
1990, and that he was never confined at the PGH in 1990. The said letters
read as follows:
In connection with the letter received by this office requesting for a record of
a certain Joel Cortezano, whether or not he was hospitalized in this hospital
way back 1989, please be informed that as per hospital records, a certain
Joel Cortezano consulted on an outpatient basis sometime on August 16,
1989, November 2, 1989 and April 6, 1990.[8]
In reply to your letter dated August 15, 1995 re: JOEL CORTEZANO, may I
inform you that he was never confined in this hospital anytime in 1990. He
only consulted on April 6, 1990 on an outpatient basis.[9]
After trial, the court rendered a decision convicting the appellants of four
counts of rape, the dispositive portion of which reads as follows:
WHEREFORE, in view of the aforecited considerations, this Court finds the
accused, JOEL CORTEZANO and BERNARDO CORTEZANO, GUILTY beyond
reasonable doubt of the two crimes of Rape as defined and punished under
Article 335, of the Revised Penal Code, as amended. They are sentenced to
suffer the penalty of FOUR RECLUSION PERPETUA each, in both criminal
cases, considering that they acted in conspiracy in the commission of the
act, and to indemnify the offended party Fifty Thousand Pesos (P50,000.00)
each, as moral damages in each criminal case, and another Fifty Thousand
Pesos (P50,000.00) each in each case, as exemplary damages, and to pay
the costs of this suit. The period of their respective preventive detention is
considered in the service of their sentence.

SO ORDERED.[10]
Hence, this appeal.
Joel and Bernardo, now the appellants, note, citing People v. Batis,[11] that
there are three (3) settled principles to warrant a conviction for rape, namely:
(1) an accusation for rape can be made with facility; it is difficult to prove,
but more difficult for the person accused, though innocent, to disprove; (2) in
view of the intrinsic nature of the crime where only two persons are usually
involved, the testimony of the complainant must be scrutinized with great
caution; and (3) the evidence for the prosecution must stand or fall on its
own merits, and cannot be allowed to draw strength from the weakness of
the evidence of the defense.
The appellants assert that Leahs testimony is incredible; hence, barren of
probative weight. In her sworn statement to the police authorities, she
claimed that she was raped thirty-six times, but her testimony in the trial
court tends to show that she claimed to have been raped only on May 6 and
June 10, 1990. Boyets denial that he had sexual intercourse with Leah belied
the latters testimony that she was likewise raped by him. If Leahs claim that
her sister Leah Lou and her brother Lionel saw her naked had any ring of
truth to it, the two would surely have immediately reported the matter to
their parents. The fact that they did not do so raises serious doubts as to the
veracity of Leahs testimony.
The appellants also claim that although their defense of alibi is inherently
weak, it is incumbent upon the prosecution to establish their guilt beyond
reasonable doubt before a judgment of conviction could be rendered against
them. Considering the prosecutions evidence, tattered as it is, their defense
assumes importance and is even decisive of the outcome of the case.
The Court finds the appeal without merit.
This Court in People v. Guanson,[12] ruled:
Well-entrenched in our jurisprudence is the doctrine that assessment of the
credibility of witnesses lies within the province and competence of trial
courts. The matter of assigning values to declarations on the witness stand is
best and most competently performed by the trial judge who, unlike
appellate magistrates, could weigh such testimony in light of the declarants
demeanor, conduct and attitude at the trial and is thereby placed in a more

competent position to discriminate the truth against falsehood. Thus,

appellate courts will not disturb the credence, or lack of it, accorded by the
trial court to the testimonies of witnesses, unless it be clearly shown that the
latter court had overlooked or disregarded arbitrarily the facts and
circumstance of significance.[13]
In this case, the trial court gave credence and full probative weight to the
testimony of the victim, in tandem with those of the other witnesses of the
prosecution:
Whatever inconsistencies or lapses there were, the same relate to trivial
matters and do not in any manner affect her credibility and the veracity of
her statements. Furthermore, such minor lapses are to be expected
when a person is recounting details of humiliating experience which
are painful to recall. (Pp. V. Olivar, 215 SCRA 759) In fact, though how
lengthy and rigid the cross-examination was, Leahs declarations remained
consistent, firm and undisturbed. Leahs categorical, spontaneous, emphatic,
and straightforward answers during the cross-examination strengthened and
explained whatever missing facts there were on direct examination. The
medico-legal findings, moreover, corroborated Leahs testimony that she was
indeed raped. Although there are no fresh hymenal lacerations, the incident
having happened three (3) years before the examination, yet there are
healed lacerations evidencing the sexual attack. A freshly broken hymen
is not an essential element of rape. (Pp. V. Cura, GR 112529, January 18,
1995)[14]
The bestial defloration was mirrored in Leahs being, as she cringed and
trembled whenever she sees the accused. During the trial, the Interpreter
had to shield Leahs line of vision upon advice of the Presiding Judge, as she
was uncontrollably shaking and crying, when the accused would come within
her view. Her tears and statements were not contrived but borne out of a
genuine feeling of bitterness. She sobbed bitterly as she narrated her
nauseating experience in the hands of her uncles and even eloquently
declared in a loud voice:
hindi ko kailangan ang pera, ang
kailangan ko ay katarungan!
(p. 9, TSN dated January 27, 1995)[15]

This Court ruled in People v. Dy[16] that the victims act of crying during
her testimony bolsters the credibility of the rape charge with the verity born
out of human nature and experience.
Indeed, as can be gleaned from Leahs testimony, she recounted, with
tears cascading from her eyes, the sordid details on how the appellants
ravished her and satiated their bestial proclivities, thus:
Q: On May 6, 1990 to June 10, 1990, do you know any unusual
incident that took place involving that person?
A: Yes, Sir.
Q: Tell the Honorable Court, what is that all about?
A: That occur[r]ence was done to me by my two Titos.
Q: What specific occur[r]ence?
A: The raped (sic) that they did to me, Sir. (Pagsasamantala)
Q: They, to whom are you referring to?
A: My two uncles, Sir, Joel and Bernardo.
Q: What is the surname?
A: Cortezano, Sir.
Q: Can you possibly tell the Honorable Court, how this raping incident
was done to you?
A: Yes, Sir.
Q: Feel free to tell the Court.
A: (Witness crying) That vacation mama left us at Sipocot, because
she was to go back to work in Manila. She told me, that she is to
leave on May 5, 1990. The next day, after lunch, Joel and Bernardo
did something bad to me. After lunch, he told me to go inside the
room, when I refused, he held the broom attempting to whip
me. Because of fear, I went inside the room, while complaining to

them why ask me to sleep in that room, when it is too hot in that
room. He told me to obey otherwise, he will whip me. I slept, and
when I woke up I noticed that they were doing something bad to
me. The first thing I saw was Tito Joel was (sic) doing to me. I was
crying the (sic), I was strangling (sic), my two hands were being
held and my legs pinned down. I could not move because they
(sic) were two of them, one was watching outside. They told me
that if I shout it will be useless because no one will hear me
because the house was really far from neighbors. Our house is
situated in a secluded place. Then, after that my grandmother
arrive (sic), and she asked if there was something bad happened. I
told her there was none. I was about to relay to her the incident,
but I just could not because the two of them were watching
me. They stopped doing this to me when my mother arrive[d] on
June 10, 1990.
When we were about to leave, they were planning to do something
bad to me. They said, lets do it in the grass land. They kicked me
from where I was standing, and I was thrown with my bottoms
(sic) hitting the mud first, I told them I dont like it anymore, and I
run (sic) and when they overtook me, they stripped off my
panties. They placed saliva in my vagina and inserted their penis
in my vagina.When my mama asked me, what was the abrasions
in my arms all about, I told her that my arms was (sic) strucked
(sic) by wire. (The witness showed the scratches that were already
healed)When we reached Manila my father asked me about what
happened and we told him, that they were whipping us.
(The witness cried.)[17]
Q: Ms. Witness, as far as you can recall when was (sic) this incident
happened?
A: On May 6, 1990 until June 10, 1990.
Q: How many times were you forced to lie with the accused in this
case from that period?
A: Thirty six times.
Q: What time did this incident on May 6, 1990 took place?

A: After lunchtime.
Q: Tell the Honorable Court what was the participation of the accused
Joel and Bernardo Cortezano in this incident of May 6, 1990?
A: I was ordered to get inside the room together with my brother and
sister, and I was ordered to get inside the room of my lola.
Q: On the basis of that instruction, what did you do, if any?
A: I obeyed even if the room was hot.
Q: What was the answer of Joel in relation to your complain[t] that the
room was hot?
A: I better obey, otherwise he will whip me with the broom (walistingting).
Q: And so what happened next?
A: I slept and when I woke up they were doing something bad on (sic)
me already.
Q: When you said they, to whom are you referring to?
A: Joel Cortezano and Bernardo Cortezano.
Q: What is that bad you are referring to when you say that the
accuseds (sic) in this case were doing bad things to you when you
woke up?
A: I was being raped, they undress me.
Q: There are two accused in this case, who was the first one to rape
you?
A: Joel Cortezano.
Q: When you say rape, just what do you mean, can you possibly
explain further to the Honorable Court how was it done?

A: When I woke up they were already undressing me, they held my

hand and my legs and I could not move and Tito Joey [18] inserted
his penis to my vagina and Tito Butchoy [19] was standing by the
window and watching.
(Witness is crying).
Q: And so, what did you feel, if any?
A: I felt something slippery was left inside my vagina.
Q: And so, after the accused Joel Cortezano did this to you, what
happened next?
A: They left the house and were at the sampaloc tree.
Q: How old are (sic) you then during that incident as related on May 6,
1990?
A: I was seven years old.
Q: What else happened, if any, with regards to Bernardo Cortezano
besides his watching in the window as you say?
A: After Tito Joel did that to me, Bernardo Cortezano also did it to me
and after that, Boyet, a cousin of mine when inside the room and
ask what they were doing and Tito Joel answered, you also have to
do what we are doing, otherwise we will hurt you, so Boyet did the
same thing to me.
Q: You testify (sic) that one of the accuseds (sic), Bernardo Cortezano,
after Joel Cortezano did the same thing to (sic), tell the Honorable
Court what is this thing that Bernardo Cortezano did to you, if
any?
A: Tito Joel went beside the window and watch while Bernardo
Cortezano also inserted his penis to my vagina.
Q: When Bernardo Cortezano inserted his penis into your vagina, what
did you feel, if any?

A: I feel that there was something slippery again was left inside my
vagina.
Q: And so, after Bernardo Cortezano did this to you, what happened
next, if any?
A: Boyet went inside the room followed by Tito Joel who went inside
again and told Boyet to do what they were doing otherwise he will
hurt Boyet and since Boyet was frightened, he also did the same
thing to me.
Q: What is that same thing Boyet did to you, if any?
A: He also held my arms and inserted his penis into my vagina.
Q: And so after that, what happened next?
A: They laughed at me and then they called by brother and sister and
told them to peep at me and they saw me naked.
Q: At the time when these accused Joel and Bernardo Cortezano
started making advances, did you not resist their advances?
A: I fought back but they were too strong for me, one held my arms
and the other was on top of me while he inserted his penis, I want
to shout but Joel told me not to because nobody can hear me.
Q: Now we come to the incident of June 10, 1990, as far as you can
recall, where were you on June 10, 1990.
A: I was at the house of my lola.
Q: While you were at the house of your Lola, what incident took place,
if any?
A: On June 10, 1990 it was the last time they did it to me.
Q: What time was that already?
A: It was after lunchtime, they warned me not to tell anybody
otherwise they will kill me and my family.

Q: When you say they, to whom are you referring to?

A: Joel and Bernardo Cortezano.
Q: If they are inside the courtroom, will you please point to them?
A: (Witness pointing to a man wearing stripe[d] polo who identify (sic)
himself as Bernardo Cortezano and the man wearing a gray polo
who identify (sic) himself as Joel Cortezano).
Q: Please tell the Honorable Court what is that same thing you are
referring to which was done to you by the accuseds in this case on
June 10, 1990?
A: They remove (sic) my panty and they place saliva in my vagina and
then they held my arms and pinned my legs and then kiss me on
the lips.
Q: Who kissed you on the lips?
A: Joel Cortezano.
Q: And after kissing you on the lips, what happened next, if any?
A: They left the room and went to the sampaloc tree and they laughed
at me, then I went out of the room and wash my lips.[20]
Leah was brought by her mother to Sipocot to spend her vacation with
her grandparents, only to be waylaid and enslaved by the appellants, her
own uncles. Well-settled is the rule that the testimonies of young victims
deserve full credence and should not be so easily dismissed as a mere
fabrication.[21] As emphasized by this Court in People v. Quezada:[22]
No woman, especially one of tender age, would concoct a story of
defloration, allow an examination of her private parts and thereafter permit
herself to be subjected to a public trial, unless she is motivated solely by the
desire to have the culprit apprehended and punished. Considering that the
young victim had not been exposed to the ways of the world, it is most
improbable that she would impute a crime so serious as rape to any man, if
the charge were not true.[23]

In People v. De Guzman,[24] we held:

Well-established is the rule that testimonies of rape victims, especially child
victims, are given full weight and credit. It bears emphasis that the victim
was barely seven years old when she was raped. In a litany of cases, we
have applied the well settled rule that when a woman, more so if she is a
minor, says she has been raped, she says, in effect, all that is necessary to
prove that rape was committed. Courts usually give greater weight to the
testimony of a girl who is a victim of sexual assault, especially a minor
particularly in cases of incestuous rape, because no woman would be willing
to undergo a public trial and put up with the shame, humiliation and dishonor
of exposing her own degradation were it not to condemn an injustice and to
have the offender apprehended and punished.[25]
The barefaced fact that the public prosecutor opted to charge the
appellants with only four counts of rape on May 6 and June 10, 1990, but
Leah, in her sworn statement to the police authorities, stated that she had
been raped by the appellants on a daily basis and testified thereon, does not
render her testimony implausible. Even the municipal trial court which
conducted the preliminary investigation of the cases found probable cause
against the appellants for thirty-six counts of rape:
From the evidence of the prosecution, it is clear that statutory rape was
committed to victim Leah Cedilla Cortezano for thirty six (36) times by
accused Joel Cortezano and Bernardo Cortezano, and the rapes were
committed in the house of the paternal grandparents of victim Leah Cedilla
Cortezano located in Barangay Azucena, Sipocot, Camarines Sur, from May 6,
1990, until June 10, 1990.
WHEREFORE, for all the foregoing considerations, it is respectfully
recommended that THIRTY-SIX (36) complaints for rape should be filed in the
Regional Trial Court against accused JOEL CORTEZANO and BERNARDO
CORTEZANO.
Forward this case and its entire records to the Honorable Senen C. Lirag, the
Provincial Prosecutor of Camarines Sur, Camarines Sur Hall of Justice, Naga
City, for appropriate action.
SO ORDERED.[26]

The provincial prosecutor may have opted to file only four counts of rape
instead of thirty-six counts of rape for reasons other than the implausibility of
Leahs testimony. Neither is Leahs testimony enfeebled by her siblings failure
to report to their parents or grandparents that they saw her naked on May 6,
1990. At the time, Leah Lou was barely three, while Lionel was only a year
old. The children were too young to realize the importance of reporting such
an incident to their parents or grandparents.
In the present recourse, the appellants defense of alibi deserves scant
consideration. As consistently held by this Court:
[A]libi is the weakest of all defenses. It is a settled rule that for an alibi to
prevail, the defense must establish by positive, clear and satisfactory proof
that it was physically impossible for the accused to have been at the scene
of the crime at the time of its commission, and not merely the accused was
somewhere else.[27]
For alibi to prosper, the following must be established with clear and
convincing evidence: (a) the presence of the appellant in another place at
the time of the commission of the offense; and, (b) physical impossibility for
him to be at the scene of the crime. [28] Alibi cannot prevail over the positive,
straightforward and spontaneous testimony of the victim identifying the
appellants as the malefactors and how they consummated the crimes
charged.
Bernardo failed to show that it was physically impossible for him to have
been in Sipocot on May 6 and June 10, 1990. Bernardo even testified that it
was possible for him to have returned to Sipocot if he wanted to, as there
were passenger jeepneys and buses plying the route four times a day.
[29]
There is no evidence that his running away from their house was even
reported to the police authorities. The appellant merely relied on his
testimony and that of his father to prove his defense. He even failed to
present his cousin Alvin Reoval to corroborate his testimony.
Appellant Joel Cortezano likewise failed to substantiate his alibi. He failed
to prove that he was treated at the PGH and was confined thereat on May 6
and June 10, 1990. When asked to produce any certification to prove his
claim, he failed to produce any, on his incredible claim that the person
releasing the certification was very busy and could not issue a
certification.This was belied by the certifications issued by the PGH that the
appellant had consulted the PGH as an outpatient only on August 16, 1989,

November 2, 1989 and April 6, 1990, but was never confined in the said
hospital.[30]
Boyet Orcines bare denial that he was forced by the appellants to have
sexual intercourse with Leah cannot prevail over Leahs positive and
categorical testimony. The appellants failed to adduce a morsel of evidence
to prove that Leah had any ill motive to implicate her cousin Boyet.
The appellants claim that the charges against them were instigated by
Lourney to hit back at her husband and his family deserves scant
consideration. No mother in her right mind would subject her child, who is of
tender age, to go through the rigors of undergoing a rape case just to exact
revenge. In this light, this Court had the occasion to say:
Indeed, it is accused-appellants claim that the rape charge against him was
merely fabricated by complainants mother in order to get back at him, which
we find to be implausible. As the trial court well-observed, it would be
contrary to human nature for a mother like Lucita to expose her daughter of
six years to the rigors of a trial of rape which may leave her stigmatized for
life, and, in addition, involve another daughter as corroborative witness, just
so she could exact her pound of flesh against accused-appellant. In several
rape cases, this Court has uniformly rejected similar defenses on the ground
that it is unbelievable.[31]
This Court also held in People v. De Guzman[32] that:
All told, the proffered alibi of accused-appellant cannot stand against the
positive identification by the complainant that he is the defiler of her
womanhood. Indeed, the revelation of an innocent girl not even into her
teens whose chastity has been abused deserves full credit, as the willingness
of complainant to face police investigation and to undergo the trouble and
humiliation of a public trial is eloquent testimony of the truth of her
complaint. In short, it is most improbable for an innocent and guileless girl of
seven years as herein-offended party, to brazenly impute a crime so serious
as rape to any man, let alone her uncle, if it were not true.[33]
The Court notes that the appellants were still minors when they
committed the offense. At the time, Joel was 13 years and 6 months old,
while Bernardo was 12 years and 4 months old.Nevertheless, they are not
exempt from criminal liability.

Article 12, paragraph 3 of the Revised Penal Code provides:

Article 12. Circumstances, which exempt from liability.The following are
exempt from criminal liability:
3. A person over nine years of age and under fifteen, unless he acted with
discernment, in which case, such minor shall be proceeded against in
accordance with the provisions of Article 80 of this Code.
A minor who is over nine years old and under fifteen years old at the time
of the commission of the crimes is exempt from criminal liability only when
the said minor acted without discernment. It is the burden of the prosecution
to prove that a minor acted with discernment when he committed the crime
charged. In determining if such a minor acted with discernment, the Courts
pronouncement in Valentin v. Duquea[34] is instructive:
The discernment that constitutes an exception to the exemption from
criminal liability of a minor under fifteen years of age but over nine, who
commits an act prohibited by law, is his mental capacity to understand the
difference between right and wrong, and such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case, the very appearance,
the very attitude, the very comportment and behavior of said minor, not only
before and during the commission of the act, but also after and even during
the trial.
In this case, the evidence on record shows beyond cavil that the
appellants acted with discernment when they raped the victim, thus: (a) they
wetted the victims vagina before they raped her; (b) one of them acted as a
lookout while the other was raping the victim; (c) they threatened to kill the
victim if she divulged to her parents what they did to her; (d) they forced
Boyet to rape the victim; (e) they laughed as Boyet was raping the victim; (f)
they ordered Leah Lou and Lionel to look at their sister naked after the
appellants had raped her.
The Proper Penalties
The imposable penalty for rape committed by two or more persons under
Article 335 of the Revised Penal Code was reclusion perpetua to death.
[35]
Since the appellants were both minors at the time they committed the
offenses, they are entitled to the benefits of the privileged mitigating

circumstance of minority under Article 68(1) of the Revised Penal Code which
reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of
age.When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of
this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime which he
committed.
Two degrees lower than reclusion perpetua to death is prision
mayor, which has a range of 6 years and 1 day to 12 years. The maximum of
the indeterminate penalty shall be taken from the proper period of the said
penalty, depending upon the presence or absence of modifying
circumstances. The minimum of the indeterminate penalty shall be taken
from the full range of the penalty, one degree lower than prision
mayor, prision correccional, which has a range of 6 months and 1 day to 6
years.
In these cases, the crimes were not aggravated by abuse of superior
strength because the said circumstance is already considered in the penalty
imposed by the law for the crimes.However, the crimes were aggravated by
relationship, pursuant to the second paragraph of Article 15 of the Revised
Penal Code, as amended.[36] The appellants are the uncles of the victim. The
crime charged in Criminal Case No. L-1679 was aggravated by the
appellants, adding ignominy to the natural effects of the crime. [37] In People
v. Fuertes,[38] this Court ruled:
Ignominy is a circumstance pertaining to the moral order which adds
disgrace and obloquy to the material injury caused by the crime. The clause
Which add ignominy to the natural effects of the act contemplates a situation
where the means employed or the circumstances tend to make the effects of
the crime more humiliating or to put the offended party to shame.
Ignominy was attendant when the appellants forced Boyet Orcine to rape
the victim, and laughed as the latter was being raped by Boyet, and when
they ordered Leah Lou and Lionel to look at their naked sister after the

appellants had raped her. However, the aforementioned modifying

circumstances cannot aggravate the crimes and the penalties therefor
because the same were not alleged in the Information as mandated by
Section 9, Rule 110 of the Revised Rules of Criminal Procedure. Although the
crimes were committed before the effectivity of the said Rule, it shall be
applied retroactively because it is favorable to the appellants.[39]
Civil Liabilities of the Appellants
The trial court awarded P50,000 as moral damages and P50,000 as
exemplary damages to the victim in each case. The court did not award civil
indemnity in both cases. The decision of the trial court shall thus be
modified.
The trial court convicted the appellants of two counts of rape in each
case. However, Leah is entitled to civil indemnity of P50,000 and moral
damages of P50,000 for every crime committed by the appellants. [40] The
appellants are also liable to the said victim for exemplary damages for each
count of rape in the amount of P25,000.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Libmanan, Camarines Sur, Branch 56, in Criminal Cases Nos. L-1679
and L-1680, finding the appellants Bernardo Cortezano and Joel Cortezano
guilty beyond reasonable doubt of four counts of rape is AFFIRMED WITH
MODIFICATIONS.
In Criminal Case No. L-1679, the appellants are sentenced to suffer an
indeterminate sentence of imprisonment (two counts) of nine (9) years and
one (1) day of prision mayor in its medium period, as maximum, to four (4)
years and two (2) months of prision correccional in its medium period, as
minimum. Each of the appellants is ordered to pay the offended party Leah
Cortezano P50,000 as civil indemnity; P50,000 as moral damages;
and P25,000 as exemplary damages for each count of rape. Thus, each of
the appellants shall pay the offended party the total amount of P100,000 as
civil indemnity; P100,000 as moral damages; and P50,000 as exemplary
damages.
In Criminal Case No. L-1680, the appellants are sentenced to suffer an
indeterminate sentence (two counts) of nine (9) years and one (1) day
of prision mayor in its medium period, as maximum, to four (4) years and
two (2) months of prision correccional in its medium period, as

minimum. Each of the appellants is ordered to pay the offended party Leah
CortezanoP50,000 as civil indemnity; P50,000 as moral damages;
and P25,000 as exemplary damages for each count of rape. Thus, each of
the appellants shall pay the offended party the total amount of P100,000 as
civil indemnity; P100,000 as moral damages; and P50,000 as exemplary
damages.
SO ORDERED.
G.R. No. L-4549

October 22, 1952

THE
PEOPLE
OF
THE
PHILIPPINES,
vs.
BIENVENIDO CAPISTRANO, defendant-appellant.

plaintiff-appellee,

Miguel
F.
Trias
for
appellant.
Office of the Solicitor General Pompeyo Diaz and Esmeraldo Umali for
appellee.
JUGO, J.:
Bienvenido Capistrano was charged before the Court of First Instance of
Quezon province with the crime of treason on four (4) counts. He was found
guilty by said court and sentenced to suffer life imprisonment and to pay a
fine of P10,000 and the costs.
The attorney de oficio of the appellant states in a petition filed with this
Court that after having read, reread, and studied the evidence, he finds no
substantial error committed by the trial court and prays for the affirmance of
the judgment.
The evidence of the record establishes the following:
The accused Bienvenido Capistrano admitted being a Filipino citizen.
Count No. I
Alejo Enriquez Wong and Carmen Verdera testified that the defendant was a
so-called Yoin, which means an armed soldier of the Japanese. Wearing a
Japanese military uniform, he rendered services to the Japanese army as a

guard of a Japanese garrison. To the same effect, the witness Placer Canada
testified.
The defendant argued at the trial court that there was no evidence showing
that he had been appointed a Yoin or that he was a Makapili. While no written
formal appointment was introduced in evidence, yet it is clear that he was
engaged in the work of guarding the Japanese garrison, armed with a gun
and wearing a Japanese uniform and taking part in the military drills of the
Japanese army.
Count No. II
At about 3:00 o'clock in the morning of January 8, 1945, the defendant with
other Filipino members of the Yoin and several Japanese soldiers, all armed,
arrived near the house of Carmen Verdera in Barrio Malay, Municipality of
Lopez, Province of Tayabas (now Quezon), and ordered the inmates therein to
open the door. The appellant and his companions entered the house, raised
the mosquito nets and ordered the inmates to rise. The appellant and his
companions tied Graciano Fortuna, Carmen Verdera, Alejo Enriquez Wong,
Rufino Rivera, Maria Canada, Brisilio Canada, Remedios Anastacio, Dolores
Enriquez, Teodora Zamora, Presentacion Anastacio, and Placer Canada with a
rope which was used as a clothesline. The intruders then searched the
premises and seized from Alejo Enriquez Wong $1,000, U.S. currency, and
P4,000, Philippine currency. They took Graciano Fortuna and other inmates to
the Japanese garrison at Lopez, Tayabas (Quezon) and then to the Yoin
garrison in the same town. The motive for the raid was that Pedro Canada, a
brother of Placer, was a guerrilla lieutenant in Lopez and Salvador Fortuna,
son of Graciano, was a soldier in the said organization. One night during the
detention of Placer and her companions in the Yoin garrison, the appellant
attempted to sexually abuse Placer and her companions, but when the
women cried and the Japanese came, the defendant escaped. Placer and her
companions were released after one month when they paid to the chief of
the Yoin and the appellant the sum of P2,500 Japanese war notes. The charge
was testified to by several victims.
The accused was more than nine (9) but less than fifteen (15) years of age at
the time that he committed the crime. However, the court which had the
opportunity to see and hear the accused at the trial found that he acted with
discernment. It should be noted, furthermore, that he appeared as the leader
or commander of the raiding party. Although his minority does not exempt

him from criminal responsibility for the reason that he acted with
discernment, yet it may be considered as a special mitigating circumstance
lowering the penalty by two (2) degrees.
Article 80 of the Revised Penal Code cannot be applied to the accused
because he was over eighteen (18) years old at the time of the trial
(People vs. Estefa, 47 Off Gaz. No. 11, 5652; 86 Phil. 104).
In view of the above special mitigating circumstances of minority, the
penalty imposed upon the accused is hereby modified by imposing upon him
four (4) years of prision correccional, to pay a fine of P10,000 and to
indemnify Alejo Enriquez Wong in the sum of P6,000, with subsidiary
imprisonment in case of insolvency in the payment of the fine and the
indemnity, with costs.
It is so ordered.

VALCESAR
yMACAMAY,

ESTIOCA

G.R. No. 173876

Petitioner,

Present:

YNARES-SANTIAGO, J.
Chairperson,
AUSTRIA-MARTINEZ,
-versus

CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

PEOPLE OF THEPHILIPPINES,

Promulgated:

Respondent.

June 27, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,
[1]
petitioner Valcesar Estioca y Macamay prays for the reversal of the
Decision[2] of the Court of Appeals in CA-G.R. CR No. 00036 dated 30 June
2006, affirming with modification the Decision[3] and Order[4] dated 5 April
2004 and 17 August 2004, respectively, of theOzamiz City Regional Trial
Court (RTC), Branch 35, in Criminal Case No. 3054, finding him guilty of
robbery under Article 299, subdivision (a), number (2) of the Revised Penal
Code.

Culled from the records are the following facts:

On 31 July 2001, an Information [5] was filed before the RTC charging
petitioner, Marksale Bacus (Bacus),
Kevin Boniao (Boniao)
and Emiliano Handoc (Handoc) with robbery, thus:

That on July 28, 2001, at about 8:00 oclock in the morning,

in the City of Ozamiz, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent of
gain, did then and there helping one another, willfully,
unlawfully, and feloniously break, destroy, and destroyed the
padlock of the main door of the classroom of MS. SELINA M.
PANAL and once inside, the accused took, stole and carried away
the following:

A.

One (1) Panasonic

worth P6,000.00;

Colored

TV

14

B.

One (1) Sharp Karaoke Tower Single

Player color black worth P6,000.00; and

C.

One (1) 3D Rota Aire Stand Fan color

brown worth P3,000.00;

belonging to the Ozamiz City Central School represented herein

by MS. SELINA M. PANAL, all valued at P15,000.00, to the
damage and prejudice of the said school thereof, in the
aforementioned sum of P15,000.00, Philippine Currency.

When arraigned on separate dates with the assistance of their

counsels de oficio,
petitioner, Bacus, Boniao and Handoc pleaded Not
[6]
guilty to the charge. Thereafter, trial on the merits ensued.

The prosecution presented as witnesses Nico Alforque (Nico) and Mrs.

Celina M. Panal (Mrs. Panal). Their testimonies, woven together, bear the
following:

On 28 July 2001 (Saturday), at about 8:00 in the morning, Nico, then

eleven years old and a Grade VI student of Ozamiz City Central School
(OCCS), and his cousin, Mark Alforque (Mark), went to the OCCS and cleaned
the classroom of a teacher named Mrs. Myrna Pactolin (Mrs. Pactolin). They
received P30.00 each from Mrs. Pactolin for the chore. Afterwards, Mark went
home while Nico stayed inside the OCCS because Mrs. Pactolin requested
him to get some waya-waya and dapna inside the OCCSs canal to be used as
fish food.[7]

While catching waya-waya and dapna inside the OCCSs canal, Nico saw
petitioner
and Bacus enter
the OCCSs premises
by
climbing
over
the OCCSs gate. Petitioner andBacus then proceeded to the classroom of
another teacher, Mrs. Panal, which was located near the OCCSs canal.
Thereupon, petitioner and Bacus destroyed the padlock of the classrooms
door using an iron bar and entered therein. Subsequently, petitioner
and Bacus walked out of the classroom carrying a television, a karaoke and
an electric fan, and thereafter brought them to the school gate. They went
over
the
gate
with
the
items
and
handed
them
over
to Boniao and Handoc who were positioned just outside the OCCSs gate.The
items
were
placed
inside
a
tricycle. After
petitioner, Bacus and Boniao boarded the tricycle, Handoc drove the same
and they sped away.[8]

On the following day, 29 July 2001, Mrs. Panal went to the OCCS for a
dance practice with her students. She proceeded to her classroom and
discovered that it was forcibly opened, and that the karaoke, television and
electric fan therein were missing. She immediately reported the incident to
the police. The OCCS principal informed her thatNico witnessed the
incident. Thereafter, petitioner, Bacus, Boniao and Handoc were charged with
robbery.[9]

The prosecution also submitted object evidence to buttress the

testimonies of its witnesses, to wit: (1) a T-shaped slightly curved iron bar,
which is 10 mm. by 12 inches in size, used in destroying the padlock of
Mrs. Panals classroom and marked as Exhibit A; and (2) a Yeti brand, colored
yellow, padlock used in Mrs. Panals classroom, marked as Exhibit B.

For its part, the defense presented the testimonies of

petitioner, Bacus, Rolly Agapay (Agapay), Boniao and Handoc to refute the
foregoing accusations. Petitioner and his co-accused denied any involvement
in the incident and interposed the defense of alibi.

Petitioner Estioca testified that on 28 July 2001, he cleaned his

house located at Laurel Street, Ozamiz City, from 8:00 in the morning up
to 10:00 in the morning. After cleaning the house, he ate lunch and
rested. At around 3:00 in the afternoon of the same day, he went to the
house of his neighbor/friend, Junjun Ho (Junjun), to help the latter in cleaning
his houseyard. However, Junjuns father arrived, and since the father and son
had to discuss important things, he decided to go home which was about
past 3:00 in the afternoon. Upon arriving home, his aunt, Myrna Macamay,
told him that some people had gone to the house looking for him. Later, two
unidentified persons, accompanied byBoniao, came to his house and brought
him to the City Hall Police Station for investigation as regards the incident.[10]

During the interrogation inside the police station, a certain Michael

approached him and inquired as to where he sold the television stolen from

the OCCS. He told Michael not to accuse him of stealing as it is not a good
joke. Michael called Bacus and Boniao who were then standing nearby, and
the two pointed to him as the one who sold the television. Afterwards, one of
the police officers therein told him to approach a certain Colonel Bation who
was also inside the police station. Upon approaching Colonel Bation, the
latter punched him in the stomach causing him to kneel down in pain.
Colonel Bation asked him where he sold the television but he told him he had
nothing to do with it.Colonel Bation took a whip and smacked him with it
several times on the body. An emergency hospital worker named Dennis
Fuentes, who was also present, stripped him naked and burned his scrotum,
chest and palm with lighter, cigarette butts and matchsticks. Thereafter, he
was jailed.[11]

Bacus, a resident of Barangay Lam-an, Ozamiz City, declared that on

the night of 27 July 2001, he slept at the guardhouse of the Ozamiz City
National High School (OCNHS) which is located in front of the OCCS. On the
following day, 28 July 2001, at about 7:00 in the morning, he woke up and
helped his mother in selling bananas beside their house which is situated in
front of the OCNHS. At about 11:00 in the morning of the same day, while on
his way to Barangay Tinago, Ozamiz City, to buy chicken feed, a certain
Michael Panal and an unidentified companion blocked his path and asked him
if he was the one who robbed the OCCS. He told the two that he had nothing
to do with the incident. The two then brought him to the nearby seashore
where they were met by a group of persons headed by a
certain Maning. Thereupon, they tortured and beat him for refusing to admit
involvement in the incident. Subsequently, he was taken to the Ozamiz City
Hall for investigation.[12]

Agapay, an OCNHS working student and a resident of the said school,

narrated that he knows Bacus because the latter resided in a house located
just in front of the OCNHS; that he and Bacus usually slept at the guardhouse
of the OCNHS; that on the night of 27 July 2001, he and Bacus slept at the
guardhouse of the OCNHS; and that Bacuswoke up on the following day, 28
July 2001, at about 8:30 in the morning.[13]

Boniao, 14 years old and resident of Barangay Tinago, Ozamiz City,

testified that on 28 July 2001, at 8:00 in the morning, he cleaned his parents
house and thereafter watched television. On 30 July 2001, at 7:00 in the
morning, he and Bacus went to the OCCS to pick up plastic bottles scattered
therein. After gathering some plastic bottles, he and Bacus left the OCCS.
While on their way home, a certain Leoncio apprehended him and brought
him to his parents house. Upon arriving home, his mother beat him and
forbade him to go out of the house. Subsequently, several persons went to
his parents house and arrested him. He was taken to a nearby port where he
was asked to identify the persons involved in the robbery of the OCCS. When
he could not say anything about the incident, he was brought to the City Hall
Police Station where he was jailed.[14]

Handoc, a pedicab driver residing at Barangay Tinago, Ozamiz City,

stated that he helped his brother-in-law in quarrying gravel at Panayay Diot, Clarin, MisamisOccidental, on the whole morning of 28 July 2001;
that he went back to Barangay Tinago, Ozamiz City, at about 4:00 in the
afternoon of 28 July 2001; that Tomas Medina, the former barangay captain,
arrested him and took him to the City Hall; that police officers in the City Hall
inquired as to where he sold the television stolen from the OCCS but he
replied that he had nothing to do with it; that he was repeatedly beaten by
police officers for denying any involvement in the incident; and that he was
detained at the City Hall Jail.[15]

After trial, the RTC rendered a Decision on 5 April 2004 convicting

petitioner, Bacus, Boniao and Handoc of
robbery
under
Article
299,
subdivision (a), number (2), paragraph 4 of the Revised Penal Code. The trial
court imposed on petitioner, Bacus and Handoc an indeterminate penalty
ranging from six years and one day of prision mayor as minimum, to
fourteen years, eight months and one day of reclusion temporal as
maximum. Since Boniao was a minor (14 years old) when he participated in
the heist, he was sentenced to a lower prison term of six months
of arresto mayor as
minimum
to
four
years
and
two
months
of prision correccional as
maximum. They
were
also
ordered
to
payP15,000.00 as civil liability. Nonetheless, the sentence meted out
to Boniao was suspended and his commitment to the Department of Social

Welfare and Development (DSWD) was ordered pursuant to Presidential

Decree No. 603.[16] The dispositive portion of the decision reads:

WHEREFORE,
finding
accused Valcesar Estioca y Macamay alias Bango, Marksale Bacu
s alias Macoy, Emeliano Handoc y Bullares alias Eming and minor
Kevin Boniao guilty beyond reasonable doubt of the crime of
robbery defined and penalized under Article 299, subsection (a),
paragraph 2 of the Revised Penal Code and upon applying Art.
64, paragraph 1 of the Revised Penal Code and Indeterminate
Sentence Law and Privileged Mitigating Circumstance of two (2)
degrees lower than that prescribed for by law (Art. 68, par. 1)
unto Kevin Boniao, a minor, who was 14 years old at the time of
the commission of the crime, this court hereby sentences them
(a) Valcesar Estioca, Marksale Bacus, Emeliano Handoc to suffer
the indeterminate penalty ranging from six (6) years and one (1)
day of Prision Mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of Reclusion Temporal as maximum and
(b) KevinBoniao (minor) to suffer the penalty of six (6) months
of Arresto Mayor as minimum to four (4) years and two (2)
months of Prision Correccional as maximum and all of the
accused to suffer the accessory penalty provided for by law, to
indemnify the civil liability of P15,000.00 and to pay the costs.

With respect to Kevin Boniao, the sentence imposed upon him is

hereby suspended pursuant to PD 603 as amended and he is
therefore committed to the Department of Social Welfare and
Development (DSWD) for reformation, otherwise if he is
incorrigible, then the sentence shall be imposed upon him by the
court. The DSWD is hereby ordered to have close surveillance
and supervision upon him and to constantly observe the
development of his behavior and to submit to the court a
report/recommendation on the matter as prescribed for by law.

The Order of this court dated August 20, 2001 is hereby

cancelled and revoked.

The accused are entitled 4/5 of the time they were placed under
preventive imprisonment.

The cash bond in the amount of P24,000 posted by

accused Valcesar Estioca is hereby cancelled and the same is
ordered released and returned to the bondsman concerned.[17]

Petitioner, Bacus, Boniao and Handoc filed

a
Motion
for
Reconsideration of the RTC Decision arguing that there was no conspiracy
among them and that the penalty imposed was erroneous.[18] On 17 August
2004, the RTC issued an Order partially granting the motion. [19] The trial
court lowered the penalty imposed on them but affirmed its earlier finding
of conspiracy and conviction. It also ordered the DSWD to release and turn
over Boniao to his parents. It concluded:

WHEREFORE, as herein modified, the imposable

indeterminate
penalty
meted
to
accused Valcesar Estioca, Marksale Bacus and Emeliano Handoc
being guilty beyond reasonable doubt of he crime of Robbery,
defined and penalized under paragraph 4 of Art. 299 of the
Revised Penal Code upon applying Indeterminate Sentence Law
with paragraph 1 of Art. 64, Revised Penal Code, ranges from
four (4) years, two (2) months and one (1) day
of prision correccional as minimum to eight (8) years and one (1)
day of prision mayor as maximum with accessory penalty
provided for by law; and for minor accused Kevin Boniao, the
penalty of four (4) months of arresto mayor upon applying the
privileged mitigating circumstance in Art. 68, paragraph 1 of the
Revised Penal Code with Art. 64, paragraph 1 of the same
Code. All of the accused shall indemnify jointly the civil liability
of P15,000.00 and to pay the costs.

As aforestated, minor accuser Kevin Boniao is hereby ordered

released from DSWD and returned to the custody of his parents.
[20]

Unsatisfied, petitioner appealed the RTC Decision and Order before the
Court of Appeals.[21] Bacus, Boniao and Handoc did not appeal their
conviction anymore. On 30 June 2006, the Court of Appeals promulgated its
Decision affirming with modification the RTC Decision and Order. The
appellate court held that Boniao is exempt from criminal liability but his civil
liability remains pursuant to Republic Act No. 9344 otherwise known as The
Juvenile Justice and Welfare Act of 2006, thus:

On a final note, considering that it is axiomatic that an appeal

opens the entire case for review and considering further that any
decision rendered in the appeal does not bind those who did not
appeal except if beneficial to them, We hold that herein accused
Kevin Boniao should be acquitted and his criminal liability
extinguished pursuant to Republic Act No. 9344, otherwise
known as the Juvenile Justice and Welfare Act of 2006, which took
effect on May 22, 2006. The pertinent provision thereof provides,
thus:

Sec. 6. Minimum Age of Criminal Responsibility. A

child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from
criminal liability.However, the child shall be subjected
to Section 20 of this Act.

xxxx

The exemption from criminal liability herein

established does not include exemption from civil

liability, which shall be enforced in accordance with

existing laws.

WHEREFORE, premises foregoing, the appeal is hereby

DISMISSED and the assailed Decision and the August 17, 2004
Order are hereby AFFIRMED subject to the modification that
accused KEVIN BONIAO is hereby ACQUITTED of the crime
charged pursuant to Section 6 of R.A. No. 9344, without prejudice
to his civil liability.[22]

On 21 August 2006, petitioner filed the instant petition on the following

grounds:
I.

WHETHER OR NOT UNDER THE FACTS AND CIRCUMSTANCES OF

THE ALLEGED ROBBERY WHICH HAPPENED ON BROAD DAY LIGHT
AND IN THE PRESENCE OF ALLEGED TWO (2) EYEWITNESSES
UNDER HUMAN EXPERIENCE CAN POSSIBLY BE PERPETUATED BY
THE ACCUSED;

II.

WHETHER OR NOT ALLEGED LONE WITNESS NICO ALFORQUE

COULD HAVE POSSIBLY WITNESS[ED] THE ALLEGED ROBBERY
INCIDENT.[23]

Simply put, the Court is called upon to determine whether the

testimony of Nico is credible given the surrounding circumstances of the
incident.

Petitioner maintains that the testimony of Nico regarding the fact that
the robbery was committed in broad daylight (8:00 in the morning) and in full
view of Nico is against human nature. He asserts that no person would dare
commit robbery in broad daylight and in the presence of other people
because they would be easily identified.[24]

Petitioner further claims that it was impossible for Nico to see

petitioner and Bacus destroy the door of Mrs. Panals classroom because,
according to Nicos own Affidavit,Nico was inside the classroom of
Mrs. Pactolin during
the
incident. He
insists
that
the
walls
of
[25]
Mrs. Pactolins classroom prevented Nico from witnessing the incident.

In resolving issues pertaining to the credibility of the witnesses, this

Court is guided by the following well-settled principles: (1) the reviewing
court will not disturb the findings of the lower court, unless there is a
showing that it overlooked, misunderstood or misapplied some fact or
circumstance of weight and substance that may affect the result of the case;
(2) the findings of the trial court on the credibility of witnesses are entitled to
great respect and even finality, as it had the opportunity to examine their
demeanor when they testified on the witness stand; and (3) a witness who
testifies in a clear, positive and convincing manner is a credible witness.[26]

After carefully reviewing the evidence on record and applying the

foregoing parameters to this case, we find no cogent reason to overturn the
factual finding of the RTC that Nicos testimony is credible. As an eyewitness
to
the
incident, Nico positively
identified
petitioner, Bacus, Boniao and Handoc as those who robbed the OCCS of an
electric fan, television and karaoke on the morning of 28 July 2001. His direct

account of how petitioner, Bacus, Boniao and Handoc helped one another in
robbing the OCCS is candid and convincing, thus:

Q: Now, on July 28, 2001 at about 8:00 oclock in the morning,

could you be kind enough to tell us where were you at that
time?

A: We were cleaning the room of the school, sir.

Q: What particular school are you referring to?

A: At Ozamis Central School, sir.

Q: Would you be able to tell us the name of the teacher of that

particular classroom you were cleaning?

A: The classroom of Mrs. Pactolin, sir.

Q: Why did you clean the classroom of Mrs. Pactolin, were you
being paid?

A: Yes sir.

Q: How much?

A: P30.00 sir.

Q: Were you alone in cleaning the classroom of Mts. Pactolin at

that time?

A: We were two sir.

Q: Would you be kind enough to tell this honorable court who

was your companion at that time?

A: My cousin Mark Alforque sir.

Q: Now, after cleaning the classroom of Mrs. Pactolin together

with Mark Alforque, what did you do next?

A: My cousin went home and I was left in the classroom because I

was requested by my teacher to get fish food.

Q: What fish food are you talking about Mr. Witness?

A: Wayawaya and Dapna sir.

Q: While getting the fishfood for your teacher, did you observed
(sic) anything unusual that happened?

A: Yes, sir.

Q: Would you be kind enough to tell this Court now what did you
observed (sic) that time when you were getting
the fishfood?

A: I saw somebody climbed the gate sir.

xxxx

Q: Where were you at that time Mr. Nico Alforque?

A: I was inside the school sir.

Q: What particular place are you referring?

A: Near the canal sir.

Q: And would you be able to tell us also how far were you when
you saw these persons climbing the gate?

A: I was a little bit farther sir.

Q: After you saw the two persons climbing the gate, what
happened after that?

A: I saw that the padlock was opened.

Q: What particular padlock are you referring to?

A: I saw a padlock made of iron.

Q: And what particular classroom or place were these persons

you saw that they were opening the padlock?

A: The classroom of Mrs. Celina Panal sir.

Q: Who is this Mrs. Celina Panal?

A: A teacher sir.

Q: Would you be able to tell us whose classroom these persons

you saw opening the padlock?

A: The classroom of Mrs. Panal sir.

Q: Would you be able to tell us how did they opened (sic) the
classroom of Mrs. Celina Panal?

A: The room was opened with the used (sic) of an iron bar sir.

Q: I am showing to you this iron bar, what relation has this iron
bar to the one you said a while ago?

A: That is the one used by the persons to open the classroom sir.

TO COURT:

We would like to request your honor that this iron bar be marked
as our Exh. A.

COURT:

Mark it.

TO WITNESS:

Q: And what about the padlock, would you be able to identify the
padlock that was used (sic) by these persons?

A: Yes sir.

Q: I am showing to you this padlock, would you kindly tell this

Court what relation this padlock to the one you stated a
while ago?

A: That is the padlock used (sic) by them sir.

TO COURT:

For identification purposes your honor, May I respectfully request

that this padlock be marked as Exh. B.

COURT:

Mark it.

TO WITNESS:

Q: Now Mr. Nico Alforque, you said that there were two persons
who opened the classroom of Mrs. Celina Panal, would you
kindly identify these persons if you can see them now in
court?

A: Yes sir.

Q: Would you kindly point to them if they are now here in court?

The witness is pointing to a person whom when asked of his

name declared that he is Valcesar Estioca.

A: And would you kindly

of Valcesar Estioca?

tell

us

The

to

witness is pointing
is Marksale Bacus.

also

person

the

companion

whose

name

Q: These are the persons who destroyed the padlock of the

classroom of Mrs. Celina Panal?

A: Yes sir.

Q: After destroying the padlock Mr. Nico Alforque, what did you
observed?

A: I saw that they brought out the colored TV, the Karaoke and
the Electric Fan.

Q: You said that these persons after destroying the padlock, took
the colored TV, the Karaoke and the Electric Fan, where did
they go?

A: After taking these things, they went out of the classroom sir.

Q: And after going out of the classroom where did they go?

A: They went to the gate sir.

Q: And at the gate, what did you observed (sic) if any?

A: I saw that there was another person sir.

Q: And what was this person doing at the gate?

A: They passed on the things through the person at the gate sir.

Q: To whom did these persons passed these things at the gate?

The witness is pointing to a man whose name is Kevin Boniao.

Q: What else did you observed (sic) at the gate?

A: I saw that there is another person.

Q: Who was that person?

The witness is pointing to accused Emeliano Handoc.

Q: And
what
was Emeliano Handoc doing
Mr. Nico Alforque?

at

the

gate

A: He was waiting at the gate sir.

Q: Now after you saw these persons, what were the two accused
doing at the gate when they passed the things to
Kevin Boniao?

A: They were riding the tricycle sir.

Q: Could you be able to tell us who was driving the tricycle?

The witness is pointing to Emeliano Handoc.

Q: And after seeing these persons what did you observed (sic)
after that?

A: I did not see anything because I went away sir.

Q: You mean to say that all those persons went away when you
went away?

A: Yes sir.

Q: They went together, is that what you mean?

A: Yes sir.

Q: Are they walking or riding?

A: They were riding in a tricycle sir.

COURT:

Q: Whose tricycle?

The witness is pointing to Emeliano Handoc.[27]

Mrs. Panal corroborated the foregoing testimony of Nico on relevant

points.[28]

The foregoing testimonies are consistent with the object evidence

submitted by the prosecution. The RTC and the Court of Appeals found the
testimonies of Nico and Mrs.Panal to be truthful and unequivocal and, as
such, prevailed over the denial and alibi of petitioner and his cohorts. Both
courts also found no ill motive on the part of Nico and Mrs. Panal.

It is not incredible or against human nature for petitioner and his

companions to have committed the robbery in broad daylight and in full view
of Nico. There is no standard behavior of criminals before, during and after
the commission of a crime. [29] Some may be so bold and daring in committing
a crime in broad daylight and in full view of other persons. Others may be so
cunning such that they commit crime in the darkness of the night to avoid
detection and arrest by peace officers.[30]

In People v. Toledo, Sr.,[31] we sustained the credibility of the eyewitness

and upheld the conviction of the accused for homicide despite the
circumstances existing at the crime scene -- broad daylight, full view of many
persons inside the school compound, and presence of inhabited houses. It
was also ruled that crimes may be committed in broad daylight and that
criminals are not expected to be logical or to act normally in executing their
felonious designs because committing a crime itself is not logical or
reasonable, viz:

Appellant [accused] also asserts that the testimony of

Ronnie [eyewitness] was inherently improbable. He insists that
the circumstances existing at the crime scene -- broad
daylight, full view of many persons inside the school
compound,
presence
of
inhabited
houses around
the purok -- were such that a crime could not be committed.

For a number of reasons, we find no merit in this

contention. First, appellants premise that there were many
persons in the school compound is not supported by the
evidence on record.Second, crimes are known to have been
committed in broad daylight within the vicinity of
inhabited houses. Third, although it would be illogical and
unreasonable for normal persons in full control of their
faculties to commit a crime under such circumstances,
the same does not hold true for all, especially those
under the grip of criminal impulses. We cannot expect the
mind of such persons to work within the parameters of
what is normal, logical or reasonable, as the commission
of a crime is not normal, logical or reasonable.Hence, the
circumstances present in this case do not rule out
appellants commission of the crime.[32]

Besides, as aptly observed by the Office of the Solicitor General, [33] it is

not improbable for petitioner and his cohorts to have committed the robbery
as narrated by Nicobecause it happened on a Saturday, a non-school day in
the OCCS. Apparently, petitioner and his companions expected that none or
only few persons would go to the OCCS on said date.

A perusal of the transcript of stenographic notes shows that Nico was

in a canal located inside the OCCS catching waya-waya and dapna when he
saw the incident, and was not inside the enclosed classroom of
Mrs. Pactolin as alleged by petitioner.[34] Nico declared that he clearly saw the
incident and that nothing blocked his vision.[35] Nicoremained steadfast and
consistent in his foregoing testimony even on cross examination, thus:

Q: From the place where you were gathering fishfood at that time
you cannot clearly see the room of Mrs. Panal, am I right?

A: I can see it clearly sir.

Q: You have not seen what were those persons doing inside the
room of Mrs. Panal?

A: I saw them sir.

Q: You saw them taking away the Colored TV, Karaoke and the
Electric Fan?

A: Yes sir.

Q: Who among them took with him the TV?

The witness is pointing to Valcesar Estioca.

Q: Aside from the TV he also carry away with him the Electric Fan
and Karaoke?

A: It was his companion sir.

xxxx
Q: Now at the gate you saw how many persons aside from that
two who entered the room of Mrs. Panal?

A: I saw three persons sir.

Q: Was these three persons outside the gate or inside the gate?

A: They were inside the gate sir.

Q: And that was the time you saw the TV, Karaoke and Electric
Fan turned over to those persons at the gate?

A: Yes sir.

Q: After that, those three persons left the place?

A: Yes sir.

Q: What about those two persons you saw entering the room of
Mrs. Panal where did they go?

A: They went out sir.[36]

The alleged inconsistency between the affidavit of Nico and his court
testimony is inconsequential. Inconsistencies between the sworn statement
or affidavit and direct testimony given in open court do not necessarily
discredit the witness since an affidavit, being taken ex parte, is oftentimes
incomplete and is generally regarded as inferior to the testimony of the
witness in open court. Judicial notice can be taken of the fact that
testimonies given during trial are much more exact and elaborate than those
stated in sworn statements, usually being incomplete and inaccurate for a
variety of reasons, at times because of partial and innocent suggestions or
for want of specific inquiries. Additionally, an extrajudicial statement or

affidavit is generally not prepared by the affiant himself but by another who
uses his own language in writing the affiants statement; hence, omissions
and misunderstandings by the writer are not infrequent. Indeed, the
prosecution witnesses direct and categorical declarations on the witness
stand are superior to their extrajudicial statements.[37]

Since we find no error in the factual finding of the RTC, as affirmed by

the Court of Appeals, that the testimony of eyewitness Nico is credible, then
the
judgment
of
conviction
against
petitioner, Bacus, Boniao,
and Handoc should be affirmed. The positive and credible testimony of a lone
eyewitness, such as Nico, is sufficient to support a conviction.[38]

We shall now determine the propriety of the penalties imposed on

petitioner, Bacus, Boniao and Handoc.

Article 299, subdivision (a), number (2), paragraph 4 of the Revised

Penal Code provides that the penalty for robbery with use of force upon
things where the value of the property taken exceeds P250.00 and the
offender does not carry arms, as in this case, is prision mayor. Since no
aggravating or mitigating circumstance was alleged and proven in this case,
the penalty becomes prision mayor in its medium period in accordance with
Article 64, paragraph 1 of the Revised Penal Code. Applying the
Indeterminate Sentence Law, the range of the penalty now
is prision correccional in
any
of
its
periods
as
minimum
to prision mayor medium as its maximum. Thus, the RTC and the Court of
Appeals were correct in imposing on petitioner, Bacus and Handoc, a prison
term of four years, two months, and one day of prision correccional as
minimum, to eight years and one day of prision mayor as maximum, because
it is within the aforesaid range of penalty.

With regard to Boniao, who was a minor (14 years old) at the time he
committed the robbery, Article 68, paragraph 1 of the Revised Penal Code
instructs that the penalty imposable on him, which is prision mayor, shall be

lowered by two degrees. The RTC, therefore, acted accordingly in sentencing

him to four months of arresto mayor.

Nonetheless, as correctly ruled by the Court of Appeals, Boniao, who

was barely 14 years of age at the time he committed the crime, should be
exempt from criminal liability and should be released to the custody of his
parents or guardian pursuant to Sections 6 and 20 of Republic Act No. 9344,
otherwise known as The Juvenile Justice and Welfare Act of 2006, to wit:

SEC. 6. Minimum Age of Criminal Responsibility. A

child fifteen years of age or under at the time of the
commission of the offense shall be exempt from criminal
liability. However, the child shall be subjected to an intervention
program pursuant to Section 20 of this Act.

xxxx

The exemption from criminal liability herein established

does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.

Sec. 20. Children Below the Age of Criminal Responsibility. If it

has been determined that the child taken into custody is fifteen
(15) years old or below, the authority which will have an initial
contact with the child has the duty to immediately release the
child to the custody of his/her parents or guardian, or in the
absence thereof, the childs nearest relative. Said authority shall
give notice to the local social welfare and development officer
who will determine the appropriate programs in consultation with
the child and to the person having custody over the child. If the
parents, guardians or nearest relatives cannot be located, or if
they refuse to take custody, the child may be released to any of

the following: a duly registered nongovernmental or religious

organization;
a barangay official
or
a
member
of
the Barangay Council for the Protection of Children (BCPC); a
local social welfare and development officer; or, when and where
appropriate, the DSWD. If the child referred to herein has been
found by the Local Social Welfare and Development Office to be
abandoned, neglected or abused by his parents, or in the event
that the parents will not comply with the prevention program, the
proper petition for involuntary commitment shall be filed by the
DSWD or the Local Social Welfare and Development Office
pursuant to Presidential Decree No. 603, otherwise known as The
Child and Youth Welfare Code.

Although the crime was committed on 28 July 2001 and Republic Act
No. 9344 took effect only on 20 May 2006, the said law should be given
retroactive effect in favor ofBoniao who was not shown to be a habitual
criminal.[39] This is based on Article 22 of the Revised Penal Code which
provides:

Retroactive effect of penal laws. Penal laws shall have a

retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same.

However, as Boniaos civil liability is not extinguished pursuant to the

second paragraph of Section 6, Republic Act No. 9344, Boniao should be
held jointly liable with petitioner, Bacus, and Handoc for the payment of
civil liability in the amount of P15,000.00 representing the stolen items.

WHEREFORE, in view of the foregoing, the petition is

hereby DENIED. The Decision of the Court of Appeals dated 30 June
2006 in CA-G.R. CR No. 00036 isAFFIRMED in toto. Costs against
petitioner.

SO ORDERED.

ROBERT SIERRA y CANEDA,

Petitioner,

G.R. No. 182941

Present:

QUISUMBING, J., Chairperson,

CARPIO-MORALES
**

- versus -

CHICO-NAZARIO,

***

LEONARDO-DE CASTRO, and

BRION, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated:

July 3, 2009

x--------------------------------------------------------------------------------------- x
DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review
on certiorari[1] of
Appeals

[4]

the

Decision[2] and

Resolution[3] of

the

Court

of

(CA) that affirmed with modification his conviction for the crime of

qualified rape rendered by the Regional Trial Court (RTC), Branch 159, Pasig
City, in its decision of April 5, 2006.
THE ANTECEDENT FACTS
In August 2000, thirteen-year-old AAA[5] was playing with her friend BBB in
the second floor of her familys house in Palatiw, Pasig. The petitioner arrived
holding a knife and told AAA and BBB that he wanted to play with them. The
petitioner

then

undressed

BBB

and

had

sexual

intercourse

with

her. Afterwards, he turned to AAA, undressed her, and also had sexual
intercourse with her by inserting his male organ into hers. The petitioner
warned AAA not to tell anybody of what they did.
AAA subsequently disclosed the incident to Elena Gallano (her teacher) and
to Dolores Mangantula (the parent of a classmate), who both accompanied
AAA to the barangayoffice. AAA was later subjected to physical examination
that revealed a laceration on her hymen consistent with her claim of sexual
abuse. On the basis of the complaint and the physical findings, the petitioner
was charged with rape under the following Information:
On or about August 5, 2000, in Pasig City and within the
jurisdiction of this Honorable Court, the accused, a minor, 15
years old, with lewd designs and by means of force, violence and
intimidation,

did

then

and

there

willfully,

unlawfully

and

feloniously have sexual intercourse with his (accused) sister,

AAA, thirteen years of age, against the latters will and consent.

Contrary to law.[6]

The petitioner pleaded not guilty to the charge and raised the defenses
of denial and alibi. He claimed that he was selling cigarettes at the time of
the alleged rape. He also claimed that AAA only invented her story because
she bore him a grudge for the beatings he gave her. The parties mother
(CCC) supported the petitioners story; she also stated that AAA was a
troublemaker. Both CCC and son testified that the petitioner was fifteen (15)
years old when the alleged incident happened.[7]
The defense also presented BBB who denied that the petitioner raped
her; she confirmed the petitioners claim that AAA bore her brother a grudge.
On April 5, 2006, the RTC convicted the petitioner of qualified rape as
follows:
WHEREFORE, in view of the foregoing, this Court finds the
accused ROBERT SIERRA y CANEDA GUILTY beyond reasonable
doubt of the crime of rape (Violation of R.A. 8353 in relation to SC
A.M. 99-1-13) and hereby sentences the said juvenile in conflict
with law to suffer the penalty of imprisonment of reclusion
perpetua; and to indemnify the victim the amount ofP75,000 as
civil indemnity, P50,000 as moral damages, and P25,000 as
exemplary damages.

SO ORDERED.[8]

The petitioner elevated this RTC decision to the CA by attacking AAAs

credibility. He also invoked paragraph 1, Section 6 of R.A. No. 9344 (Juvenile
Justice and Welfare Act of 2006)[9] to exempt him from criminal liability
considering that he was only 15 years old at the time the crime was
committed.
The CA nevertheless affirmed the petitioners conviction with modification as
to penalty as follows:
WHEREFORE, finding that the trial court did not err in
convicting

Robert

Sierra,

the

assailed

Decision

is

hereby AFFIRMED with MODIFICATION that Robert Sierra

has to suffer the penalty of imprisonment of RECLUSION
TEMPORAL MAXIMUM. The

award

of

damages

are

likewise affirmed.

SO ORDERED.[10]

In ruling that the petitioner was not exempt from criminal liability, the
CA held:
As to the penalty, We agree with the Office of the Solicitor
General that Robert is not exempt from liability. First, it was not
clearly established and proved by the defense that Robert was
15 years old or below at the time of the commission of the crime.

It was incumbent for the defense to present Roberts birth

certificate if it was to invoke Section 64 of Republic Act No. 9344.
Neither is the suspension of sentence available to Robert as the
Supreme Court, in one case, clarified that:

We note that, in the meantime, Rep. Act No. 9344

took effect on May 20, 2006. Section 38 of the law
reads:

SEC. 38. Automatic Suspension of Sentence.

Once the child who is under eighteen (18)
years of age at the time of the commission of
the offense is found guilty of the offense
charged,

the

court

shall

determine

and

ascertain any civil liability which may have

resulted from the offense committed. However,
instead

of

pronouncing

the

judgment

of

conviction, the court shall place the child in

conflict
sentence,

with

the

law

without

application: Provided,

under

suspended

need
however,

of
That

suspension of sentence shall still be applied

even if the juvenile is already eighteen (18)

years of age or more at the time of the

pronouncement of his/her guilt.

Upon

suspension

of

sentence

and

after

considering the various circumstances of the

child, the court shall impose the appropriate
disposition

measures

as

provided

in

the

Supreme Court on Juveniles in Conflict with the

Law.

The law merely amended Article 192 of P.D. No.

603, as amended by A.M. No. 02-1-18-SC, in that the
suspension of sentence shall be enjoyed by the
juvenile even if he is already 18 years of age or more
at the time of the pronouncement of his/her guilt.
The other disqualifications in Article 192 of P.D. No.
603, as amended, and Section 32 of A.M. No. 02-118-SC have not been deleted from Section 38
of Republic Act No. 9344. Evidently, the intention of
Congress was to maintain the other disqualifications
as provided in Article 192 of P.D. No. 603, as
amended, and Section 32 of A.M. No. 02-1-18-SC.
Hence, juveniles who have been convicted of a crime

the imposable penalty for which isreclusion perpetua,

life imprisonment or reclusion perpetua to death or
death, are disqualified from having their sentences
suspended.[11]

The CA denied the petitioners subsequent motion for reconsideration;

hence, the present petition.
THE ISSUES
The petitioner no longer assails the prosecutions evidence on his guilt
of the crime charged; what he now assails is the failure of the CA to apply
paragraph 1, Section 6[12]of R.A. No. 9344 under the following issues:
(1) Whether or not the CA erred in not applying the provisions of R.A.
No. 9344 on the petitioners exemption from criminal liability;
(2) Whether or not the CA erred in ruling that it was incumbent for the
defense to present the petitioners birth certificate to invoke Section
64 of R.A. No. 9344 when the burden of proving his age lies with the
prosecution by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v.

Hon. Gubaton[13] thereby denying the petitioner the benefit of
exemption from criminal liability under R.A. No. 9344.
The threshold issue in this case is the determination of who bears the
burden of proof for purposes of determining exemption from criminal liability
based on the age of the petitioner at the time the crime was committed.

The petitioner posits that the burden of proof should be on the

prosecution as the party who stands to lose the case if no evidence is
presented to show that the petitioner was not a 15-year old minor entitled to
the exempting benefit provided under Section 6 of R.A. No. 9344. [14] He
additionally claims that Sections 3,[15] 7,[16] and 68[17] of the law also provide a
presumption of minority in favor of a child in conflict with the law, so that
any doubt regarding his age should be resolved in his favor.
The petitioner further submits that the undisputed facts and evidence
on record specifically: the allegation of the Information, the testimonies of
the petitioner and CCC that the prosecution never objected to, and the
findings of the RTC established that he was not more than 15 years old at the
time of the commission of the crime.
The Peoples Comment, through the Office of the Solicitor General
(OSG), counters that the burden belongs to the petitioner who should have
presented his birth certificate or other documentary evidence proving that
his age was 15 years or below. The OSG also stressed that while petitioner is
presumed to be a minor, he is disqualified to have his sentence suspended
following the ruling in Declarador v. Hon. Gubaton.[18]
THE COURTS RULING
We grant the petition.
We examine at the outset the prosecutions evidence and the findings
of the lower courts on the petitioners guilt, since the petition opens the
whole case for review and the issues before us are predicated on the
petitioners guilt of the crime charged. A determination of guilt is likewise
relevant under the terms of R.A. No. 9344 since its exempting effect is only
on the criminal, not on the civil, liability.
We see no compelling reason, after examination of the CA decision and
the records of the case, to deviate from the lower courts findings of guilt. The
records show that the prosecution established all the elements of the crime
charged through the credible testimony of AAA and the other corroborating

evidence; sexual intercourse did indeed take place as the information

charged.[19] As against AAAs testimony, the petitioner could only raise the
defenses of denial and alibi defenses that, in a long line of cases, we have
held to be inherently weak unless supported by clear and convincing
evidence; the petitioner failed to present this required evidentiary support.
[20]

We have held, too, that as negative defenses, denial and alibi cannot

prevail over the credible and positive testimony of the complainant. [21] We
sustain the lower courts on the issue of credibility, as we see no compelling
reason to doubt the validity of their conclusions in this regard.
While the defense, on appeal, raises a new ground i.e., exemption from
criminal liability under R.A. No. 9344 that implies an admission of guilt, this
consideration in no way swayed the conclusion we made above, as the
defense is entitled to present all alternative defenses available to it, even
inconsistent ones. We note, too, that the defenses claim of exemption from
liability was made for the first time in its appeal to the CA. While this may
initially imply an essential change of theory that is usually disallowed on
appeal for reasons of fairness, [22] no essential change is really involved as
the claim for exemption from liability is not incompatible with the evidence
submitted below and with the lower courts conclusion that the petitioner is
guilty of the crime charged. An exempting circumstance, by its nature,
admits that criminal and civil liabilities exist, but the accused is freed from
criminal liability; in other words, the accused committed a crime, but he
cannot be held criminally liable therefor because of an exemption granted by
law.In admitting this type of defense on appeal, we are not unmindful, too,
that the appeal of a criminal case (even one made under Rule 45) opens the
whole case for review, even on questions that the parties did not raise. [23] By
mandate of the Constitution, no less, we are bound to look into every
circumstance and resolve every doubt in favor of the accused. [24] It is with
these considerations in mind and in obedience to the direct and more
specific commands of R.A. No. 9344 on how the cases of children in conflict
with the law should be handled that we rule in this Rule 45 petition.
We find a review of the facts of the present case and of the applicable
law on exemption from liability compelling because of the patent errors the

CA committed in these regards. Specifically, the CAs findings of fact on the

issues of age and minority, premised on the supposed absence of evidence,
are contradicted by the evidence on record; it also manifestly overlooked
certain relevant facts not disputed by the parties that, if properly considered,
would justify a different conclusion.[ 2 5 ]
In tackling the issues of age and minority, we stress at the outset that
the ages of both the petitioner and the complaining victim are material and
are at issue. The age of the petitioner is critical for purposes of his
entitlement to exemption from criminal liability under R.A. No. 9344, while
the age of the latter is material in characterizing the crime committed and in
considering the resulting civil liability that R.A. No. 9344 does not remove.
Minority as an Exempting Circumstance
R.A. No. 9344 was enacted into law on April 28, 2006 and took effect
on May 20, 2006. Its intent is to promote and protect the rights of a child in
conflict with the law or a child at risk by providing a system that would
ensure that children are dealt with in a manner appropriate to their wellbeing through a variety of disposition measures such as care, guidance and
supervision orders, counseling, probation, foster care, education and
vocational training programs and other alternatives to institutional care.
[26]

More importantly in the context of this case, this law modifies as well the

minimum age limit of criminal irresponsibility for minor offenders; it changed

what paragraphs 2 and 3 of Article 12 of the Revised Penal Code (RPC), as
amended, previously provided i.e., from under nine years of age and above
nine years of age and under fifteen (who acted without discernment) to
fifteen years old or under and above fifteen but below 18 (who acted without
discernment) in determining exemption from criminal liability. In providing
exemption, the new law as the old paragraphs 2 and 3, Article 12 of the RPC
did presumes that the minor offenders completely lack the intelligence to
distinguish right from wrong, so that their acts are deemed involuntary ones
for which they cannot be held accountable. [27] The current law also drew its
changes from the principle of restorative justice that it espouses; it considers
the ages 9 to 15 years as formative years and gives minors of these ages a
chance to right their wrong through diversion and intervention measures.[28]

In the present case, the petitioner claims total exemption from criminal
liability because he was not more than 15 years old at the time the rape took
place. The CA disbelieved this claim for the petitioners failure to present his
birth certificate as required by Section 64 of R.A. No. 9344. [29] The CA also
found him disqualified to avail of a suspension of sentence because the
imposable penalty for the crime of rape is reclusion perpetua to death.
Burden of Proof
Burden of proof, under Section 1, Rule 131 of the Rules on
Evidence, refers to the duty of a party to present evidence on the facts in
issue in order to establish his or her claim or defense. In a criminal case, the
burden of proof to establish the guilt of the accused falls upon the
prosecution which has the duty to prove all the essential ingredients of the
crime. The prosecution completes its case as soon as it has presented the
evidence it believes is sufficient to prove the required elements. At this point,
the burden of evidence shifts to the defense to disprove what the
prosecution has shown by evidence, or to prove by evidence the
circumstances showing that the accused did not commit the crime charged
or cannot otherwise be held liable therefor. In the present case, the
prosecution completed its evidence and had done everything that the law
requires it to do. The burden of evidence has now shifted to the defense
which now claims, by an affirmative defense, that the accused, even if guilty,
should be exempt from criminal liability because of his age when he
committed the crime. The defense, therefore, not the prosecution, has the
burden of showing by evidence that the petitioner was 15 years old or less
when he committed the rape charged.[30]
This conclusion can also be reached by considering that minority and
age are not elements of the crime of rape; the prosecution therefore has no
duty to prove these circumstances. To impose the burden of proof on the
prosecution would make minority and age integral elements of the crime
when clearly they are not. [31] If the prosecution has a burden related to age,
this burden relates to proof of the age of the victim as a circumstance that
qualifies the crime of rape.[32]

Testimonial Evidence is Competent Evidence

to Prove the Accuseds Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that

the petitioner was only 15 years old at the time he committed the crime.
Section 7 of R.A. No. 9344 expressly states how the age of a child in conflict
with the law may be determined:
SEC. 7. Determination of Age. - x x x The age of a child may
be determined from the child's birth certificate, baptismal
certificate or any other pertinent documents. In the
absence of these documents, age may be based on
information from the child himself/herself, testimonies of
other persons, the physical appearance of the child and
other relevant evidence. In case of doubt as to the age of
the child, it shall be resolved in his/her favor. [Emphasis
supplied]

Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides
the implementing details of this provision by enumerating the measures that
may be undertaken by a law enforcement officer to ascertain the childs age:
(1) Obtain documents that show proof of the childs age, such as

(a)

Childs birth certificate;

(b) Childs baptismal certificate ;or

(c)

Any other pertinent documents such as but not limited to

the childs school records, dental records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending

receipt of such documents, the law enforcement officer shall
exhaust other measures to determine age by:

(a)

Interviewing the child and obtaining information that

indicate age (e.g. date of birthday, grade level in school);

(b) Interviewing persons who may have knowledge that

indicate[s] age of the child (e.g. relatives, neighbors,
teachers, classmates);
(c)

Evaluating the physical appearance (e.g. height, built) of

the child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been
passed only in 2006), does not depart from the jurisprudence existing at that
time on the evidence that may be admitted as satisfactory proof of the
accuseds minority and age.
In the 1903 case of U.S. v. Bergantino,[33] we accepted testimonial
evidence to prove the minority and age of the accused in the absence of any
document or other satisfactory evidence showing the date of birth. This was
followed by U.S. v. Roxas[34] where the defendants statement about his age
was considered sufficient, even without corroborative evidence, to establish
that he was a minor of 16 years at the time he committed the offense

charged. Subsequently, in People v. Tismo,[35] the Court appreciated the

minority and age of the accused on the basis of his claim that he was 17
years old at the time of the commission of the offense in the absence of any
contradictory evidence or objection on the part of the prosecution. Then,
in People v. Villagracia,[36] we found the testimony of the accused that he was
less than 15 years old sufficient to establish his minority. We reiterated these
dicta in the cases of People v. Morial[37] and David v. Court of Appeals,[38] and
ruled that the allegations of minority and age by the accused will be
accepted as facts upon the prosecutions failure to disprove the claim by
contrary evidence.
In these cases, we gave evidentiary weight to testimonial evidence on
the accuseds minority and age upon the concurrence of the following
conditions: (1) the absence of any other satisfactory evidence such as the
birth certificate, baptismal certificate, or similar documents that would prove
the date of birth of the accused; (2) the presence of testimony from accused
and/or a relative on the age and minority of the accused at the time of the
complained incident without any objection on the part of the prosecution;
and (3) lack of any contrary evidence showing that the accuseds and/or his
relatives testimonies are untrue.
All these conditions are present in this case. First, the petitioner and
CCC both testified regarding his minority and age when the rape was
committed.[39] Second, the records before us show that these pieces of
testimonial evidence were never objected to by the prosecution. And lastly,
the prosecution did not present any contrary evidence to prove that the
petitioner was above 15 years old when the crime was committed.
We also stress that the last paragraph of Section 7 of R.A. No. 9344
provides that any doubt on the age of the child must be resolved in his favor.
[40]

Hence, any doubt in this case regarding the petitioners age at the time he

committed the rape should be resolved in his favor. In other words, the
testimony that the petitioner as 15 years old when the crime took place
should be read to mean that he was not more than 15 years old as this is the
more favorable reading that R.A. No. 9344 directs.

Given the express mandate of R.A. No. 9344, its implementing rules,
and

established

jurisprudence

in

accord

with

the

latest

statutory

developments, the CA therefore cannot but be in error in not appreciating

and giving evidentiary value to the petitioners and CCCs testimonies relating
to the formers age.
Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took
effect and that he is no longer a minor (he was already 20 years old when he
took the stand) will not bar him from enjoying the benefit of total exemption
that

Section

of

R.A.

No.

9344

grants. [41] As

discussing Sections 64 and 68 of R.A. No. 9344

we

[42]

explained

in

in the recent case

of Ortega v. People:[43]
Section 64 of the law categorically provides that cases of
children

15

years

old

and

below, at

the

time

of

the

commission of the crime, shall immediately be dismissed and

the child shall be referred to the appropriate local social welfare
and

development

officers

(LSWDO). What

is

controlling,

therefore, with respect to the exemption from criminal

liability of the CICL, is not the CICLs age at the time of the
promulgation of judgment but the CICLs age at the time
of the commission of the offense. In short, by virtue of R.A.
No. 9344, the age of criminal irresponsibility has been raised
from 9 to 15 years old. [Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22
of the RPC, as amended, which provides that penal laws are to be given
retroactive effect insofar as they favor the accused who is not found to be a
habitual criminal. Nothing in the records of this case indicates that
the petitioner is a habitual criminal.
Civil Liability
The last paragraph of Section 6 of R.A. No. 9344 provides that the
accused shall continue to be civilly liable despite his exemption from criminal

liability; hence, the petitioner is civilly liable to AAA despite his exemption
from criminal liability. The extent of his civil liability depends on the crime he
would have been liable for had he not been found to be exempt from criminal
liability.
The RTC and CA found, based on item (1) of Article 266-B of the RPC,
as amended, that the petitioner is guilty of qualified rape because of his
relationship with AAA within the second civil degree of consanguinity and the
latters

minority.[44] Both

courts

accordingly

imposed

the

civil

liability

corresponding to qualified rape.

The relationship between the petitioner and AAA, as siblings, does not
appear to be a disputed matter. Their mother, CCC, declared in her
testimony that AAA and the petitioner are her children. The prosecution and
the defense likewise stipulated in the proceedings below that the relationship
exists. We find, however, that AAAs minority, though alleged in the
Information, had not been sufficiently proven. [45] People v. Pruna[46] laid down
these guidelines in appreciating the age of the complainant:
In order to remove any confusion that may be engendered
by the foregoing cases, we hereby set the following guidelines in
appreciating age, either as an element of the crime or as a
qualifying circumstance.

1.

The best evidence to prove the age of the offended

party is an original or certified true copy of the certificate of
live birth of such party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records
which show the date of birth of the victim would suffice to
prove age.

3. If the certificate of live birth or authentic document is shown

to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victims mother or a
member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient
under the following circumstances:

a. If the victim is alleged to be below 3 years of age

and what is sought to be proved is that she is less
than 7 years old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less
than 12 years old;
c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less
than 18 years old.

4. In the absence of a certificate of live birth, authentic

document, or the testimony of the victims mother or relatives
concerning the victims age, the complainants testimony
will suffice provided that it is expressly and clearly
admitted by the accused.

5. It is the prosecution that has the burden of proving the

age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall
not be taken against him. [Emphasis supplied]

The records fail to show any evidence proving the age of AAA. They do
not likewise show that the petitioner ever expressly and clearly admitted
AAAs age at the time of the rape. Pursuant to Pruna, neither can his failure
to object to AAAs testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade

the crime to qualified rape i.e., relationship within the third degree of
consanguinity and minority of the victim does not exist. The crime for which
the petitioner should have been found criminally liable should therefore only
be simple rape pursuant to par. 1, Article 266-A of the RPC, not qualified
rape. The civil liability that can be imposed on the petitioner follows the
characterization of the crime and the attendant circumstances.

Accordingly, we uphold the grant of moral damages of P50,000.00 but

increase the awarded exemplary damages P30,000.00, both pursuant to
prevailing jurisprudence.[47] Moral damages are automatically awarded to
rape victims without the necessity of proof; the law assumes that the victim
suffered moral injuries entitling her to this award. [48] Article 2230 of the Civil
Code justifies the award of exemplary damages because of the presence of
the aggravating circumstances of relationship between AAA and petitioner
and dwelling.[49] As discussed above, the relationship (between the parties) is
not disputed. We appreciate dwelling as an aggravating circumstance based
on AAAs testimony that the rape was committed in their house. [50] While
dwelling as an aggravating circumstance was not alleged in the Information,
established jurisprudence holds that it may nevertheless be appreciated as
basis for the award of exemplary damages.[51]

We modify the awarded civil indemnity of P75,000.00 to P50,000.00,

the latter being the civil indemnity appropriate for simple rape [52] on the
finding that rape had been committed.[53]

In light of the above discussion and our conclusions, we see no need to

discuss the petitions third assignment of error.
WHEREFORE, premises considered, the instant petition is GRANTED.
The Decision dated February 29, 2008 and Resolution dated May 22, 2008 of
the Court of Appeals in CA-G.R.-CR.-H.C. No. 02218 are REVERSED and SET
ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H

for

rape

filed

against

petitioner

Robert

Sierra y Caneda

is

hereby DISMISSED. Petitioner isREFERRED to the appropriate local social

welfare and development officer who shall proceed in accordance with the
provisions of R.A. No. 9344. Petitioner is ORDERED topay the victim,
AAA, P50,000.00

as

civil

indemnity, P50,000.00

as

moral

damages,

and P30,000.00 as exemplary damages.

Unless there are other valid causes for petitioners continued detention,
we hereby ORDER his IMMEDIATE RELEASE under the above terms.
Let a copy of this Decision be furnished the Director of the Bureau of
Corrections in Muntinlupa City for its immediate implementation. The
Director of the Bureau of Corrections is directed to report to this Court within
five days from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice

and Welfare Council.

SO ORDERED.

JOEMAR ORTEGA,
Petitioner,

G.R. No. 151085

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
CHICO-NAZARIO, and
NACHURA, JJ.
Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondent.
August 20, 2008

x--------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before this Court is a Petition [1] for Review on Certiorari under Rule 45 of the
Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA)
Decision[2] dated October 26, 2000 which affirmed in toto the Decision[3] of
the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13,
1999, convicting petitioner Joemar Ortega[4] (petitioner) of the crime of Rape.
The Facts
Petitioner, then about 14 years old, [5] was charged with the crime of Rape in
two separate informations both dated April 20, 1998, for allegedly raping
AAA,[6] then about eight (8) years of age. The accusatory portions thereof
respectively state:
Criminal Case No. 98-19083
That sometime in August, 1996, in the Municipality of XXX,
Province of YYY, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force,
violence and intimidation, did then and there, (sic) willfully,
unlawfully and feloniously (sic) had carnal knowledge of and/or
sexual intercourse with the said AAA, a minor, then about 6
years old, against her will.
CONTRARY TO LAW.[7]
Criminal Case No. 98-19084
That on or about the 1st day of December, 1996, in the
Municipality of XXX, Province of YYY, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
by means of force, violence and intimidation, did then and there,
(sic) willfully, unlawfully and feloniously (sic) had carnal
knowledge of and/or sexual intercourse with the said AAA, a
minor, then about 6 years old, against her will.

CONTRARY TO LAW.[8]
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to
the offense charged.[9] Thus, trial on the merits ensued. In the course of the
trial, two varying versions arose.
Version of the Prosecution
On February 27, 1990, AAA was born to spouses FFF and MMM. [10] Among her
siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the family.
Before these disturbing events, AAA's family members were close friends of
petitioner's family, aside from the fact that they were good neighbors.
However, BBB caught petitioner raping his younger sister AAA inside their
own home. BBB then informed their mother MMM who in turn asked AAA.
[11]

There, AAA confessed that petitioner raped her three (3) times on three

(3) different occasions.

The first occasion happened sometime in August 1996. MMM left her
daughter AAA, then 6 years old and son BBB, then 10 years old, in the care
of Luzviminda Ortega[12](Luzviminda), mother of petitioner, for two (2) nights
because MMM had to stay in a hospital to attend to her other son who was
sick.[13] During the first night at petitioner's residence, petitioner entered the
room where AAA slept together with Luzviminda and her daughter. Petitioner
woke AAA up and led her to the sala. There petitioner raped AAA. The second
occasion occurred the following day, again at the petitioner's residence.
Observing that nobody was around, petitioner brought AAA to their comfort
room and raped her there. AAA testified that petitioner inserted his penis
into her vagina and she felt pain. In all of these instances, petitioner warned
AAA not to tell her parents, otherwise, he would spank her. [14] AAA did not tell
her parents about her ordeal.

The third and last occasion happened in the evening of December 1,

1996. Petitioner went to the house of AAA and joined her and her siblings in
watching a battery-powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching, petitioner
called AAA to come to the room of CCC and BBB. AAA obeyed. While inside
the said room which was lighted by a kerosene lamp, petitioner pulled AAA
behind the door, removed his pants and brief, removed AAA's shorts and
panty, and in a standing position inserted his penis into the vagina of AAA.
[15]

AAA described petitioner's penis as about five (5) inches long and the size

of two (2) ballpens. She, likewise, narrated that she saw pubic hair on the
base of his penis.[16]
This last incident was corroborated by BBB in his testimony. When BBB was
about to drink water in their kitchen, as he was passing by his room, BBB
was shocked to see petitioner and AAA both naked from their waist down in
the act of sexual intercourse. BBB saw petitioner holding AAA and making a
pumping motion. Immediately, BBB told petitioner to stop; the latter, in turn,
hurriedly left. Thereafter, BBB reported the incident to his mother, MMM.[17]
MMM testified that when she asked AAA about what BBB saw, AAA told her
that petitioner inserted his fingers and his penis into her vagina. MMM
learned that this was not the only incident that petitioner molested AAA as
there were two previous occasions. MMM also learned that AAA did not report
her ordeal to them out of fear that petitioner would spank her. MMM testified
that when BBB reported the matter to her, petitioner and Luzviminda already
left her house. After waiting for AAA's brothers to go to sleep, MMM, with a
heavy heart, examined AAA's vagina and she noticed that the same was
reddish and a whitish fluid was coming out from it. Spouses FFF
and MMM were not able to sleep that night. The following morning, at
about four o'clock, MMM called Luzviminda and petitioner to come to their
house. MMM confronted Luzviminda about what petitioner did to her
daughter, and consequently, she demanded that AAA should be brought to a
doctor for examination.[18]
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas [19] (Dr.
Katalbas), the Rural Health Officer of the locality who examined AAA and

found no indication that she was molested. [20] Refusing to accept such
findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr.
Jocson), Medical Officer IV of the Bacolod City Health Office. Dr. Jocson made
an unofficial written report[21] showing that there were abrasions on both
right and left of the labia minora and a small laceration at the posterior
fourchette. She also found that the minor injuries she saw on AAA's genitals
were relatively fresh; and that such abrasions were superficial and could
disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her
certification that her findings required the confirmation of the Municipal
Health Officer of the locality.
Subsequently, an amicable settlement[22] was reached between the two
families through the DAWN Foundation, an organization that helps abused
women and children. Part of the settlement required petitioner to depart
from their house to avoid contact with AAA. [23] As such, petitioner stayed with
a certain priest in the locality. However, a few months later, petitioner went
home for brief visits and in order to bring his dirty clothes for laundry. At the
sight of petitioner, AAA's father FFF was infuriated and confrontations
occurred. At this instance, AAA's parents went to the National Bureau of
Investigation (NBI) which assisted them in filing the three (3) counts of rape.
However, the prosecutor's office only filed the two (2) instant cases.
Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and

Luzviminda Ortega.[24] He is the second
child
of
three
siblings an
elderbrother and a younger sister. Petitioner denied the accusations made
against him. He testified that: his parents and AAA's parents were good
friends; when MMM left AAA and her brothers to the care of his mother,
petitioner slept in a separate room together with BBB and CCC while AAA
slept together with Luzviminda and his younger sister; he never touched or
raped AAA or showed his private parts to her; petitioner did not threaten
AAA in any instance; he did not rape AAA in the former's comfort room, but
he merely accompanied and helped AAA clean up as she defecated and
feared the toilet bowl; in the process of washing, he may have accidentally
touched AAA's anus; on December 1, 1996, petitioner together with his
parents, went to AAA's house;[25] they were dancing and playing together
with all the other children at the time; while they were dancing, petitioner
hugged and lifted AAA up in a playful act, at the instance of which BBB ran
and reported the matter to MMM, who at the time was with Luzviminda,
saying that petitioner and AAA were having sexual intercourse; [26] petitioner
explained to MMM that they were only playing, and that he could not have
done to AAA what he was accused of doing, as they were together with her
brothers, and he treated AAA like a younger sister; [27] BBB was lying; AAA's
parents and his parents did not get angry at him nor did they quarrel with
each other; petitioner and his parents peacefully left AAA's house at about
nine o'clock in the evening; however, at about four o'clock in the morning,
petitioner and his parents were summoned by MMM to go to the latter's
house; upon arriving there they saw BBB being maltreated by his father as
AAA pointed to BBB as the one who molested her; and MMM and Luzviminda
agreed to bring AAA to a doctor for examination.[28]
Luzviminda corroborated the testimony of her son. She testified that: her son
was a minor at the time of the incident; CCC and BBB were the
children of MMM in her firstmarriage, while AAA and the rest of her

siblings were of the second marriage; CCC and BBB are half-brothers of AAA;
when MMM entrusted AAA and her brothers to her sometime in August of
1996, she slept with AAA and her youngest daughter in a separate room
from petitioner; on December 1, 1996, she was at AAA's house watching
television and conversing with MMM, while FFF and Loreto were having a
drinking spree in the kitchen; from where they were seated, she could clearly
see all the children, including petitioner and AAA, playing and dancing in the
dining area; she did not hear any unusual cry or noise at the time; while they
were conversing, BBB came to MMM saying that petitioner and AAA were
having sexual intercourse; upon hearing such statement, Luzviminda and
MMM immediately stood up and looked for them, but both mothers did not
find anything unusual as all the children were playing and dancing in the
dining area; Luzviminda and MMM just laughed at BBB's statement; the
parents of AAA, at that time, did not examine her in order to verify BBB's
statement nor did they get angry at petitioner or at them; and they
peacefully left AAA's house. However, the following day, MMM woke
Luzviminda up, saying that FFF was spanking BBB with a belt as AAA was
pointing to BBB nor to petitioner as the one who molested her. At this
instance, Luzviminda intervened, telling FFF not to spank BBB but instead, to
bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr.
Katalbas who found no indication that AAA was molested. She also
accompanied her to Dr. Jocson. After getting the results of the examination
conducted by Dr. Jocson, they went to the police and at this instance only did
Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner
vehemently denied to Luzviminda that he raped AAA. Thereafter, MMM and
Luzviminda went to their employer who recommended that they should seek
advice from the Women's Center. At the said Center, both agreed on an
amicable settlement wherein petitioner would stay away from AAA. Thus,
petitioner stayed with a certain priest in the locality for almost two (2) years.
But almost every Saturday, petitioner would come home to
visit his parents and to bring hisdirty clothes for laundry. Every
time
petitioner came home, FFF bad-mouthed petitioner, calling him a rapist.
Confrontations occurred until an altercation erupted wherein FFF allegedly
slapped Luzviminda. Subsequently, AAA's parents filed the instant cases.[29]
The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of denial cannot
prevail over the positive identification of petitioner as the perpetrator of the
crime by AAA and BBB, who testified with honesty and credibility. Moreover,

the RTC opined that it could not perceive any motive for AAA's family to
impute a serious crime of Rape to petitioner, considering the close relations
of both families. Thus, the RTC disposed of this case in this wise:
FOR ALL THE FOREGOING, the Court finds the accused Joemar
Ortega Y Felisario GUILTY beyond reasonable doubt as Principal
by Direct Participation of the crime of RAPE as charged in
Criminal Cases Nos. 98-19083 and 98-19084 and there being no
aggravating or mitigating circumstance, he is sentenced to
suffer the penalty of Two (2) Reclusion Temporal in its medium
period. Applying the Indeterminate Sentence Law, the accused
shall be imprisoned for each case for a period of Six (6) years
and One (1) day of Prision Mayor, as minimum, to Fifteen (15)
years of Reclusion Temporal, as maximum. The accused is
condemned to pay the offended party AAA, the sum
of P100,000.00 as indemnification for the two (2) rapes (sic).
Aggrieved, petitioner appealed the RTC Decision to the CA.[30]
Taking into consideration the age of petitioner and upon posting of the
corresponding

bail

bond

for

his

provisional

liberty

in

the

amount

of P40,000.00, the RTC ordered the petitioner's release pending appeal.[31]

The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding
that the petitioner's defense of denial could not prevail over the positive
identification of the petitioner by the victim AAA and her brother BBB, which
were categorical, consistent and without any showing of ill motive. The CA
also held that the respective medical examinations conducted by the two
doctors were irrelevant, as it is established that the slightest penetration of
the lips of the female organ consummates rape; thus, hymenal laceration is
not an element of rape. Moreover, the CA opined that petitioner acted with
discernment as shown by his covert acts. Finally, the CA accorded great
weight and respect to the factual findings of the RTC, particularly in the
evaluation of the testimonies of witnesses.
Petitioner filed his Motion for Reconsideration[32] of the assailed Decision
which the CA denied in its Resolution[33] dated November 7, 2001.
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED
CERTAIN FACTS OF SUBSTANCE AND VALUE WHICH IF
CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE.
II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR
WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR.
LUCIFREE KATALBAS.
III.

THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE

APPELLATE
COURT,
THAT
PETITIONER-APPELLANT
IN
FACT COMMITTED AND IS CAPABLE OF COMMITTING THE
ALLEGEDRAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE
SEVERAL OF THE ALLEGED VICTIM'S FAMILY MEMBERS AND
THEIR RESPECTIVE MOTHERS WERE PRESENT IS IMPROBABLE
AND CONTRARY TO HUMAN EXPERIENCE.
IV.
THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE
FACTS SET FORTH BY THE ALLEGED VICTIM REGARDING THE
CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE
SOMETIME IN AUGUST 1996.[34]

Petitioner argues that, while it is true that the factual findings of the CA are
conclusive on this Court, we are not prevented from overturning such
findings if the CA had manifestly overlooked certain facts of substance and
value which if considered might affect the result of the case. Petitioner
stresses that from the testimonies of AAA and BBB, it can be deduced that
penetration was achieved; thus, AAA felt pain. Petitioner contends that
assuming the allegations of AAA are true that petitioner inserted his fingers
and his penis into her vagina, certainly such acts would leave certain
abrasions, wounds and/or lacerations on the genitalia of AAA, taking into
consideration her age at the time and the alleged size of petitioner's penis.
However, such allegation is completely belied by the medical report of Dr.
Katalbas who, one day after the alleged rape, conducted a medical
examination on AAA and found that there were no signs or indications that
AAA was raped or molested. Petitioner submits that the CA committed a
grave error when it disregarded such medical report since it disproves the
allegation of the existence of rape and, consequently, the prosecution failed
to prove its case; thus, the presumption of innocence in favor of the
petitioner subsists. Moreover, petitioner opines that like AAA, petitioner is
also a child of the barrio who is innocent, unsophisticated and lacks sexual
experience. As such, it is incredible and contrary to human reason that a 13year-old boy would commit such act in the very dwelling of AAA, whose
reaction to pain, at the age of six, could not be controlled or subdued.
Petitioner claims that poverty was MMM's motive in filing the instant case,as
she wanted to extort money from the parents of the petitioner. Petitioner
points out that the medical report of Dr. Jocson indicated that the abrasions
that were inflicted on the genitalia of AAA were relatively fresh and the same
could disappear within a period of 3 to 4 days. Considering that Dr. Jocson
conducted the medical examination on December 12, 1996, or after the
lapse of eleven (11) days after the alleged incident of rape, and that AAA's
parents only filed the instant case after almost a year, in order to deter
Luzviminda from filing a case of slander by deed against FFF, it is not
inconceivable that MMM inflicted said abrasions on AAA to prove their case
and to depart from the initial confession of AAA that it was actually BBB who
raped her. Finally, petitioner submits that AAA and BBB were merely coached
by MMM to fabricate these stories.[35]

On the other hand, respondent People of the Philippines through the Office of
the Solicitor General (OSG) contends that: the arguments raised by the
petitioner are mere reiterations of his disquisitions before the CA; the RTC, as
affirmed by the CA, did not rely on the testimonies of both doctors since
despite the absence of abrasions, rape is consummated even with the
slightest penetration of the lips of the female organ; what is relevant in this
case is the reliable testimony of AAA that petitioner raped her in August and
December of 1996; even in the absence of force, rape was committed
considering AAA's age at that time; as such, AAA did not have any ill motive
in accusing petitioner; and it is established that the crime of rape could be
committed even in the presence of other people nearby. Moreover, the OSG
relies on the doctrine that the evaluation made by a trial court is accorded
the highest respect as it had the opportunity to observe directly the
demeanor of a witness and to determine whether said witness was telling
the truth or not. Lastly, the OSG claims that petitioner acted with
discernment when he committed the said crime, as manifested in his covert
acts.[36]
However, Republic Act (R.A.) No. 9344, [37] or the Juvenile Justice and Welfare
Act of 2006, was enacted into law on April 28, 2006 and it took effect on May
20, 2006.[38] The law establishes a comprehensive system to manage
children in conflict with the law [39] (CICL) and children at risk [40] with childappropriate procedures and comprehensive programs and services such as
prevention, intervention, diversion, rehabilitation, re-integration and aftercare programs geared towards their development. In order to ensure its
implementation, the law, particularly Section 8[41] thereof, has created the
Juvenile Justice and Welfare Council (JJWC) and vested it with certain duties
and functions[42] such as the formulation of policies and strategies to prevent
juvenile delinquency and to enhance the administration of juvenile justice as
well as the treatment and rehabilitation of theCICL. The law also

provides for the immediate dismissal of cases of CICL, specifically Sections

64, 65, 66, 67 and 68 of R.A. No. 9344's Transitory Provisions.[43]
The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SECTION 64. Children in Conflict with the Law Fifteen (15) Years
Old and Below. Upon effectivity of this Act, cases of children
fifteen (15) years old and below at the time of the commission
of the crime shall immediately be dismissed and the child shall
be referred to the appropriate local social welfare and
development officer. Such officer, upon thorough assessment of
the child, shall determine whether to release the child to the
custody of his/her parents, or refer the child to prevention
programs, as provided under this Act. Those with suspended
sentences and undergoing rehabilitation at the youth
rehabilitation center shall likewise be released, unless it is
contrary to the best interest of the child.
SECTION 65. Children Detained Pending Trial. If the child is
detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not,
determine appropriate alternatives for detention. If detention is
necessary and he/she is detained with adults, the court shall
immediately order the transfer of the child to a youth detention
home.
SECTION 66. Inventory of "Locked-up" and Detained Children in
Conflict with the Law. The PNP, the BJMP and the BUCOR are
hereby directed to submit to the JJWC, within ninety (90) days
from the effectivity of this Act, an inventory of all children in
conflict with the law under their custody.
SECTION 67. Children Who Reach the Age of Eighteen (18) Years
Pending Diversion and Court Proceedings. If a child reaches the
age of eighteen (18) years pending diversion and court
proceedings, the appropriate diversion authority in consultation
with the local social welfare and development officer or the
Family Court in consultation with the Social Services and
Counseling Division (SSCD) of the Supreme Court, as the case
may be, shall determine the appropriate disposition. In case the
appropriate court executes the judgment of conviction, and
unless the child in conflict with the law has already availed of

probation under Presidential Decree No. 603 or other similar

laws, the child may apply for probation if qualified under the
provisions of the Probation Law.
SECTION 68. Children Who Have Been Convicted and are
Serving Sentences. Persons who have been convicted and are
serving sentence at the time of the effectivity of this Act, and
who were below the age of eighteen (18) years at the time of
the commission of the offense for which they were convicted
and are serving sentence, shall likewise benefit from the
retroactive application of this Act. They shall be entitled to
appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be
immediately released if they are so qualified under this Act or
other applicable laws.
Ostensibly, the only issue that requires resolution in this case is whether or
not petitioner is guilty beyond reasonable doubt of the crime of rape as
found by both the RTC and the CA. However, with the advent of R.A. No.
9344 while petitioner's case is pending before this Court, a new issue arises,
namely, whether the pertinent provisions of R.A. No. 9344 apply to
petitioner's case, considering that at the time he committed the alleged
rape, he was merely 13 years old.

In sum, we are convinced that petitioner committed the crime of rape

against AAA. In a prosecution for rape, the complainant's candor is the single
most important factor. If the complainant's testimony meets the test of
credibility, the accused can be convicted solely on that basis. [44] The RTC, as
affirmed by the CA, did not doubt AAA's credibility, and found no ill motive
for her to charge petitioner of the heinous crime of rape and to positively
identify him as the malefactor. Both courts also accorded respect to BBB's
testimony that he saw petitioner having sexual intercourse with his younger
sister. While petitioner asserts that AAA's poverty is enough motive for the
imputation of the crime, we discard such assertion for no mother or father
like MMM and FFF would stoop so low as to subject their daughter to the
tribulations and the embarrassment of a public trial knowing that such a
traumatic experience would damage their daughter's psyche and mar her
life if the charge is not true. [45] We find petitioner's claim that MMM inflicted
the abrasions found by Dr. Jocson in the genitalia of AAA, in order to extort
money from petitioners parents, highly incredible. Lastly, it must be noted
that in most cases of rape committed against young girls like AAA
who wasonly 6 years old then, total penetration of the victim's organ is
improbable due to the small vaginal opening. Thus, it has been held that
actual penetration of the victim's organ or rupture of the hymen is not
required.[46] Therefore, it is not necessary for conviction that the petitioner
succeeded in having full penetration, because the slightest touching of the
lips of the female organ or of the labia of the pudendum constitutes rape.[47]
However, for one who acts by virtue of any of the exempting circumstances,
although he commits a crime, by the complete absence of any of the
conditions which constitute free will or voluntariness of the act, no criminal
liability arises.[48] Therefore, while there is a crime committed, no criminal
liability attaches. Thus, in Guevarra v. Almodovar,[49] we held:
[I]t is worthy to note the basic reason behind the enactment of
the exempting circumstances embodied in Article 12 of the
RPC; the complete absence of intelligence, freedom of
action, or intent, or on the absence of negligence on the
part of the accused. In expounding on intelligence as the
second element of dolus, Albert has stated:

"The second element of dolus is intelligence; without

this power, necessary to determine the morality of
human acts to distinguish a licit from an illicit act, no
crime can exist, and because . . . the infant (has) no
intelligence, the law exempts (him) from criminal
liability."
It is for this reason, therefore, why minors nine years of age and
below are not capable of performing a criminal act.

In its Comment[50] dated April 24, 2008, the OSG posited that petitioner is no
longer covered by the provisions of Section 64 of R.A. No. 9344 since as early
as 1999, petitioner was convicted by the RTC and the conviction was
affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and
with the petitioner now approximately 25 years old, he no longer qualifies as
a

child

as

defined

by

R.A.

No.

9344.

Moreover,

the

OSG

claimed that the retroactive effect of Section 64 of R.A. No. 9344 isapplicable
only if the child-accused is still below 18 years old as explained under
Sections 67 and 68 thereof. The OSG also asserted that petitioner may avail
himself of the provisions of Section 38 [51] of R.A. No. 9344 providing for
automatic suspension of sentence if finally found guilty. Lastly, the OSG
argued that while it is a recognized principle that laws favorable to the
accused may be given retroactive application, such principle does not apply
if the law itself provides for conditions for its application.
We are not persuaded.
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SECTION 6. Minimum Age of Criminal Responsibility. A child
fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However,
the child shall be subjected to an intervention program pursuant
to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of
age shall likewise be exempt from criminal liability and be
subjected to an intervention program, unless he/she has acted
with discernment, in which case, such child shall be subjected to
the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.

Likewise, Section 64 of the law categorically provides that cases of children

15 years old and below, at the time of the commission of the crime, shall
immediately be dismissed and the child shall be referred to the appropriate
local social welfare and development officer (LSWDO). What iscontrolling,
therefore, with respect to the exemption from criminal liability of the CICL, is
not the CICL's age at the time of the promulgation of judgment but the CICL's
age at the time of the commission of the offense. In short, by virtue of R.A.
No. 9344, the age of criminal irresponsibility has been raised from 9 to 15
years old.[52]
Given this precise statutory declaration, it is imperative that this Court
accord retroactive application to the aforequoted provisions of R.A. No. 9344
pursuant to the well-entrenched principle in criminal law - favorabilia sunt
amplianda adiosa restrigenda. Penal laws which are favorable to the accused
are given retroactive effect.[53] This principle is embodied in Article 22 of the
Revised Penal Code, which provides:
Art. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws, a final sentence has been pronounced
and the convict is serving the same.

We also have extant jurisprudence that the principle has been given
expanded application in certain instances involving special laws. [54] R.A. No.
9344 should be no exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent
from the deliberations on the bill in the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on Transitory Provisions,
pages 34 to 35, may I humbly propose that we should insert,
after Sections 67 to 69, the following provision:

ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER

THIS LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE
WELFARE AND RESTORATION (OJWR) AND THE LOCAL COUNCIL
FOR THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR,
SHALL BE IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS,
AND DSWD SHALL UNDERTAKE DIVERSION PROGRAMS FOR
THEM, PRIORITIZING THE YOUNGER CHILDREN BELOW 15 YEARS
OF AGE AND THE LIGHTER OFFENSES.
The only question will be: Will the DSWD have enough facilities
for these adult offenders?
Senator Pangilinan, Mr. President, according to the CWC, the
DSWD does not have the capability at the moment. It will take
time to develop the capacity.
Senator Santiago. Well, we can say that they shall be transferred
whenever the facilities are ready.
Senator Pangilinan. Yes. Mr. President, just a clarification. When
we speak here of children who do not have criminal liability
under this law, we are referring here to those who currently have
criminal liability, but because of the retroactive effect of
this measure, will now be exempt. It is quite confusing.
Senator Santiago. That is correct.
Senator Pangilinan. In other words, they should be released
either to their parents or through a diversion program, Mr.
President. That is my understanding.
Senator Santiago. Yes, that is correct. But there will have to be a
process of sifting before that. That is why I was proposing that
they should be given to the DSWD, which will conduct the sifting
process, except that apparently, the DSWD does not have the
physical facilities.
Senator Pangilinan. Mr. President, conceptually, we have no
argument. We will now have to just craft it to ensure that the
input raised earlier by the good Senator is included and the
capacity of the DSWD to be able to absorb these
individuals. Likewise, the issue should also be incorporated in
the amendment.
The President. Just a question from the Chair. The moment this
law becomes effective, all those children in conflict with

the law, who were convicted in the present Penal Code,

for example, who will now not be subject to incarceration
under this law, will be immediately released. Is that the
understanding?
Senator Pangilinan. Yes, Mr. President.
Senator Santiago. They would immediately fall under . . . .
Senator Pangilinan. The diversion requirements, Mr. President.
Senator Santiago. Yes.
The President. But since the facilities are not yet available, what
will happen to them?
Senator Santiago. Well, depending on their age, which has not
yet been settled . . . . . provides, for example, for conferencing
family
mediation,
negotiation,
apologies,
censure,
et
cetera. These methodologies will apply. They do not necessarily
have to remain in detention.
Senator Pangilinan. Yes, that is correct, Mr. President. But it will
still
require
some
sort
of
infrastructure,
meaning,
manpower. The personnel from the DSWD will have to address
the counseling. So, there must be a transition in terms of
building the capacity and absorbing those who will benefit from
this measure.
The President. Therefore, that should be specifically provided for
as an amendment.
Senator Pangilinan. That is correct, Mr. President.
The President. All right. Is there any objection? [Silence] There
being none, the Santiago amendment is accepted.[55]
xxxx
PIMENTEL AMENDMENTS
xxxx
Senator Pimentel.

xxxx
Now, considering that laws are normally prospective, Mr.
President, in their application, I would like to suggest to the
Sponsor if he could incorporate some kind of a transitory
provision that would make this law apply also to those
who might already have been convicted but are awaiting,
let us say, execution of their penalties as adults when, in
fact, they are juveniles.
Senator Pangilinan. Yes, Mr. President. We do have a provision
under the Transitory Provisions wherein we address the
issue raised by the good Senator, specifically, Section
67. For example, Upon effectivity of this Act, cases of
children fifteen (15) years old and below at the time of
the commission of the crime shall immediately be
dismissed and the child shall be referred to the
appropriate local social welfare and development
officer. So that would be giving retroactive effect.
Senator Pimentel. Of cases that are still to be prosecuted.
Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been

prosecuted? I was trying to cite the instance of juvenile offenders
erroneously convicted as adults awaiting execution.
Senator Pangilinan. Mr. President, we are willing to include that
as an additional amendment, subject to style.
Senator Pimentel. I would certainly appreciate that because that
is a reality that we have to address, otherwise injustice will really
be . . .
Senator Pangilinan. Yes, Mr. President, we would also include that
as a separate provision.
The President. In other words, even after final conviction if, in
fact, the offender is able to prove that at the time of the
commission of the offense he is a minor under this law, he should
be given the benefit of the law.
Senator Pimentel. Yes, Mr. President. That is correct.
Senator Pangilinan. Yes, Mr. President. We accept that proposed
amendment.[56]
The Court is bound to enforce this legislative intent, which is the dominant
factor in interpreting a statute. Significantly, this Court has declared in a
number of cases, that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have
effect according to the purpose and intent of the lawmaker. The
intent is the vital part, the essence of the law, and the primary
rule of construction is to ascertain and give effect to the intent.
The intention of the legislature in enacting a law is the law itself,
and must be enforced when ascertained, although it may not be
consistent with the strict letter of the statute. Courts will not
follow the letter of a statute when it leads away from the true
intent and purpose of the legislature and to conclusions
inconsistent with the general purpose of the act. Intent is the
spirit which gives life to
a legislative enactment. In construing statutes the proper course
is to start out and follow the true intent of the legislature and to
adopt that sense which harmonizes best with the context and
promotes in the fullest manner the apparent policy and objects
of the legislature.[57]

Moreover, penal laws are construed liberally in favor of the accused.

[58]

In this case, the plain meaning of R.A. No. 9344's unambiguous language,

coupled with clear lawmakers' intent, is most favorable to herein petitioner.

No other interpretation is justified, for the simple language of the new law
itself demonstrates the legislative intent to favor the CICL.
It bears stressing that the petitioner was only 13 years old at the time of the
commission of the alleged rape. This was duly proven by the certificate of
live birth, by petitioner's own testimony, and by the testimony of his
mother. Furthermore, petitioners age was never assailed in any of the
proceedings before the RTC and the CA. Indubitably, petitioner, at the time of
the commission of the crime, was below 15 years of age. Under R.A. No.
9344, he is exempted from criminal liability.
However, while the law exempts petitioner from criminal liability for the two
(2) counts of rape committed against AAA, Section 6 thereof expressly
provides

that

there

is

no

concomitant

exemption

from

civil

liability. Accordingly, this Court sustains the ruling of the RTC, duly affirmed
by

the

CA,

that

petitioner

and/or

his

parents

are

liable

to

pay

AAA P100,000.00 as civil indemnity. This award is in the nature of actual or

compensatory damages, and is mandatory upon a conviction for rape.
The RTC, however, erred in not separately awarding moral damages, distinct
from the civil indemnity awarded to the rape victim. AAA is entitled to moral
damages in the amount of P50,000.00 for each count of rape, pursuant to
Article 2219 of the Civil Code, without the necessity of additional pleading or
proof other than the fact of rape. Moral damages are granted in recognition
of the victim's injury necessarily resulting from the odious crime of rape.[59]
A final note. While we regret the delay, we take consolation in the fact that a
law intended to protect our children from the harshness of life and to
alleviate, if not cure, the ills of the growing number of CICL and children at
risk in our country, has been enacted by Congress. However, it has not
escaped us that major concerns have been raised on the effects of the law. It
is worth mentioning that in the Rationale for the Proposed Rule on Children

Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of
2002, it was found that:
The passage of Republic Act No. 9344 or the Juvenile Justice and
Welfare Act of 2006 raising the age of criminal irresponsibility
from 9 years old to 15 years old has compounded the problem of
employment of children in the drug trade several times over. Law
enforcement authorities, Barangay Kagawads and the police,
most particularly, complain that drug syndicates have become
more aggressive in using children 15 years old or below as
couriers or foot soldiers in the drug trade. They claim that
Republic Act No. 9344 has rendered them ineffective in the
faithful discharge of their duties in that they are proscribed from
taking into custody children 15 years old or below who openly
flaunt possession, use and delivery or distribution of illicit drugs,
simply because their age exempts them from criminal liability
under the new law. [60]

The Court is fully cognizant that our decision in the instant case effectively
exonerates petitioner of rape, a heinous crime committed against AAA who
was only a child at the tender age of six (6) when she was raped by the
petitioner, and one who deserves the laws greater protection. However, this
consequence is inevitable because of the language of R.A. No. 9344, the
wisdom of which is not subject to review by this Court. [61] Any perception that
the result reached herein appears unjust or unwise should be addressed to
Congress. Indeed, the Court has no discretion to give statutes a meaning
detached from the manifest intendment and language of the law. Our task is
constitutionally confined only to applying the law and jurisprudence to the
proven facts, and we have done so in this case.[62]

WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 9819084 filed against petitioner Joemar F. Ortega are hereby DISMISSED.
Petitioner is hereby referred to the local social welfare and development
officer of the locality for the appropriate intervention program. Nevertheless,
the petitioner is hereby ordered to pay private complainant AAA, civil
indemnity in the amount of One Hundred Thousand Pesos (P100,000.00) and

moral

damages

in

the

amount

of

One

Hundred

Thousand

Pesos

(P100,000.00). No costs.
Let a copy of this Decision be furnished the two Houses of Congress and the
Juvenile Justice and Welfare Council (JJWC).
SO ORDERED.
ROBERT REMIENDO y SIBLAWAN,

G.R. No. 184874

Petitioner,
Present:

CARPIO, J.,
Chairperson,
CARPIO MORALES,*

- versus -

VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent.

October 9, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a petition[1] for review on certiorari under Rule 45 of the Rules of

Court assailing the Decision[2] dated November 16, 2007 and the
Resolution[3] dated October 3, 2008 of the Court of Appeals (CA) in CA-G.R.
CR No. 29316 entitled, People of the Philippines v. Robert Remiendo y
Siblawan.

The case arose from the filing of two criminal informations, both dated March
10, 2008, against petitioner Robert Remiendo y Siblawan (Remiendo), that
read

Criminal Case No. 98-CR-2999

That in or about the month of March 1997, at Badiwan,

Municipality of Tuba, Benguet Province, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously
have carnal knowledge of one [AAA], a girl below 12 years of
age.

CONTRARY TO LAW.[4]

Criminal Case No. 98-CR-3000

That in or about the month of May 1997, at Badiwan, Municipality

of Tuba, Benguet Province, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have carnal knowledge
of one [AAA], a girl below 12 years of age.

CONTRARY TO LAW.[5]

Upon arraignment, Remiendo pled not guilty to both charges. After

pretrial, a joint trial ensued before the Regional Trial Court (RTC), Branch 62,
La Trinidad, Benguet.Both the prosecution and the defense presented their
respective evidence, summarized by the CA in its Decision, to wit:

The prosecution presented the following version of facts:

The complainant [AAA] was born on 16 February 1986. At

the time of the commission of the offense, she was a minor
below 12 years of age. She knew accused-appellant Robert
Remiendo as he was residing near the house where her family
used to stay. Sometime in March 1997, she was sexually
assaulted by accused-appellant inside said house. On that day,
her parents and brother left for work after breakfast, and she was
left alone in the house. Accused-appellant came in, pushed her
into the room, and threatened to kill her if she reported what
happened. He undressed himself and the complainant. The latter
was standing and refused to remove her panty but she obliged
when accused-appellant insisted. Then he made her lie on the
bed and placed his penis in her vagina. The complainant
struggled, moved, and pushed accused-appellant. She felt pain
when accused-appellant inserted his penis into her vagina. She
cried until accused-appellant left, but she did not shout because
accused-appellant warned her not to, or else he would kick

her. She put on her clothes after accused-appellant left. Her

parents arrived in the afternoon but she did not tell them what
happened to her because her mother might whip her.

Sometime in May 1997, [AAA] was again sexually

assaulted by accused-appellant, which took place in the house of
the latter. At that time, she was on her way to see her mother at
her workplace after she had lunch. When she passed by the
house of accused-appellant, the latter pulled her into his house
and brought her into his room. She cried and shouted but
accused-appellant told her to keep quiet. She struggled but was
helpless because accused-appellant was stronger. They were
alone in the room. Accused-appellant removed his clothes and
told her to remove her panty. Afraid, she removed her panty and
was made to lie on the bed. Accused-appellant inserted his penis
into her vagina and she felt pain. She kept on moving but she
could not push away accused-appellant. She moved her
shoulders and pushed accused-appellant with both hands but he
was stronger. Afterwards, accused-appellant moved away and
threatened to kill her if she told anyone what happened. She
responded that she would not tell anyone. Later, she executed a
sworn statement and identified accused-appellant as the person
who raped her.

Dr. Ronald R. Bandonill, Medico-Legal Officer of the

National Bureau of Investigation (NBI)-Cordillera Administrative
Region, physically examined the complainant on 2 January
1998. Said medico-legal officer testified that [AAA] was thirteen
(13) years old and a Grade III pupil at Badiwan Tuba, Benguet at
the time of the examination. She was four feet and eleven inches
(411) tall, weighed 78 pounds, fairly nourished, and fairly
developed. She was conscious, coherent, and cooperative. She
was ambulatory and had no extra-genital injuries. Upon
examination of her genital area, he found old lacerations of the
hymen at 5:00 and 7:00 oclock positions, which meant that her
hymen was altered by a hard rigid instrument. The lacerations
were done more than three (3) months prior to the

examination. To determine the approximate size of the object

that the hymenal opening could accommodate, he inserted a test
tube. The 2.5-centimeter diameter of said tube was admitted
with ease by the hymenal orifice. He noted that the vaginal walls
were lax and the ridges inside were smothered. The complainant
told him that accused-appellant raped her. He presented a
written report of his findings.

On 12 July 1998, psychiatrist Dr. Elsie I. Caducoy conducted

an examination of the mental condition of the complainant. The
latter was also scheduled for psychological examination to be
conducted by Elma Buadken. The result of the examination
showed that [AAA] is suffering from psychosis and organicity. She
has a below average intelligence quotient of 88, but not on the
level of mental retardation. She can perform simple tasks but
needs guidance. As to her studies, she can hardly comprehend
what is being taught to her. Having psychosis means that her
brain is afflicted with a disease. Her medical history showed that
she suffered head and body injuries brought about by being
sideswiped by a motor vehicle sometime in 1996. She was
confined in the hospital for twelve (12) days. Said injuries
substantially contributed to her present condition. Organicity, on
the other hand, means that the complainant suffers from a cloud
of memory, upward rolling of the eyeballs, stiffening of the
extremities, loss of consciousness, and epileptic seizures. Her
psychosis
occurs
after
seizure. She
is
not,
however,
insane. During a seizure, she does not know what is going on,
but afterwards she returns to her level of consciousness. With
regular
medication,
her
seizures
will
be
greatly
minimized. During her interview, the complainant had a seizure
and the psychiatrist had to wait until her consciousness level
returned. The complainant then revealed that accused-appellant
and a certain Reynoso Cera raped her. The psychiatrist opined
that during the rape, she did not have a seizure because if she
had, she would not have remembered what had happened. The
fact that she was able to narrate what happened and who raped
her suggested that she was on her conscious level at such
time. A written report of the foregoing findings was submitted in
court.

The defense presented the following version of facts:

Lea F. Chiwayan, thirteen (13) years old, testified that she

was a friend, playmate, and neighbor of the complainant. She
testified that she and [AAA] played together and talked about
their crushes. The complainant told Lea Chiwayan that she had a
crush on accused-appellant. Sometime in April or May 1997, the
complainant said that her brother had molested her, and that he
and his father had sexual intercourse with her in their house in
Poyopoy, Tuba. Sometime in August 1997, the complainant
confided that Reynoso Cera raped her in his house. She told Lea
Chiwayan that she did not feel anything because she was used to
having sexual intercourse with brother and father. One Saturday
afternoon, Lea Chiwayan and the complainant were playing when
they saw accused-appellant going to the basketball court near
the church. They followed him and watched a basketball
game. After the game, Lea Chiwayan went home with the others
while the complainant stayed behind. A few seconds after they
left, the complainant ran after them and told them that
something happened between her and accused-appellant. She
said that accused-appellant pulled her towards the back of the
church and had sexual intercourse with her. The complainant
later took back what she said because she was only joking. She
then asked Lea Chiwayan not to tell the accusedappellant. However, Lea Chiwayan told accused-appellant what
the complainant told them. Accused-appellant confronted the
complainant. He flicked a finger on her head, kicked and spanked
her. He said, what are you saying, why did I do that, if I like and I
do it, Ill not do it with you, you should be ashamed of yourself. He
then borrowed the vehicle of a certain Junie, started the engine,
and stepped on the gas such that the fumes from the exhaust
pipe were directed at the complainant. Later, Lea Chiwayan
learned that [AAA] filed a case against accused-appellant.

Dolores L. Daniel, Grade II teacher of [AAA] for the school

year 1997-1998, testified that the latter was unruly and a

liar. The complainant would pick fights and steal money from her
classmates. However, the witness admitted that there was no
written record in school that she reprimanded complainant for
her behavior. She knew that the complainant had an accident
before.

Victor Daniel, a jitney operator, testified that accusedappellant was one of his drivers. He described accused-appellant
as a hardworking and industrious person. When he learned that
Robert Remiendo was accused of rape, he was outraged because
he knew the daily activities of accused-appellant. The latter
could not have done such act under his strict supervision.

Accused-appellant testified that he knew the complainant,

as she was a townmate of his mother. In September 1996, he
and his parents were then residing in Badiwan. When the
complainant figured in an accident at that time, he was the one
who informed her parents. The first time he saw the complainant
was during the time when he was doing some repairs on his
jitney. He saw the complainant and her playmates go inside the
jitney. He told them to alight from the vehicle. Sometime in June
1997, he again saw the complainant and her sister playing inside
the jitney. He told them to alight as they were disturbing him. On
the day he was playing basketball at the church grounds in
Badiwan, Lea and Emma Chiwayan approached him and asked
him if it was true that he raped [AAA]. He asked where the latter
was and went to see her. Out of anger, he borrowed the vehicle
of Junie, started the engine, directed the exhaust pipe at the
complainant, and revved the engine so the smoke would go
straight to her. He slapped her and said if I would like someone, it
would not be you because there are a lot of girls better than
you. During the Christmas party in Badiwan, he again saw the
complainant roaming around the dance area. He told her to get
out as she irritated the people dancing. The complainant said
nothing and left the dance floor. Thereafter, he saw the
complainant laughing and smiling. He learned that he was
charged with two (2) counts of rape when he received a

subpoena issued by the Office of the Provincial Prosecutor in

January 1998.[6]

In its Joint Judgment[7] dated October 27, 2004, the RTC found
Remiendo guilty beyond reasonable doubt of two (2) counts of statutory
rape. The RTC disposed as follows:

WHEREFORE, in view of all the foregoing, the court finds

ROBERT REMIENDO y SIBLAWAN guilty beyond reasonable doubt
of two counts of rape as charged in the Information docketed as
Criminal Case No. 98-CR-2999 and in the Information docketed as
Criminal Case No. 98-CR-3000, and hereby sentences him to
suffer the penalty of eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years and one (1) day
of reclusion temporal, as maximum for each count of rape.

He shall further indemnify the offended party [AAA] the

sum of Fifty Thousand Pesos (P50,000.00) by way of civil
indemnity, the sum of Thirty Thousand Pesos (P30,000.00) by
way of moral damages, and the sum of Ten Thousand Pesos
(P10,000.00) by way of exemplary damages.

Pursuant to Administrative Circular No. 4-92-A of the Court

Administrator, the Provincial Jail Warden of Benguet Province is
directed to immediately transfer the said accused, Robert
Remiendo, to the custody of the Bureau of Corrections,
Muntinlupa City, Metro Manila after the expiration of fifteen (15)
days from date of promulgation unless otherwise ordered by this
Court.

Let a copy of this Judgment be furnished the Provincial Jail

Warden of Benguet Province for his information, guidance and
compliance.

SO ORDERED.[8]

Aggrieved, Remiendo interposed his appeal before the CA. In its

assailed Decision, the CA affirmed the RTC, modifying only the civil liability
imposed upon Remiendo.The fallo of the CA Decision reads

WHEREFORE, premises considered, the instant appeal

is DISMISSED. The Joint Judgment dated 27 October 2004
rendered by the Regional Trial Court, Branch 62, La Trinidad,
Benguet, is AFFIRMED with MODIFICATION on the civil liability
of accused-appellant. He is ordered to pay the complainant, for
each count of rape, the sum of (a) P50,000.00 as civil indemnity,
(b) P50,000.00 as moral damages, and (c) P25,000.00 as
exemplary damages.

SO ORDERED.[9]

Remiendo moved to reconsider the November 16, 2007 Decision, but

the CA denied the motion in its October 3, 2008 Resolution; hence, this
petition alleging that

(a)

THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

DECISION OF THE COURT A QUO CONVICTING PETITIONER OF
STATUTORY RAPE DESPITE THE ABSENCE OF EVIDENCE TO

PROVE THE TRUE

COMPLAINANT.

AND

REAL

AGE

OF

THE

PRIVATE

(b) THE COURT OF APPEALS GRAVELY ERRED IN NOT GIVING

PETITIONER THE BENEFIT ACCORDED TO HIM BY REPUBLIC
ACT 9344 KNOWN AS THE JUVENILE JUSTICE AND WELFARE
ACT OF 2006 INCREASING THE AGE OF CRIMINAL
RESPONSIBILITY.[10]

Remiendo questions his conviction for statutory rape despite the

purported absence of competent proof that AAA was below 12 years old at
the time of the alleged commission of the crimes. According to him, the
Certificate of Live Birth of AAA offered by the prosecution during its formal
offer of exhibits was not admitted by the RTC in its Order [11] dated September
14, 1999 because it was neither identified by any witness, nor marked as
exhibit during the trial though reserved for marking during the pretrial. He
further posits that, on the basis of the testimonies of the defense witnesses
and the Elementary School Permanent Record, [12] AAA was more than 12
years old in March and May 1997.

Considering that AAA was more than 12 years of age, Remiendo then
questions her credibility as a witness, claiming that she was smiling during
her testimony; and that her failure to flee from the situation, even taking off
her panties herself, belies her charges of statutory rape against him.

We disagree.

As provided in Article 266-A (1)(d) of the Revised Penal Code, sexual

intercourse with a girl below 12 years old is statutory rape. Its two elements
are: (1) that the accused has carnal knowledge of a woman; and (2) that the
woman is below 12 years of age. Sexual congress with a girl under 12 years
old is always rape.[13]

As regards the appreciation of the age of a rape victim, the Court,

in People v. Pruna,[14] laid down the following guidelines:

1. The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of
such party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records
which show the date of birth of the victim would suffice to prove
age.

3. If the certificate of live birth or authentic document is shown

to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victims mother or a
member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules of Evidence shall be sufficient
under the following circumstances:

a. If the victim is alleged to be below 3 years of age

and what is sought to be proved is that she is less
than 7 years old;

b. If the victim is alleged to be below 7 years of age

and what is sought to be proved is that she is less
than 12 years old;

c. If the victim is alleged to be below 12 years of age

and what is sought to be proved is that she is less
than 18 years old.

4. In the absence of a certificate of live birth, authentic

document, or the testimony of the victims mother or relatives
concerning the victims age, the complainants testimony will
suffice provided that it is expressly and clearly admitted by the
accused.

5. It is the prosecution that has the burden of proving the

age of the offended party. The failure of the accused to object to
the testimonial evidence regarding age shall not be taken
against him.

6. The trial court should always make a categorical finding

as to the age of the victim.[15]

In this case, the prosecution offered in evidence a certified true copy of AAAs
Certificate of Live Birth[16] as part of the testimonies of AAA and her mother
that AAA was born on February 21, 1986. It was reserved for marking as part
of the exhibits for the prosecution, as shown in the Pretrial Order [17] dated
November 16, 1998. During the trial, in order to abbreviate the proceedings,
the parties agreed to stipulate on the testimony of AAAs mother, specifically
on the following facts:

1. That she is [BBB], the natural mother of [AAA], the victim in

these two (2) Criminal Cases Nos. 98-CR-2999 and 98-CR-3000;

2. That on January 5, 1998[,] she executed an affidavit-complaint

for and on behalf of her daughter which she subscribed before
NBI agent Atty. Dave Alunan; and

3. That the subject matter of her sworn statement against

Reynoso Cera and Robert Remiendo is the alleged statutory rape
against [AAA].[18]

And part of the affidavit-complaint of BBB is the statement that AAA was
born on February 21, 1986.[19]

A certificate of live birth is a public document that consists of entries

(regarding the facts of birth) in public records (Civil Registry) made in the
performance of a duty by a public officer (Civil Registrar). As such, it is prima
facie evidence of the fact of birth of a child,[20] and it does not need
authentication. It can only be rebutted by clear and convincing evidence to
the contrary. Thus, despite the September 14, 1999 Order, the RTC correctly
appreciated the same in its Joint Judgment.

Nevertheless, even assuming that the Certificate of Live Birth was not
appreciated by the RTC, the prosecution was able to establish that AAA was
below 12 years old during the two occasions of rape per the guidelines laid
down in Pruna. It is significant to note that both AAA and BBB testified that
AAA was born on February 21, 1986. This fact was neither denied nor
objected to by the defense. The argument of Remiendo that the prosecution
admitted in the course of trial that AAAs birthday was February 21, 1984
cannot stand. As quoted by Remiendo in his petition

Court:

Anyway, it is stated in that document that the birth date of

[AAA] was February 21, 1983. Do you agree that that is an
entry there?

Pros. Suanding:

Yes, your honor. We agree, your honor.[21]

This statement cannot qualify as a judicial admission on the birth date

of AAA. A judicial admission is an admission, verbal or written, made by a
party in the course of the proceedings in the same case and it dispenses with
proof with respect to the matter or fact admitted. It may be contradicted only
by showing that it was made through palpable mistake or that no such
admission was made.[22] In this case, what was only admitted was that the
entry of AAAs date of birth appearing in her school record is February 21,
1983. There was no such admission that the said date was the correct
birthday of AAA. And as between the school record and the testimonies of
AAA and her mother BBB, the latter must prevail.

As to the credibility of AAA as a witness, jurisprudence instructs us that

the trial courts assessment deserves great weight, and is even conclusive
and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. The reason is obvious. Having the full
opportunity to observe directly the witnesses deportment and manner of
testifying, the trial court is in a better position than the appellate court to
evaluate testimonial evidence properly.[23]

Testimonies of rape victims who are young and immature deserve full
credence, inasmuch as no young woman, especially of tender age, would
concoct a story of defloration, allow an examination of her private parts, and
thereafter pervert herself by being the subject of a public trial, if she was not
motivated solely by the desire to obtain justice for the wrong committed
against her. Youth and immaturity are generally badges of truth. It is highly
improbable that a girl of tender years, one not yet exposed to the ways of
the world, would impute to any man a crime so serious as rape if what she
claims is not true.[24]

What is more, AAAs testimony of rape was corroborated by the NBI

medico-legal
examination
showing
healed
lacerations
on
her

hymen. Hymenal lacerations, whether healed or fresh, are the best evidence
of forcible defloration. When the consistent and forthright testimony of a
rape victim is consistent with medical findings, there is sufficient basis to
warrant a conclusion that the essential requisites of carnal knowledge have
been established. When there is no evidence to show any improper motive
on the part of the rape victim to testify falsely against the accused or to
falsely implicate him in the commission of a crime, the logical conclusion is
that the testimony is worthy of full faith and credence. [25] In this case,
Remiendo failed to convince us to rule otherwise.

Remiendo also posits that he should benefit from the mandate of

Republic Act (R.A.) No. 9344, otherwise known as the Juvenile Justice and
Welfare Act of 2006.

The pertinent provision of R.A. No. 9344 reads

SEC. 6. Minimum Age of Criminal Responsibility. A child

fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability.However,
the child shall be subjected to an intervention program pursuant
to Section 20 of this Act.

A child above fifteen (15) years but below eighteen

(18) years of age shall be likewise exempt from criminal
liability and be subjected to an intervention program,
unless he/she acted with discernment, in which case,
such child shall be subjected to the appropriate
proceedings in accordance with this Act.

The exemption from criminal liability herein established

does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.[26]

Remiendo argues that the prosecution failed to establish that he acted

with discernment in the commission of the crimes charged. Thus, he claims
that he should be exempt from criminal liability.

We differ. Discernment is the mental capacity to understand the

difference between right and wrong. The prosecution is burdened to prove
that the accused acted withdiscernment by evidence of physical appearance,
attitude or deportment not only before and during the commission of the act,
but also after and during the trial. The surrounding circumstances must
demonstrate that the minor knew what he was doing and that it was wrong.
Such circumstance includes the gruesome nature of the crime and the
minors cunning and shrewdness.[27]

Culled from the records of this case, it is manifest that Remiendo acted
with discernment, being able to distinguish between right and wrong and
knowing fully well the consequences of his acts against AAA. During the rape
that occurred in March 1997, Remiendo waited for AAA to be left alone at her
house before he came, and, while doing his dastardly act, threatened to kick
her should she shout for help. In May 1997, Remiendo again ravished AAA in
the room of his house when the latter passed by and, thereafter, threatened
to kill her if she told anybody about what had just happened. Per his own
testimony, he knew that committing rape was wrong because he claimed to
have been enraged when he was asked by AAAs playmates if he indeed
raped AAA, to the point of slapping her and revving up the engine of a jitney
and directing the smoke from the exhaust pipe towards her.

Remiendo, being above 15 and under 18 years of age at the time of

the rape,[28] and having acted with discernment, but having already reached
21 years of age at the time of the imposition of his sentence by the trial
court, his claim for the benefits of R.A. No. 9344 is rendered moot and
academic in view of Section 40[29] thereof which provides

SEC. 40. Return of the Child in Conflict with the Law to

Court. If the court finds that the objective of the disposition

measures imposed upon the child in conflict with the law have
not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with the law shall
be brought before the court for execution of judgment.

If the child in conflict with the law has reached eighteen

(18) years of age while under suspended sentence, the court
shall determine whether to discharge the child in accordance
with this Act, to order execution of sentence, or to extend the
suspended sentence for a certain period or until the child
reaches the maximum age of twenty-one (21) years.[30]

Remiendo was born on January 21, 1982. The Joint Judgment was
promulgated on October 27, 2004. Thus, at the time of the imposition of his
sentence, Remiendo was already 22 years old and could no longer be
considered a child for the purposes of the application of R.A. No. 9344.

WHEREFORE, the petition is DENIED, and the Decision dated

November 16, 2007 and the Resolution dated October 3, 2008 of the Court of
Appeals are AFFIRMED.No costs.

SO ORDERED.
G.R. No. 182239

March 16, 2011

PEOPLE
OF
THE
PHILIPPINES, Plaintiff-Appellee,
vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:

Once again, we recite the time-honored principle that the defense of

alibi cannot prevail over the victims positive identification of the accused as
the perpetrator of the crime.1 For it to prosper, the court must be convinced
that there was physical impossibility on the part of the accused to have been
at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction
has become final and executory only after his disqualification from availing of
the benefits of suspended sentence on the ground that he/she has exceeded
the age limit of twenty-one (21) years, shall still be entitled to the right to
restoration, rehabilitation, and reintegration in accordance with Republic Act
No. 9344, otherwise known as "An Act Establishing a Comprehensive Juvenile
Justice and Welfare System, Creating the Juvenile Justice and Welfare Council
under the Department of Justice, Appropriating Funds Therefor and for Other
Purposes."
Convicted for the rape of five-year-old AAA, 3 appellant Hermie M. Jacinto
seeks before this Court the reversal of the judgment of his conviction. 4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court
and docketed as Criminal Case No. 1679-13-141[1], 6 appellant was accused
of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 oclock in the
evening more or less, at barangay xxx, municipality of xxx, province of xxx
and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with
lewd design did then and there willfully, unlawfully and feloniously had carnal
knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of
minority, the victim being only five years old.7
On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the
defense admitted the existence of the following documents: (1) birth
certificate of AAA, showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.

Trial ensued with the prosecution and the defense presenting witnesses to
prove their respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki
[Julito]12 may be summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFFs house is
along the road. That of appellant lies at the back approximately 80 meters
from FFF. To access the road, appellant has to pass by FFFs house, the
frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He
bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him
all the time playing at the basketball court near her house, fetching water,
and passing by her house on his way to the road. She and appellant used to
be friends until the incident.14
At about past 6 oclock in the evening of 28 January 2003, FFF sent his eightyear-old daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA
followed CCC. When CCC returned without AAA, FFF was not alarmed. He
thought she was watching television at the house of her aunt Rita Lingcay
[Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of
Tanduay Rum.16 At the store, he saw appellant place AAA on his lap. 17 He was
wearing sleeveless shirt and a pair of short pants. 18 All of them left the store
at the same time.19 Julito proceeded to the house of Rita to watch television,
while appellant, who held the hand of AAA, went towards the direction of the
"lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of
short pants21 when he held her hand while on the road near the store. 22 They
walked towards the rice field near the house of spouses Alejandro and Gloria
Perocho [the Perochos].23 There he made her lie down on harrowed ground,
removed her panty and boxed her on the chest. 24 Already half-naked from
waist down,25 he mounted her, and, while her legs were pushed apart,
pushed his penis into her vagina and made a push and pull movement. 26 She

felt pain and cried.27Afterwards, appellant left and proceeded to the

Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs. 30 She was
without slippers.31 He found her face greasy.32 There was mud on her head
and blood was oozing from the back of her head. 33 He checked for any injury
and found on her neck a contusion that was already turning black. 34 She had
no underwear on and he saw white substance and mud on her vagina. 35 AAA
told him that appellant brought her from the store 36 to the grassy area at the
back of the house of the Perochos;37 that he threw away her pair of slippers,
removed her panty, choked her and boxed her breast; 38 and that he
proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos. 40 He asked
the appellant what he did to AAA. 41Appellant replied that he was asked to
buy rum at the store and that AAA followed him. 42 FFF went home to check
on his daughter,43 afterwhich, he went back to appellant, asked again, 44 and
boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still
watching television at the house of Rita.46AAA and her mother MMM
arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped her. 49 Julito left
and found appellant at the Perochos. 50 Julito asked appellant, "Bads, did you
really rape the child, the daughter of [MMM]?" but the latter ignored his
question.51 Appellants aunt, Gloria, told appellant that the policemen were
coming to which the appellant responded, "Wait a minute because I will wash
the dirt of my elbow (sic) and my knees." 52 Julito did found the elbows and
knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have
the incident blottered.54 FFF also had AAA undergo a physical check up at the
municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health
Physician, issued a medical certificate56 dated 29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like
material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 oclock and 9 oclock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar, 57 AAA submitted herself to another
examination at the provincial hospital on the following day. Dr. Christine Ruth
B. Micabalo, Medical Officer III of the provincial hospital, attended to her and
issued a medico-legal certificate dated 29 January 2003, 58 the pertinent
portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No.
6 and 7 there is no bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the
story. To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt
Gloria took the witness stand to affirm that he was at the Perochos at the
time of the commission of the crime. 60 Luzvilla even went further to state
that she actually saw Julito, not appellant, pick up AAA on the road. 61 In
addition, Antonia Perocho [Antonia], sister-in-law of appellants aunt,
Gloria,62 testified on the behavior of Julito after the rape incident was
revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose
house stands at the back of FFFs house. 64 He denied that there was a need
to pass by the house of FFF in order to access the road or to fetch

water.65 He, however, admitted that he occasionally worked for FFF, 66 and
whenever he was asked to buy something from the store, AAA always
approached him.67
At about 8 oclock in the morning of 28 January 2003, appellant went to the
Perochos to attend a birthday party. At 6:08 in the evening, while the visitors,
including appellant and his uncle Alejandro Perocho [Alejandro], were
gathered together in a drinking session, appellants uncle sent him to the
store to buy Tanduay Rum. Since the store is only about 20 meters from the
house, he was able to return after three (3) minutes. He was certain of the
time because he had a watch .68
Appellants aunt, Gloria, the lady of the house, confirmed that he was in her
house attending the birthday party; and that appellant went out between 6
and 7 in the evening to buy a bottle of Tanduay from the store. She recalled
that appellant was back around five (5) minutes later. She also observed that
appellants white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at
the kitchen having a drink with his uncle Alejandro and the rest of the
visitors.71 She went out to relieve herself at the side of the tree beside the
road next to the house of the Perochos. 72 From where she was, she saw Julito,
who was wearing black short pants and black T-shirt, carry AAA. 73 AAAs face
was covered and she was wiggling.74 This did not alarm her because she
thought it was just a game. 75 Meanwhile, appellant was still in the kitchen
when she returned.76Around three (3) minutes later, Luzvilla saw Julito, now
in a white T-shirt,77 running towards the house of Rita.78AAA was slowly
following behind.79 Luzvilla followed them.80 Just outside the house, Julito
embraced AAA and asked what the appellant did to her. 81 The child did not
answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching
incident and testified that appellant was twice boxed by FFF. According to
her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF
came in the second time and again boxed appellant. This time, he had a bolo
pointed at appellant. Appellants uncle Alejandro, a barangay councilor, and
another Civilian Voluntary Organization (CVO) member admonished FFF. 83
On sur-rebuttal, Antonia testified that, at 7 oclock in the evening, she was
watching the television along with other people at the house of Rita. Around
7:10, Julito, who was wearing only a pair of black short pants without a shirt

on, entered the house drunk. He paced back and forth. After 10 minutes,
AAA came in crying. Julito tightly embraced AAA and asked her what
happened. AAA did not answer. Upon Antonias advice, Julito released her
and went out of the house.84
Appellant further testified that at past 7 oclock in the evening, FFF arrived,
pointed a finger at him, brandished a bolo, and accused him of molesting
AAA. FFF left but returned at around 8 oclock in the evening. This time, he
boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision, 86 the
dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable
doubt of rape committed upon a 5-year old girl, the court sentences him to
death and orders him to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs87
The defense moved to reopen trial for reception of newly discovered
evidence stating that appellant was apparently born on 1 March 1985 and
that he was only seventeen (17) years old when the crime was committed on
28 January 2003.88 The trial court appreciated the evidence and reduced the
penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the
accused is amended in order to consider the privileged mitigating
circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for
its disposition in view of the ruling inPeople v. Mateo and the Internal Rules
of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial
court with the following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from
six (6) years and one (1) day to twelve (12) years of prision mayor, as
minimum, to seventeen (17) and four (4) months of reclusion temporal, as

maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in

the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P25,000.00 as exemplary damages and to pay the costs.91
On 19 November 2007, the Court of Appeals gave due course to the
appellants Notice of Appeal.92 This Court required the parties to
simultaneously file their respective supplemental briefs. 93 Both parties
manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94
Before the Court of Appeals, appellant argued that "THE COURT A QUO
GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF RAPE" 95 by invoking the principle that "if
the inculpatory facts and circumstances are capable of two or more
reasonable explanations, one of which is consistent with the innocence of the
accused and the other with his guilt, then the evidence does not pass the
test of moral certainty and will not suffice to support a conviction."96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape,
we consider the three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but
more difficult for the accused, though innocent, to disprove; (2) in view of the
intrinsic nature of the crime of rape in which only two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its
own merits, and cannot be allowed to draw strength from the weakness of
the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim
may be sufficient to convict the accused.98 More so, when the testimony is
supported by the medico-legal findings of the examining physician. 99
Further, the defense of alibi cannot prevail over the victims positive
identification of the perpetrator of the crime, 100 except when it is established
that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.101

I
A man commits rape by having carnal knowledge of a child under twelve (12)
years of age even in the absence of any of the following circumstances: (a)
through force, threat or intimidation; (b) when the offended party is deprived
of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of
the acts culminating in the insertion of appellants organ into the vagina of
five-year-old AAA and the medical findings of the physicians sufficiently
proved such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and
boxed you, what else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs
positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?

A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were
phrased and re-phrased in order to test that AAA well understood the
information elicited from her, said it all she had been raped. When a
woman, more so a minor, says so, she says in effect all that is essential to
show that rape was committed. 104 Significantly, youth and immaturity are
normally badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo 106 revealed
that the hymenal lacerations at 5 oclock and 9 oclock positions could have
been caused by the penetration of an object; that the redness of the introitus
could have been "the result of the repeated battering of the object;" and that
such object could have been an erect male organ.107
The credible testimony of AAA corroborated by the physicians finding of
penetration conclusively established the essential requisite of carnal
knowledge.108
II

The real identity of the assailant and the whereabouts of the appellant at the
time of the commission of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and
that appellant was elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily
identify her assailant, especially when he is not a stranger to her,
considering that she could have a good look at him during the commission of
the crime.110 AAA had known appellant all her life. Moreover, appellant and
AAA even walked together from the road near the store to the situs
criminus111 that it would be impossible for the child not to recognize the man
who held her hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering
testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was
accused, whom she called "kuya" and who used to play basketball and fetch
water near their house, and who was wearing a sleeveless shirt and shorts at
the time he raped her, was convincing and persuasive. The defense
attempted to impute the crime to someone else one Julito Apiki, but the
child, on rebuttal, was steadfast and did not equivocate, asserting that it was
accused who is younger, and not Julito, who is older, who molested her. 112
In a long line of cases, this Court has consistently ruled that the
determination by the trial court of the credibility of the witnesses deserves
full weight and respect considering that it has "the opportunity to observe
the witnesses manner of testifying, their furtive glances, calmness, sighs
and the scant or full realization of their oath," 113 unless it is shown that
material facts and circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness attempt to throw the court off the track by imputing
the crime to someone else is xxx a vain exercise in view of the private
complainants positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki,
the supposed real culprit, asked him "What is this incident, Pare?", thus

corroborating the latters testimony that he confronted accused after hearing

of the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court
erred in finding his denial and alibi weak despite the presentation of
witnesses to corroborate his testimony. Glaring inconsistencies were all over
their respective testimonies that even destroyed the credibility of the
appellants very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to
store to buy Tanduay; that he gave the bottle to his uncle; and that they had
already been drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle
Alejandro. On cross-examination, she revealed that her husband was not
around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the
second time and boxed appellant.117 It was actually the fish vendor, not her
husband, who asked appellant to buy Tanduay.118 Further, the drinking
session started only after the appellants errand to the store.119
Neither was the
consideration.

testimony

of

Luzvilla

credible

enough

to

deserve

Just like appellant, Luzvilla testified that Alejandro joined the drinking
session. This is contrary to Glorias statement that her husband was at work.
Luzvillas testimony is likewise inconsistent with that of sur-rebuttal witness
Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This
belied Luzvillas claim that Julito wore a white shirt on his way to the house of
Rita. In addition, while both the prosecution, as testified to by AAA and Julito,
and the defense, as testified to by Gloria, were consistent in saying that
appellant wore a sleeveless shirt, Luzvillas recollection differ in that Julito
wore a T-shirt (colored black and later changed to white), and, thus, a shortsleeved shirt.
Also, contrary to Luzvillas story that she saw AAA walking towards Ritas
house three (3) minutes after she returned to the Perochos at 6:38 in the
evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial courts appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home,
crying, to tell her father that Hermie had raped her. She did not first drop into
the house of Lita Lingkay to cry among strangers who were watching TV, as
Luzvilla Balucan would have the court believe. When the child was seen at
the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only
later, after she had been brought there by her mother Brenda so that Lita
Lingkay could take a look at her just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested
witnesses. The defense failed thuswise. Its witnesses cannot qualify as such,
"they being related or were one way or another linked to each other."121
Even assuming for the sake of argument that we consider the corroborations
on his whereabouts, still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would
be physically impossible for the accused to have been at the locus criminis at
the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between
the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.123
In People v. Paraiso,124 the distance of two thousand meters from the place of
the commission of the crime was considered not physically impossible to
reach in less than an hour even by foot. 125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this Court
disregarded the testimony of the defense witness attesting that the accused
was fast asleep when she left to gather bamboo trees and returned several
hours after. She could have merely presumed that the accused slept all
throughout.126
In People v. Antivola,127 the testimonies of relatives and friends corroborating
that of the appellant that he was in their company at the time of the
commission of the crime were likewise disregarded by this Court in the
following manner:

Ruben Nicolas, the appellants part-time employer, and Marites Capalad, the
appellants sister-in-law and co-worker, in unison, vouched for the appellants
physical presence in the fishpond at the time Rachel was raped. It is,
however, an established fact that the appellants house where the rape
occurred, was a stones throw away from the fishpond. Their claim
that the appellant never left their sight the entire afternoon of
December 4, 1997 is unacceptable. It was impossible for Marites to have
kept an eye on the appellant for almost four hours, since she testified that
she, too, was very much occupied with her task of counting and recording
the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50
meters away from the fishpond, could not have focused his entire attention
solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled
the victim, brought her inside his house and ravished her, then
returned to the fishpond as if he never left.128 (Emphasis
supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that
appellant never left their sight, save from the 5-minute errand to the store, is
contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the
road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals,
appellant could have committed the rape after buying the bottle of Tanduay
and immediately returned to his uncles house. 129 Unfortunately, the
testimonies of his corroborating witnesses even bolstered the fact that he
was within the immediate vicinity of the scene of the crime.130
Clearly, the defense failed to prove that it was physically impossible for
appellant to have been at the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the
guilt of the appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly
considered Republic Act No. 9344(Juvenile Justice and Welfare Act of
2006) despite the commission of the crime three (3) years before it was
enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated

in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344] 132 allows the retroactive application of the
Act to those who have been convicted and are serving sentence at the time
of the effectivity of this said Act, and who were below the age of 18 years at
the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court
is still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but
below eighteen (18) years of age from criminal liability, unless the child is
found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act.135 Such capacity may be known and should
be determined by taking into consideration all the facts and circumstances
afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong. 137 Such circumstance includes the
gruesome nature of the crime and the minors cunning and shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing
an isolated and dark place to perpetrate the crime, to prevent detection[;]
and (2) boxing the victim xxx, to weaken her defense" are indicative of then
seventeen (17) year-old appellants mental capacity to fully understand the
consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997.
Considering that she was only five (5) years old when appellant defiled her
on 28 January 2003, the law prescribing the death penalty when rape is
committed against a child below seven (7) years old141 applies.

The following, however, calls for the reduction of the penalty: (1) the
prohibition against the imposition of the penalty of death in accordance with
Republic Act No. 9346;142 and (2) the privileged mitigating circumstance of
minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the
Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the
graduation of penalties provided in Article 71 of the Revised Penal
Code.145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate
penalty of six (6) years and one (1) day to twelve (12) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case, 147 the Court En Banc, through the Honorable Justice
Teresita J. Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor
under 18 years, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to
be reckoned with. Thus, the proper imposable penalty for the accusedappellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx 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.149

Likewise, the fact that the offender was still a minor at the time he
committed the crime has no bearing on the gravity and extent of injury
suffered by the victim and her family.150 The respective awards of civil
indemnity and moral damages in the amount of P75,000.00 each are,
therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance
of minority which effectively lowered the penalty by one degree, we affirm
the damages awarded by the Court of Appeals in the amount of P75,000.00
as civil indemnity and P75,000.00 as moral damages. And, consistent with
prevailing jurisprudence,152 the amount of exemplary damages should be
increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after
the Lapse of the Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in
conflict with the law notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is
found guilty of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall
place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence
shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her
guilt.(Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August
2006, the Court of Appeals held that, consistent with Article 192 of
Presidential Decree No. 603, as amended, 154 the aforestated provision does
not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision
in Sarcia,156 overturning the ruling inGubaton. Thus:

The xxx provision makes no distinction as to the nature of the offense

committed by the child in conflict with the law, unlike P.D. No. 603 and A.M.
No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that the
benefit of suspended sentence would not apply to a child in conflict with the
law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A.
No. 9344, the Court is guided by the basic principle of statutory construction
that when the law does not distinguish, we should not distinguish. Since R.A.
No. 9344 does not distinguish between a minor who has been convicted of a
capital offense and another who has been convicted of a lesser offense, the
Court should also not distinguish and should apply the automatic suspension
of sentence to a child in conflict with the law who has been found guilty of a
heinous crime.157
The legislative intent reflected in the Senate deliberations 158 on Senate Bill
No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further
strengthened the new position of this Court to cover heinous crimes in the
application of the provision on the automatic suspension of sentence of a
child in conflict with the law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged,
accused with, or may have committed a serious offense, and may have acted
with discernment, then the child could be recommended by the Department
of Social Welfare and Development (DSWD), by the Local Council for the
Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiagos]
proposed Office of Juvenile Welfare and Restoration to go through a judicial
proceeding; but the welfare, best interests, and restoration of the child
should still be a primordial or primary consideration. Even in heinous crimes,
the intention should still be the childs restoration, rehabilitation and
reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on
Children in Conflict with the Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a
suspended sentence can no longer apply to appellant. The suspension of
sentence lasts only until the child in conflict with the law reaches the
maximum age of twenty-one (21) years.161 Section 40162 of the law and
Section 48163 of the Rule are clear on the matter. Unfortunately, appellant is
now twenty-five (25) years old.

Be that as it may, to give meaning to the legislative intent of the Act, the
promotion of the welfare of a child in conflict with the law should extend
even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The
offender shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is given the
chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is
that the offender committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other
training facility in accordance with Sec. 51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other
Training Facilities. A child in conflict with the law may, after conviction and
upon order of the court, be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an agricultural camp and other
training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to the
court of origin to effect appellants confinement in an agricultrual camp or
other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in
CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond
reasonable
doubt
of
qualified
rape
is AFFIRMED with
the
followingMODIFICATIONS: (1) the death penalty imposed on the appellant
is reduced to reclusion perpetua; and (2) appellant is ordered to pay the
victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the
court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.
SO ORDERED.

G.R. No. 45186

September 30, 1936

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
JOSEFINA BANDIAN, defendant-appellant.

ISLANDS, plaintiff-appellee,

Jose
Rivera
Yap
Office of the Solicitor-General Hilado for appellee.

for

appellant.

DIAZ, J.:
Charged with the crime of infanticide, convicted thereof and sentenced
to reclusion perpetua and the corresponding accessory penalties, with the
costs of the suit, Josefina Bandian appealed from said sentence alleging that
the trial court erred:
I. In taking into consideration, to convict her, her alleged admission to
Dr. Nepomuceno that she had thrown away her newborn babe, and
II. In holding her guilty of infanticide, beyond reasonable doubt, and in
sentencing her to reclusion perpetua, with costs.
The facts of record ma be summarized as follows:
At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the
appellant's neighbor, saw the appellant go to a thicket about four or
five brazas from her house, apparently to respond to a call of nature because
it was there that the people of the place used to go for that purpose. A few
minutes later, he again saw her emerge from the thicket with her clothes
stained with blood both in the front and back, staggering and visibly showing
signs of not being able to support herself. He ran to her aid and, having
noted that she was very weak and dizzy, he supported and helped her go up
to her house and placed her in her own bed. Upon being asked before Aguilar
brought her to her house, what happened to her, the appellant merely
answered that she was very dizzy. Not wishing to be alone with the appellant
in such circumstances, Valentin Aguilar called Adriano Comcom, who lived
nearby, to help them, and later requested him to take bamboo leaves to stop
the hemorrhage which had come upon the appellant. Comcom had scarcely
gone about five brazas when he saw the body of a newborn babe near a path
adjoining the thicket where the appellant had gone a few moments before.
Comcom informed Aguilar of it and latter told him to bring the body to the
appellant's house. Upon being asked whether the baby which had just been
shown to her was hers or not, the appellant answered in the affirmative.

Upon being notified of the incident at 2 o'clock in the afternoon of said day,
Dr. Emilio Nepomuceno, president of the sanitary division of Talisayan,
Oriental Misamis, went to the appellant's house and found her lying in bed
still bleeding. Her bed, the floor of her house and beneath it, directly under
the bed, were full of blood. Basing his opinion upon said facts, the physician
in question declared that the appellant gave birth in her house and in her
own bed; that after giving birth she threw her child into the thicket to kill it
for the purpose of concealing her dishonor from the man, Luis Kirol, with
whom she had theretofore been living maritally, because the child was not
his but of another man with whom she had previously had amorous relations.
To give force to his conclusions, he testified that the appellant had admitted
to him that she had killed her child, when he went to her house at the time
and on the date above-stated.
The prosecuting attorney and the lower court giving absolute credit to Dr.
Nepomuceno whose testimony was not corroborated but, on the contrary,
was contradicted by the very witnesses for the prosecution and by the
appellant, as will be stated later, they were of the opinion and the lower
court furthermore held, that the appellant was an infanticide. The SolicitorGeneral, however, does not agree with both. On the contrary, he maintains
that the appellant may be guilty only of abandoning a minor under
subsection 2 of article 276 of the Revised Penal Code, the abandonment
having resulted in the death of the minor allegedly abandoned.
By the way, it should be stated that there is no evidence showing how the
child in question died. Dr. Nepomuceno himself affirmed that the wounds
found in the body of the child were not caused by the hand of man but by
bites animals, the pigs that usually roamed through the thicket where it was
found.
Infanticide and abandonment of a minor, to be punishable, must be
committed wilfully or consciously, or at least it must be result of a voluntary,
conscious and free act or omission. Even in cases where said crimes are
committed through mere imprudence, the person who commits them, under
said circumstances, must be in the full enjoyment of his mental faculties, or
must be conscious of his acts, in order that he may be held liable.
The evidence certainly does not show that the appellant, in causing her
child's death in one way or another, or in abandoning it in the thicket, did so
wilfully, consciously or imprudently. She had no cause to kill or abandon it, to

expose it to death, because her affair with a former lover, which was not
unknown to her second lover, Luis Kirol, took place three years before the
incident; her married life with Kirol she considers him her husband as he
considers her his wife began a year ago; as he so testified at the trial, he
knew that the appellant was pregnant and he believed from the beginning,
affirming such belief when he testified at the trial, that the child carried by
the appellant in her womb was his, and he testified that he and she had been
eagerly waiting for the birth of the child. The appellant, therefore, had no
cause to be ashamed of her pregnancy to Kirol.
If to the foregoing facts is added the testimony of the witnesses Valentin
Aguilar and Adriano Comcom that the child was taken from the thicket and
carried already dead to the appellant's house after the appellant had left the
place, staggering, without strength to remain on her feet and very dizzy, to
the extent of having to be as in fact she was helped to go up to her house
and to lie in bed, it will clearly appear how far from the truth were Dr.
Nepomuceno's affirmation and conclusions. Also add to all these the fact that
the appellant denied having made any admission to said physician and that
from the time she became pregnant she continuously had fever. This illness
and her extreme debility undoubtedly caused by her long illness as well as
the hemorrhage which she had upon giving birth, coupled with the
circumstances that she is a primipara, being then only 23 years of age, and
therefore inexperienced as to childbirth and as to the inconvenience or
difficulties usually attending such event; and the fact that she, like her lover
Luis Kirol a mere laborer earning only twenty-five centavos a day is
uneducated and could supplant with what she had read or learned from
books what experience itself could teach her, undoubtedly were the reasons
why she was not aware of her childbirth, or if she was, it did not occur to her
or she was unable, due to her debility or dizziness, which causes may be
considered lawful or insuperable to constitute the seventh exempting
circumstance (art. 12, Revised Penal Code), to take her child from the thicket
where she had given it birth, so as not to leave it abandoned and exposed to
the danger of losing its life.
The act performed by the appellant in the morning in question, by going into
the thicket, according to her, to respond to call of nature, notwithstanding
the fact that she had fever for a long time, was perfectly lawful. If by doing
so she caused a wrong as that of giving birth to her child in that same place
and later abandoning it, not because of imprudence or any other reason than
that she was overcome by strong dizziness and extreme debility, she should

not be blamed therefor because it all happened by mere accident, from

liability any person who so acts and behaves under such circumstances (art.
12, subsection 4, Revised Penal Code).
In conclusion, taking into account the foregoing facts and considerations, and
granting that the appellant was aware of her involuntary childbirth in the
thicket and that she later failed to take her child therefrom, having been so
prevented by reason of causes entirely independent of her will, it should be
held that the alleged errors attributed to the lower court by the appellant are
true; and it appearing that under such circumstances said appellant has the
fourth and seventh exempting circumstances in her favor, is hereby
acquitted of the crime of which she had bee accused and convicted, with
costs de oficio, and she is actually confined in jail in connection with this
case, it is ordered that she be released immediately. So ordered.
Avancea, C. J., and Abad Santos, J., concur.

G.R. No. 5418, U.S. v. Tanedo, 15 Phil. 196

Republic
of
SUPREME
Manila
EN BANC

the

Philippines
COURT

February 12, 1910

G.R.
No.
5418
THE
UNITED
STATES, plaintiff-appellee,
vs.
CECILIO TAEDO, defendant-appellant.
O'Brien
&
De
Witt,
for
appellant.
Office of the Solicitor-General Harvey, for appellee.
MORELAND, J.:
The defendant in this case was accused of the crime of murder committed,
as alleged in the information, as follows:
That on or about the 26th day of January of this year, the said accused, with
the intention of killing Feliciano Sanchez, invited him to hunt wild chickens,
and, upon reaching the forest, with premeditation shot him in the breast with
a shotgun which destroyed the heart and killed the said Sanchez, and

afterwards, in order to hide the crime, buried the body of the deceased in a
well. The motive is unknown. The premeditation consists in that the accused
had prepared his plans to take the deceased to the forest, there to kill him,
so that no one could see it, and to bury him afterwards secretly in order that
the crime should remain unpunished.
The defendant was found guilty of homicide by the Court of First Instance of
the Province of Tarlac and sentenced to fourteen years eight months and one
day of reclusion temporal, accessories, indemnification and costs. The
defendant appealed.
There is very little dispute about the facts in this case, in fact no dispute at
all as to the important facts. The accused was a landowner. On the morning
of the 26th of January, 1909, he, with Bernardino Tagampa, Casimiro Pascual,
Valeriano Paulillo, and Juan Arellano, went to work on a malecon or dam on
his land. The defendant took with him a shotgun and a few shells, with the
intention to hunt wild chickens after he had set his laborers at work. He
remained with his laborers an hour or so and then went a short distance
away across a stream to see how the alteration which he had made in
the malecon affected the flow of water from the rice filed on the other side of
the stream. He carried his shotgun with him across the stream. On the other
side of the stream he met the deceased, who, with his mother and uncle, had
been living in a small shack for a month or so during the rice-harvesting
season. The accused asked the uncle of the deceased where he could find a
good place in which to hunt wild chickens. The uncle was lying on the floor in
the interior of the shack sick of fever. The deceased, a young man about 20
years of age, was working at something under a manga tree a short distance
from the shack. Although the accused directed his question to the uncle
inside of the shack, the deceased answered the question and pointed out in
a general way a portion of the forest near the edge of which stood the shack.
There is some contradiction between the testimony of the accused and the
Government witnesses just at this point. The uncle of the deceased testified
that the boy and the accused invited each other mutually to hunt wild
chickens and that the accused accepted the invitation. The accused,
however, testified that he did not invite the deceased to go hunting with him,
neither did the deceased go with him, but that he remained under the
manga tree "trying something." At any rate the accused went into the forest
with his gun. What took place there is unknown to anybody except the
accused. Upon that subject he testified as follows:

And after Feliciano Sanchez pointed out that place to me, that place where
the wild chickens were to be found, I proceeded to hunt, because, in the first
place, if I could kill some wild chickens we would have something to eat on
that day. So when I arrived at that place I saw a wild chickens and I shot him.
And after I shot that chicken I heard a human cry. I picked up the chicken and
went near the place where I heard the noise, and after I saw that I had
wounded a man I went back toward the malecon, where my companions
were working, running back, and when I arrived there I left my shotgun
behind or by a tree not far from where my companions were working; and I
called Bernardino Tagampa to tell him about the occurrence, and to him I told
of that occurence because he is my friend and besides that he was a relative
of the deceased, and when Tagampa heard of this he and myself went
together to see the dead body.
Only one shot was heard that morning and a chicken was killed by gunshot
wound. Chicken feathers were found in considerable qualities at the point
where the chicken was shot and where the accident occurred. The defendant
within a few minutes after the accident went out of the woods to
the malecon where he had left his laborers at work, carrying the dead
chicken with him. The accused called Bernardino Tagampa, on of the
laborers, to go with him and they disappeared for some time. Tagampa says
that they went a little way toward the woods and came back. The accused
says that they went to the place where the body of the deceased lay and
removed it to a place in the cogon grass where it would not be easily
observed. It is certain, however, that the body was concealed in the cogon
grass. During the afternoon Tagampa left the malecon, where his fellow
laborers were working, probably to hunt for a place in which to hide the body.
The rest of the laborers saw the witness Yumul take the chicken which had
been killed by the accused. He delivered it to the wife of the accused, who
testified that she received the chicken from Yumul and that it had been killed
by a gunshot wound. That evening the accused and Tagampa went together
to dispose of the body finally. They took it from the cogon grass where it lay
concealed and carried it about seventeen or eighteen hundred meters from
the place where it had originally fallen, and buried it in an old well, covering
it with straw and earth and burning straw on top of the well for the purpose
of concealing it. Tagampa said that he helped the accused dispose of the
body because he was afraid of him, although he admits that the accused in
no way threatened or sought to compel him to do so. The defendant prior to

the trial denied all knowledge of the death of the deceased or the
whereabouts of the body. On the trial, however, he confessed his
participation in the death of the deceased and told the story substantially as
above.
So far as can be ascertained from the evidence the prior relations between
the accused and the deceased had been normal. The deceased was a tenant
on land belonging to a relative of the accused. There was no enmity and no
unpleasant relations between them. No attempt was made to show any.
There appears to have been no motive whatever for the commission of the
crime. The Government has not attempted to show any. The only possible
reason that the accused could have for killing the deceased would be found
in the fact of a sudden quarrel between them during the hunt. That idea is
wholly negative by the fact that the chicken and the man were shot at the
same time, there having been only one shot fired.
Article 1 of the Penal Code says:
Crimes or misdemeanors are voluntary acts and omissions punished by law.
Acts and omissions punished by law are always presumed to be voluntary
unless the contrary shall appear.
Article 8, subdivision 8, reads as follows:
He who, while performing a legal act with due care, causes some injury by
mere accident without liability or intention of causing it.
Section 57 of the Code of Criminal Procedure is as follows:
A defendant in a criminal action shall be presumed to be innocent until the
contrary is proved, and in case of a reasonable doubt that his guilt is
satisfactorily shown he shall be entitled to an acquittal.
The American doctrine is substantially the same. It is uniformly held that if
life is taken by misfortune or accident while in the performance of a lawful
act executed with due care and without intention of doing harm, there is no
criminal liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia., 154,
92 Am. Dec., 417; Bertrong vs. State, 2 Tex. Ap., 160; Williamson vs. State, 2

Ohio C. C., 292; U. S. vs. Meagher, 37 Fed. Rep., 875; U. S. vs. Castro, Fed.
Cas., 14752; State vs. Legg, 3 L. R. A., N. S., 1152.)
In this case there is absolutely no evidence of negligence upon the part of
the accused. Neither is there any question that he was engaged in the
commission of a lawful act when the accident occurred. Neither is there any
evidence of the intention of the accused to cause the death of the deceased.
The only thing in the case at all suspicious upon the part of the defendant
are his concealment and denial.
In the case of the State vs. Legg, above referred to, it is said (p.1165):
Where accidental killing is relied upon as a defense, the accused is not
required to prove such a defense by a preponderance of the evidence,
because there is a denial of intentional killing, and the burden is upon the
State to show that it was intentional, and if, from a consideration of all the
evidence, both that for the State and the prisoner, there is a reasonable
doubt as to whether or not the killing was accidental or intentional, the jury
should acquit. . . . But where accidental killing is relied upon, the prisoner
admits the killing but denies that it was intentional. Therefore, the State
must show that it was intentional, and it is clearly error to instruct the jury
that the defendant must show that it was an accident by a preponderance of
the testimony, and instruction B in the Cross case was properly held to be
erroneous.
In 3 L. R. A., N. S., page 1163, it is said:
Evidence of misadventure gives rise to an important issue in a prosecution
for homicide, which must be submitted to the jury. And since a plea of
misadventure is a denial of criminal intent (or its equivalent) which
constitutes an essential element in criminal homicide, to warrant a
conviction it must be negative by the prosecution beyond a reasonable
doubt.
In support of such contention the author cites a number of cases.
We are of the opinion that the evidence is insufficient to support the
judgment of conviction.
The judgment of conviction is, therefore, reversed, the defendant acquitted,
and his discharge from custody ordered, costs de oficio. So ordered.

Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.

G.R. No. 137347
March 4, 2004
PEOPLE
OF
THE
PHILIPPINES, appellee,
vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.:

For automatic review is the Decision1 of the Regional Trial Court of Quezon
City, Branch 95, convicting appellant PO3 Ferdinand Fallorina y Fernando of
murder for the killing of eleven-year-old Vincent Jorojoro, Jr. while the latter
was flying his kite on top of a roof. The court a quo sentenced the appellant
to suffer the death penalty.
The accusatory portion of the Information charging the appellant with murder
reads:
That on or about the 26th day of September 1998, in Quezon City,
Philippines, the said accused, with intent to kill, by means of treachery
and taking advantage of superior strength, did then and there, wilfully,
unlawfully and feloniously attack, assault and employ personal
violence upon the person of VINCENT JOROJORO, JR. y MORADAS, a
minor, eleven (11) years of age, by then and there, shooting him with a
gun, hitting him on the head, thereby inflicting upon him serious and
mortal wound which was the direct and immediate cause of his death,
to the damage and prejudice of the heirs of the said offended party.
CONTRARY TO LAW.2
Upon arraignment on October 20, 1998, the appellant, with the assistance of
counsel, pleaded not guilty. Thereafter, trial ensued.
Case for the Prosecution3

Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and
Felicisima Jorojoro. The family lived at Sitio Militar, Barangay Bahay Toro,
Project 8, Quezon City. Vincent, nicknamed "Hataw," was a grade three pupil
whose education was sponsored by the Spouses Petinato, an American
couple, through an educational foundation.4
The appellant was an officer of the Philippine National Police detailed in the
Traffic Management Group (TMG) based in Camp Crame, Quezon City, but
was on detached service with the Motorcycle Unit of the Metropolitan Manila
Development Authority (MMDA).
At about 2:30 p.m. of September 26, 1998, Vincent asked permission from
his mother Felicisima if he could play outside. She agreed. 5 Together with his
playmate Whilcon "Buddha" Rodriguez, Vincent played with his kite on top of
the roof of an abandoned carinderia beside the road in Sitio Militar, Barangay
Bahay Toro. Beside thiscarinderia was a basketball court, where fourteenyear-old Ricardo Salvo and his three friends, nicknamed L.A., Nono and Puti,
were playing backan, a game of basketball.
Ricardo heard the familiar sound of a motorcycle coming from the main road
across the basketball court. He was nonplussed when he looked at the
person driving the motorcycle and recognized the appellant. Ricardo knew
that the appellant abhorred children playing on the roof of the carinderia and
berated them for it. His friend Ong-ong had previously been scolded by the
appellant for playing on the roof.
Ricardo called on Vincent and Whilcon to come down from the roof. When the
appellant saw Vincent and Whilcon, the former stopped his motorcycle and
shouted at them, "Putang inang mga batang ito, hindi kayo magsibaba
d'yan!" After hearing the shouts of the appellant, Whilcon immediately
jumped down from the roof.6 Vincent, meanwhile, was lying on his stomach
on the roof flying his kite. When he heard the appellant's shouts, Vincent
stood up and looked at the latter. Vincent turned his back, ready to get down
from the roof. Suddenly, the appellant pointed his .45 caliber pistol 7 towards
the direction of Vincent and fired a shot. Vincent was hit on the left parietal
area. He fell from the roof, lying prostrate near the canal beside the
abandoned carinderia and the basketball court.8
Whilcon rushed to help Vincent up but was shocked when he saw blood on
the latter's head. Whilcon retreated and left his friend. 9 The appellant
approached Vincent and carried the latter's hapless body in a waiting tricycle

and brought him to the Quezon City General Hospital. Vincent was
pronounced dead on arrival.
Meantime, word reached Vincent's parents that their son was shot and
brought to the hospital. They rushed to the hospital, only to see their son's
already lifeless body. The appellant was nowhere to be found.
Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National
Bureau of Investigation (NBI) conducted an autopsy where he made the
following findings:
Cyanosis, lips and nailbeds.
Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral
aspect.
Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right
side.
Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with
irregular edges, abrasion collar widest postero-inferiorly, located at the
head, left parietal area, 9.0 cms. above and 8.0 cms. behind the left
external auditory meatus, directed forward upward and from left to
right, involving the scalp, fracturing the left parietal bone (punched-in),
lacerating the left and right cerebral hemispheres of the brain,
fracturing the right parietal bone (punched-out), lacerating the scalp,
making an Exit wound, 3.3 x 1.0 cms., stellate with everted and
irregular edges, 12.0 cms. above and 2.0 cms. in front of the right
external auditory meatus.
Intracranial
bilateral.

hemorrhage,

subdural

and

subarachnoid,

extensive,

Scalp hematoma, fronto-parietal areas, bilateral.

Visceral organs, congested.
Stomach, one-fourth (1/4) filled with partially digested food particles.
CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

Dr. Baluyot testified that the victim died from a single gunshot wound in the
head. The bullet entered the left upper back portion of the head (above the
level of the left ear)11 and exited to the right side. 12 Dr. Baluyot signed
Vincent's certificate of death.13
At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P.
Aquino proceeded to the scene of the shooting but failed to find the victim
and the appellant. They proceeded to the Quezon City General Hospital
where they heard that the victim had died. They returned to the crime scene
and recovered an empty shell from a .45 caliber gun.14
On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle
Unit to which the appellant was assigned on detached service, reported to
the Sangandaan Police Station that the appellant had not reported for
duty.15 At 2:10 p.m. of September 29, 1998, Police Senior Superintendent
Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered
the appellant to the Sangandaan Police Station together with his .45 caliber
pistol bearing Serial No. AOC-38701.16
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the
Department of Justice where he was enrolled under its Witness Protection
Program. He gave his sworn statement to NBI Special Agent Roberto
Divinagracia on September 29, 1998.17 On the same date, P/Insp. Abelardo
Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit
requesting for the ballistic examination of the .45 caliber pistol with Serial
No. AOC-38701 and the empty shell of a .45 caliber gun found at the scene
of the shooting.18 Before noon on September 30, 1998, Divinagracia arrived
at the station and turned over two witnesses, Raymond Castro and Ricardo
Salvo. He also turned over the witnesses' sworn statements. 19 On October 2,
1998, on orders of the police station commander, 20 Pajarillo took pictures of
the crime scene, including the carinderia and the roof with a bullet hole as
part of the office filing. 21 He did not inform the prosecution that he took such
pictures, nor did he furnish it with copies thereof. However, the appellant's
counsel learned of the existence of the said pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report
No. FAIB-124-98 stating that:
FINDINGS:

Microscopic examination and comparison of the specimen

marked "FAP" revealed the same individual characteristics with
cartridge cases fired from the above-mentioned firearm.
CONCLUSION:
The specimen marked "FAP" was fired from the above-mentioned
caliber .45 Thompson Auto Ordnance pistol with serial number
AOC-38701.22
Vincent's family suffered mental anguish as a result of his death. As
evidenced by receipts, they spent P49,174 for the funeral.23
Case for the Appellant
The appellant denied shooting Vincent. He testified that at about 1:30 p.m.
of September 26, 1998, Macario Ortiz, a resident of Sitio San Jose, Quezon
City, asked for police assistance; Macario's brother-in-law was drunk and
armed with a knife, and was creating trouble in their house. The appellant's
house was located along a narrow alley (eskinita) perpendicular to the main
road. It was 200 meters away from Macario's house. 24 Responding to the call,
the appellant took his .45 service revolver, cocked it, put the safety lock in
place and tucked the gun at his right waistline. He brought out his
motorcycle from the garage and slowly negotiated the bumpy alley leading
to the main road. Macario, who was waiting for him at the main road, called
his attention to his revolver which was about to fall off from his waist. The
appellant got distracted and brought his motorcycle to the right side of the
road, near the abandoned carinderia where he stopped. As he stepped his
right foot on the ground to keep himself from falling, the appellant lost his
balance and slipped to the right. At this point, the revolver fell to the ground
near his foot and suddenly went off. Bystanders shouted, "Ano yon, ano yon,
mukhang may tinamaan." He picked up his gun and examined it. He put the
safety latch back on and tucked it at his right waistline. He then told Macario
to wait for a while to check if somebody was really hit. He went near the
abandoned carinderia and saw Vincent sprawled to the ground. He picked up
the bloodied child, boarded him on a tricycle on queue and instructed its
driver, Boy Candaje, to bring the boy to the hospital. 25 On board the tricycle
were Jeffrey Dalansay and Milbert Doring.
The appellant rode his motorcycle and proceeded to his mother's house in
Caloocan City but did not inform her of the incident. He then called his

superior officer, Major Isidro Suyo, at the Base 103, located at Roces Avenue,
Quezon City. The appellant informed Major Suyo that he met an accident;
that his gun fell and fired; and, that the bullet accidentally hit a child. He also
told his superior that he might not be able to report for work that day and
the following day. He assured his superior that he would surrender later. He
then went to Valenzuela City to the house of his friend PO3 Angelito Lam,
who was a motorcycle unit cop. The appellant stayed there for three days.
He also visited friends during that time.
On September 29, 1998, he went to the office of Major Suyo and surrendered
his .45 caliber pistol. Major Suyo accompanied and turned over the appellant
to the commanding officer at Camp Crame, Quezon City. The appellant was
subjected to a neuro and drug test. He stated that the results of the drug test
were negative. The appellant was then referred to the Sangandaan Police
Station for investigation.26 The pictures27 of the crime scene were given to
him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing
to a bullet hole. The appellant's testimony was corroborated in pari
materia by Macario Ortiz.
Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at
1:30 p.m. of September 26, 1998, he was playing basketball at Barangay
Bahay Toro, at the basketball court along the road beside the chapel. With
him were Ricardo, Puti and Nono. Vincent was on the rooftop of
the carinderia with Whilcon. While Puti was shooting the ball, an explosion
ensued. He and Ricardo ran beside the chapel near the basketball court. He
looked back towards the basketball court and saw the appellant, about 15
meters away from the canal, holding the prostrate and bloodied Vincent. He
did not see the appellant shoot Vincent. He did not report what he saw to the
police authorities. He was ordered by his father to testify for the appellant.
He also testified that his mother was related to Daniel, the appellant's
brother.
On January 19, 1999, the trial court rendered judgment convicting the
appellant of murder, qualified by treachery and aggravated by abuse of
public position. The trial court did not appreciate in favor of the appellant the
mitigating circumstance of voluntary surrender. The decretal portion of the
decision reads:
WHEREFORE, judgment is hereby rendered finding the accused PO3
Ferdinand Fallorina y Fernando GUILTY beyond reasonable doubt of the

crime of Murder defined in and penalized by Article 248 of the Revised

Penal Code, as amended by Republic Act No. 7659, and in view of the
presence of the aggravating circumstance of taking advantage by the
accused of his public position (par. 1, Art. 14, Revised Penal Code), is
hereby sentenced to suffer the penalty of DEATH.
The accused is hereby ordered to indemnify the heirs of the late
Vincent Jorojoro, Jr. the amounts of P49,174.00, as actual damages;
P50,000.00, as moral damages; P25,000.00, as exemplary damages;
and, P50,000.00, as death indemnity.
The accused is to pay the costs.
The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall
remain under the custody of the Court and shall be disposed of in
accordance with the existing rules and regulations upon the finality of
this decision.28
The appellant assigned the following errors for resolution:
1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE
CREDENCE TO RELEVANT PHYSICAL EVIDENCE, WHICH IF CONSIDERED
COULD HAVE ALTERED THE CONCLUSIONS ARRIVED AT BY THE COURT
AND THE OUTCOME OF THE CASE.
2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE
OF JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF
SPECULATION, PATENTLY DEMONSTRATING BIAS AND PARTIALITY.
3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE
TESTIMONY OF RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS,
WHOSE TESTIMONY IS WANTING IN PROBABILITY, AS IT IS CONTRARY
TO THE COMMON EXPERIENCE OF MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING
EXCULPATORY AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH
SHOULD HAVE BEEN CONSIDERED IN FAVOR OF THE ACCUSED.
5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE
MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF
THE ACCUSED.

6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE

AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS
POSITION BY ACCUSED.29
The appellant asserts that the trial court failed to appreciate in his favor the
physical evidence, viz., the hole found on the rooftop of the carinderia where
Vincent was when he was shot. The appellant contends that the
picture30taken on October 2, 1998 by no less than SPO2 Felix Pajarillo, one of
the principal witnesses of the prosecution, and the pictures 31 showing
Barangay Tanod Yaket pointing to a hole on the roof buttress the defense of
the appellant that the shooting was accidental. The appellant maintains that
his service revolver fell to the ground, hit a hard object, and as the barrel of
the gun was pointed to an oblique direction, it fired, hitting the victim who
was on the rooftop. The bullet hit the back portion of the victim's head,
before exiting and hitting the rooftop. The appellant posits that the pictures
belie Ricardo's testimony that he deliberately shot the victim, and, instead,
complements Dr. Baluyot's testimony that the gunshot wound came from
somewhere behind the victim, somewhere lower than the point of entrance.
The appellant invokes P/Insp. Mario Prado's testimony that if a gun hits the
ground in an oblique position, the gun will fire and the bullet will exit in the
same position as the gun, that is, also in an oblique position.
The Office of the Solicitor General, for its part, asserts that the contention of
the appellant is based on speculations and surmises, the factual basis for his
conclusion not having been proven by competent and credible evidence.
There is no evidence on record that the hole shown in the pictures 32 was
caused by a bullet from a .45 caliber pistol. The appellant did not present
Barangay Tanod Johnny Yaket, who was shown in the pictures, to testify on
the matter. The appellant failed to prove that any slug was found on the
rooftop or under the roof which came from the appellant's .45 caliber pistol.
According to the Solicitor General, the pictures relied upon by the appellant
cannot overcome the positive and straightforward testimony of the young
eyewitness Ricardo Salvo.
We agree with the Office of the Solicitor General. Whether or not the
appellant is exempt from criminal liability is a factual issue. The appellant
was burdened to prove, with clear and convincing evidence, his affirmative
defense that the victim's death was caused by his gun accidentally going off,
the bullet hitting the victim without his fault or intention of causing it; hence,

is exempt from criminal liability under Article 12, paragraph 4 of the Revised
Penal Code which reads
The following are exempt from criminal liability:

4. Any person who, while performing a lawful act with due care, causes
an injury by mere accident without fault or intention of causing it.
The basis for the exemption is the complete absence of intent and
negligence on the part of the accused. For the accused to be guilty of a
felony, it must be committed either with criminal intent or with fault or
negligence.33
The elements of this exempting circumstance are (1) a person is performing
a lawful act; (2) with due care; (3) he causes an injury to another by mere
accident; and (4) without any fault or intention of causing it. 34 An accident is
an occurrence that "happens outside the sway of our will, and although it
comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences." If the consequences are plainly
foreseeable, it will be a case of negligence.
In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an
accident is a fortuitive circumstance, event or happening; an event
happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstance is unusual or
unexpected by the person to whom it happens. Negligence, on the other
hand, is the failure to observe, for the protection of the interest of another
person, that degree of care, precaution and vigilance which the
circumstances justly demand without which such other person suffers injury.
Accident and negligence are intrinsically contradictory; one cannot exist with
the other.36 In criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act performed without
malice.37 The appellant must rely on the strength of his evidence and not on
the weakness of that of the prosecution because by admitting having caused
the death of the victim, he can no longer be acquitted.
In this case, the appellant failed to prove, with clear and convincing
evidence, his defense.

First. The appellant appended to his counter-affidavit in the Office of the

Quezon City Prosecutor the pictures showing the hole on the roof of
the carinderia38 to prove that he shot the victim accidentally. However, when
the investigating prosecutor propounded clarificatory questions on the
appellant relating to the pictures, the latter refused to answer. This can be
gleaned from the resolution of the investigating prosecutor, thus:
Classificatory questions were propounded on the respondent but were
refused to be answered. This certainly led the undersigned to cast
doubt on respondent's allegations. The defenses set forth by the
respondent are evidentiary in character and best appreciated in a fullblown trial; and that the same is not sufficient to overcome probable
cause.39
Second. The appellant did not see what part of the gun hit the victim. 40 There
is no evidence showing that the gun hit a hard object when it fell to the
ground, what part of the gun hit the ground and the position of the gun when
it fell from the appellant's waist.
Third. In answer to the clarificatory questions of the court, the appellant
testified that the chamber of his pistol was loaded with bullets and was
cocked when he placed it on his right waistline. 41 He also testified that the
gun's safety lock was on. He was asked if the gun would fire if the hammer is
moved backward with the safety lock in place, and the appellant admitted
that even if he pulled hard on the trigger, the gun would not fire:
Q

Is this your service firearm?

Yes, Your Honor.

Q
So the chamber might have been loaded when you went out of
the house?
A

Yes, Your Honor.

Q
What about the hammer, how was the hammer at that time
when you tucked the gun in your waistline?
A

The hammer was cocked like this.

COURT:

Can you not stipulate that the hammer is moved backwards near the
safety grip.
ATTY. AND PROS. SINTAY:
Admitted, Your Honor.
ATTY. PEREZ:
Yes, Your Honor.
COURT: (to the witness)
Q
You are a policeman, if there is a bullet inside the barrel of the
gun and then the hammer is moved backwards and therefore it is
open, that means that if you pull the trigger, the bullet will fire because
the hammer will move forward and then hit the base of the bullet?
A

Yes, Your Honor.

Therefore, the gun was cocked when you came out?

Yes, Your Honor.

Q
You did not place the safety lock before you went out of your
house?
A

I safety (sic) it, sir.

Q
So when you boarded the motorcycle, the gun was on a safety
lock?
A

Yes, Your Honor.

Q
Will you please place the safety lock of that gun, point it
upwards.
(witness did as instructed)
It is now on a safety locked (sic)?
A

Yes, Your Honor.

Pull the trigger if the hammer will move forward?

(witness did as instructed)

A

It will not, Your Honor.

COURT: (to the parties)

Q
Can you not admit that at this position, the accused pulled the
trigger, the hammer did not move forward?
PROS. SINTAY AND ATTY. PRINCIPE:
Admitted, Your Honor.
COURT: (to the witness)
Q
And therefore at this position, even if I pull the trigger many
times, a bullet will not come out from the muzzle of the gun because
the hammer is on a safety locked (sic)?
A

Yes, Your Honor.

Even if I pushed it very hard, it will not fire the gun?

Yes, Your Honor.

Q
Alright, I will ask you again a question. If the hammer of the gun
is like this and therefore it is open but it is on a safety lock, there is
space between the safety grip which is found below the hammer, there
is a space, is it not?
A

Yes, Your Honor.

That even if I pushed the safety grip forward, like this.

The Court gave the gun to the accused for him to demonstrate.
(to the witness)
You push it forward in order to push the hammer. Hard if you want but
do not remove the safety lock.

(witness did as instructed)

The witness tried to push the safety grip and it does not touch the
hammer even if the hammer is cocked.42
Fourth. The trial court was witness as the appellant's counsel himself proved
that the defense proffered by the appellant was incredible. This can be
gleaned from the decision of the trial court:
3. More importantly, and which the Court considers it as providential,
when the counsel of the accused was holding the gun in a cocked
position and the safety lock put in place, the gun accidentally dropped
on the cemented floor of the courtroom and the gun did not fire and
neither was the safety lock moved to its unlock position to cause the
hammer of the gun to move forward. The safety lock of the gun
remained in the same position as it was when it dropped on the floor.43
Fifth. After the shooting, the appellant refused to surrender himself and his
service firearm. He hid from the investigating police officers and concealed
himself in the house of his friend SPO3 Angelito Lam in Valenzuela City, and
transferred from one house to another for three days to prevent his arrest:
Q

So did you surrender that afternoon of September 26, 1998?

No, Your Honor.

I thought you were surrendering to Major Suyo?

I was but I was not able to surrender to Major Suyo, Your Honor.

Why, you were already able to talk to Major Suyo?

A
Because at that time I was already confused and did not know
what to do, Your Honor.
ATTY. PRINCIPE: (to the witness)
Q

What is your relation with PO3 Angelito Lam of Valenzuela?

Just my co-motorcycle unit cop in the TMG, sir.

Q
Did I hear you right that you slept at the residence of PO3 Lam
for three days?
A

Yes, sir.

Why instead of going home to your residence at Bahay Toro?

Because I am worried, sir.

COURT: (to the witness)

Q

So what did you do for three days in the house of PO3 Lam?

A
During daytime, I go to my friends, other friends and in the
evening, I go back to the house of PO3 Lam, Your Honor.
Q
So if you were able to visit your friends on September 27 or 28,
1998 and then returned to the house of PO3 Lam in the evening, why
did you not go to Major Suyo or to your 103 Base?
A

Your Honor, during those days I am really calling Major Suyo.

Why did you not go to your office at Camp Crame, Quezon City?

At that time, I did not have money, Your Honor.

Q
What is the connection of you having money to that of informing
your officer that you will surrender?
A
What I know, Your Honor, is that if I do that I will already be
detained and that I will have no money to spend.
ATTY. PRINCIPE: (to the witness)
Q
Mr. Witness, from the time of the incident up to Sept. 29, 1998,
you did not even visit your family in Barangay Bahay Toro?
A

No, sir.

COURT: (to the witness)

Q

Did you send somebody to visit your family?

No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q

Did you cause to blotter the shooting incident of Vincent?

I was not able to do that, sir.

You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?

No sir, because I already brought the child to the hospital.44

The conduct of the appellant after the shooting belies his claim that the
death of the victim was accidental and that he was not negligent.
We agree with the encompassing disquisitions of the trial court in its decision
on this matter:
The coup de grace against the claim of the accused, a policeman, that
the victim was accidentally shot was his failure to surrender himself
and his gun immediately after the incident. As a police officer, it is hard
to believe that he would choose to flee and keep himself out of sight
for about three (3) days if he indeed was not at fault. It is beyond
human comprehension that a policeman, who professes innocence
would come out into the open only three (3) days from the incident and
claim that the victim was accidentally shot. Human behavior dictates,
especially when the accused is a policeman, that when one is innocent
of some acts or when one is in the performance of a lawful act but
causes injury to another without fault or negligence, he would, at the
first moment, surrender to the authorities and give an account of the
accident. His failure to do so would invite suspicion and whatever
account or statement he would give later on becomes doubtful.
For the accused, therefore, to claim that Vincent was accidentally shot
is odious, if not, an insult to human intelligence; it is incredible and
unbelievable, and more of a fantasy than a reality. It was a deliberate
and intentional act, contrary to accused's claim, that it happened
outside the sway of his will.45
It is a well-entrenched rule that findings of facts of the trial court, its
calibration of the testimonies of the witnesses, its assessment of the

credibility of the said witnesses and the probative weight of their testimonies
are accorded high respect, if not conclusive effect by the appellate court, as
the trial judge was in a better position to observe the demeanor and conduct
of the witnesses as they testified.46 We have carefully reviewed the records
of the case and found no reason to deviate from the findings of the trial
court.
The testimony of prosecution witness Ricardo Salvo deserves credence. He
testified in a positive and straightforward manner, which testimony had the
earmarks of truth and sincerity. Even as he was subjected to a grueling crossexamination by the appellant's counsel, he never wavered in his testimony.
He positively identified the appellant as the assailant and narrated in detail
how the latter deliberately aimed his gun and shot the victim. The relevant
portions of his testimony are quoted:
Q:
While playing basketball with Nono, LA and Puti, do you
remember of any unusual incident which took place?
A:

Yes, sir.

Q:

What was that unusual incident?

A:

When Vincent was shot, sir.

Q:

Who shot Vincent?

A:

Ferdinand Fallorina, sir.

Q:

And in what place that Vincent was shot by Fallorina?

A:

He was at the roof of the karinderia, sir.

Q:

Was there any companion of Vincent?

A:

Yes, sir.

Q:
What was the position of Vincent at that time that you saw him
and Fallorina shot him?
A:

"Nakatalikod po siya."


Q:
You included in this Exhibit O your drawing the figure of a certain
Jeffrey and you and his tricycle? Why did you include this drawing?
A:
Because it was in the tricycle where Vincent was boarded to and
brought to the hospital.
(Witness referring to Exhibit O-11)
Q:

And who was the driver of that tricycle?

A:

It was Jeffrey who drove the tricycle, sir.

Q:
You also drew here a motorcycle already marked as Exhibit O-7.
Why did you include the motorcycle?
A:

Because Fallorina was riding on that motorcycle at that time.

COURT: (to the witness)

Q:
So when Ferdinand Fallorina shot the boy, the motorcycle was
moving?
A:

It was stationary, your Honor.

Q:
Did you see where he came from, I am referring to Fallorina
before you saw him shot the boy?

A:

He came from their house, Your Honor.

Q:

What was his attire, I am referring to Ferdinand Fallorina?

A:

He was wearing white shirt and blue pants, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q:
there?
A:

At that time that Fallorina shot the victim, was Buddha still

He ran, sir. He jumped in this place, sir.

(Witness is pointing to a place near the canal already marked as

Exhibit O-14).
Q:
Now from the witness stand that you are now seated. Can you
tell the Court how far where (sic) you from Fallorina at that time of the
shooting?
COURT:
Can the prosecution and the accused stipulate that the distance
pointed to by the witness is more or less 7 meters.

ATTY. PRINCIPE: (to the witness)

Q:
that?

How about the distance of Fallorina from Vincent, can you tell

COURT: (to the witness)

Can you point a distance between Fallorina and the boy at that time
the body (sic) was shot?
COURT:
10 meters more or less?

Q:
How long have you known Ferdinand Fallorina before the
incident?
A:

More or less two years, sir.

Q:

Why do you know him?

A:
I usually see him in that place at Sitio Militar, especially on
Sundays, sir.

Q:

How many shots did you hear?

A:

Only one, sir.

Q:

Do you recognize the gun used by Fallorina?

A:

Yes, sir.

Q:

What was that gun?

A:

.45 cal., sir.

Q:

Are you familiar with .45 cal.?

A:

No, sir.

Q:

Why do you know that it was .45 cal.?

A:

Because that kind of gun, I usually see that in the movies, sir.

Q:
Ricardo, you said that you have known Fallorina for two (2) years
and you saw him shot Vincent on September 26, 1998 at around 2:30
in the afternoon. Please look around the courtroom now and point at
the person of PO3 Ferdinand Fallorina?
CT. INTERPRETER:
Witness is pointing to a male person the one seated at the back of the
lady and wearing a yellow shirt and maong pants and when asked of
his name, he stated his name as Ferdinand Fallorina.
ATTY. PRINCIPE: (to the witness)
Q:
Can you tell to the Court whether you heard utterances at that
time that he shot the victim?

A:

Yes, sir.

Q:

What was that?

A:

"Putang inang mga batang ito, hindi kayo magsisibaba diyan!"

Q:
After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro
falling from the roof, what about Fallorina, what did he do?
A:
He was still on board his motorcycle and then he went at the
back of the karinderia where Vincent fell, Your Honor.
Q:
And after he went at the back of the karinderia and looked at
Vincent Jorojoro, what did he do?
A:

He carried Vincent, Your Honor.

Q:

And after carrying Vincent, what did he do?

A:

He boarded Vincent in the tricycle.

Q:

What about the gun, what did he do with the gun?

A:

I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he
shot the victim. In fine, his act was deliberate and intentional.
It bears stressing that of the eyewitnesses listed in the Information as
witnesses for the prosecution, only Ricardo Salvo remained steadfast after he
was brought under the Witness Protection Program of the Department of
Justice. He explained that the reason why he testified for the prosecution,
despite the fact that the appellant was a policeman, was because he pitied
the victim's mother who was always crying, 48 unable to obtain justice for her
son. We find no ill motive why Ricardo would falsely testify against the
appellant. It was only his purest intention of ferreting out the truth in this
incident and that justice be done to the victim. 49 Hence, the testimony of
Ricardo is entitled to full faith and credence.
The Crime Committed by the Appellant

We agree with the trial court that the appellant committed murder under
Article 248 of the Revised Penal Code qualified by treachery. As the trial court
correctly pointed out, Vincent was shot intentionally while his back was
turned against the appellant. The little boy was merely flying his kite and
was ready to get down from the roof when the appellant fired a shot directed
at him. The essence of treachery is the sudden and unexpected attack on an
unsuspecting
victim
without
the
slightest
provocation
on
his
50
part. Nonetheless, Vincent was an eleven-year-old boy. He could not
possibly put up a defense against the appellant, a police officer who was
armed with a gun. It is not so much as to put emphasis on the age of the
victim, rather it is more of a description of the young victim's state of
helplessness.51 Minor children, who by reason of their tender years, cannot
be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.52 The abuse of superior strength as alleged in the
Information is already absorbed by treachery and need not be considered as
a separate aggravating circumstance.53
We, however, note that the trial court appreciated the aggravating
circumstance of abuse of public position in this case. We reverse the trial
court on this score.
There is no dispute that the appellant is a policeman and that he used his
service firearm, the .45 caliber pistol, in shooting the victim. However, there
is no evidence on record that the appellant took advantage of his position as
a policeman when he shot the victim.54 The shooting occurred only when the
appellant saw the victim on the rooftop playing with his kite. The trial court
erred in appreciating abuse of public position against the appellant.
The trial court did not, however, err in ruling that the appellant is not entitled
to the mitigating circumstance of voluntary surrender. Surrender is said to be
voluntary when it is done by the accused spontaneously and made in such a
manner that it shows the intent of the accused to surrender unconditionally
to the authorities, either because he acknowledges his guilt or he wishes to
save them the trouble and expense necessarily incurred in his search and
capture.55
In this case, the appellant deliberately evaded arrest, hid in the house of PO3
Lam in Valenzuela City, and even moved from one house to another for three
days. The appellant was a policeman who swore to obey the law. He made it
difficult for his brother-officers to arrest him and terminate their

investigation. It was only after the lapse of three days that the appellant
gave himself up and surrendered his service firearm.
Under Article 248 of the Revised Penal Code, the penalty for murder is
reclusion perpetua to death. Since there is no modifying circumstance in the
commission of the crime, the appellant should be sentenced to suffer the
penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal
Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court
of Quezon City, Branch 95, is AFFIRMED WITH MODIFICATION. The appellant
PO3 Ferdinand Fallorina y Fernando is found guilty beyond reasonable doubt
of the crime of murder under Article 248 of the Revised Penal Code and,
there being no modifying circumstances in the commission of the crime, is
hereby sentenced to suffer the penalty of reclusion perpetua. He is also
ordered to pay the heirs of the victim Vincent Jorojoro, Jr. the amount of
P49,174 as actual damages; P50,000 as moral damages; P50,000 as civil
indemnity; and P25,000 as exemplary damages.
SO ORDERED.

G.R. No. 29396, People v. Ayaya, 52 Phil. 354

Republic
of
the
SUPREME
Manila
EN BANC

Philippines
COURT

November 9, 1928
G.R.
No.
29396
THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
PRAXEDES AYAYA, defendant-appellant.
G.
N.
Trinidad
for
appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The appellant was tried in the Court of First Instance of Tayabas upon the
following information:

That on or about January 15, 1928, in the municipality of Pagbilao, Province

of Tayabas, Philippine Islands, and within the jurisdiction of this court, the
above-named accused, with the intent to kill her husband Benito dela Cruz,
with whom she was united in lawful marriage, with treachery and by means
of an umbrella, did voluntarily, unlawfully, and feloniously assault and attack
her said husband Benito de la Cruz, inflicting a mortal wound in the upper
left eyelid, as a result of which said Benito de la Cruz died five (5) days
thereafter. In violation of article 402 of the Penal Code.
It appears from the record that at about 1 o'clock in the morning of January
16, 1928, Jose Fajardo, the chief of police of Pagbilao, Tayabas, was informed
by a policeman that one Benito de la Cruz was drunk, wounded, and
vomiting in his house in said municipality. Said chief of police went to the
place and found Benito, the deceased, lying in bed with a wound on his left
eyelid, and unconscious, for he did not answer the questions put to him.
When his wife, the defendant Praxedes Ayaya, was questioned as to the
cause of that wound, she replied that it was due to the fact that she herself
had jabbed her husband with an umbrella. Health officer Victoriano Litonjua
was then called, and upon examining Benito, found he had a wound on the
left upper eyelid which was bleeding: that his pupils were dilated and, from
the odor of his breath and from his vomiting, it appeared that Benito was
drunk. In view of the wounded man's condition he was later taken to the
provincial hospital of Tayabas, where he died four days after the incident.
Health officer Litonjua and Dr. G. Santos Cuyugan, the director of the
provincial hospital of Tayabas, who treated the wounded man, expressed
different opinions as to the cause of the death of Benito de la Cruz. Health
officer Litonjua believes that the deceased's cerebral hemorrhage was due to
his alcoholic excesses, whereas Doctor Cuyugan, who performed the
autopsy, declared that the wound was caused by some blunt instrument and
that his death was caused by the cerebral hemorrhage produced by the
wound he had received in the forehead, and that health officer Litonjua's
statement as to said hemorrhage being due to the alcohol is erroneous. The
trial court found the defendant guilty of the crime alleged in the information,
and taking into account that the defendant did not intend to inflict so grave
an injury as she did, and that there had been provocation on the part of the
offended party, sentenced her to fourteen years, eight months and one
day reclusion temporal, with the accessories of the law, and to pay the heirs

of the deceased the sum of P500 by way of indemnity, plus the costs of the
action.
The defendant appealed from this judgment, and her attorney, in support of
the petition that the judgment appealed from be reversed and the appellant
acquitted with costs de oficio, assigns the following errors: (1) The trial court
erred in holding that the deceased's wound on the left upper eyelid was
caused by the appellant; (2) supposing, without admitting, that said wound
was really caused by the herein appellant, the lower court erred in
concluding that said wound was the immediate cause of the death of the
deceased and consequently, in convicting the appellant; and (3) the lower
court erred in not acquitting the appellant, at least, for reasonable doubt.
The evidence presented by the prosecution to prove that the crime charged,
consists of the following: Exhibit A, which is the sworn statement filed by the
accused with the justice of the peace of Pagbilao; Exhibit B, which is the
umbrella used by the defendant and with which she jabbed the deceased;
Exhibit C, which is the report of the autopsy of Benito de la Cruz signed by
Doctor Cuyugan; and Exhibit D, which is the death certificate.
In the defendant's sworn statement she states, among other things, that at
about 8 o'clock at night on January 15, 1928, she, with her husband Benito
de la Cruz, and her son Emilio, drank tuba in the store of one Felicidad
Losloso; that afterwards they went to a cinema; that while returning home
and without any warning her husband, who was drunk, gave her a blow
which she dodged; that then her husband went home, preceding her and her
son and when they arrived at the house they found the door closed; that she
and her son pushed the door and attempted to open it, but her husband, who
was inside, prevented it; that then the door gave way somewhat and her son
Emilio succeeded in putting his head between the opening of the door and
the wall and in order to prevent the door from crushing him, she pushed it;
that Benito then poked his head out of the opening of the door and when she
saw him, she jabbed him with the umbrella she carried; that she does not
know where she jabbed him although she thinks it was in the body; and that
when she and her son finally succeeded in entering the house, they found
that Benito was already in bed with a wound in the forehead. The accused
herself, in her testimony in her own behalf, substantially repeated what she
had declared before the justice of the peace of Pagbilao, stating, however,
that when the door was opened and her son put his head between the
opening of the door and the wall, in order to prevent the door from crushing

her son's head, she jabbed her husband with her umbrella with a downward
motion, though she could not tell if she touched him or not. She stated,
furthermore, that she did not know how the wound in her husband's forehead
was caused. This point of the defendant's testimony has not been
contradicted by any evidence to the contrary; rather it has been
corroborated by her son Emilio de la Cruz who also testified at the trial.
On the other hand, it appears from the testimony of the defendant and of her
son that the husband and wife did not quarrel in the street while returning
home on the night in question, and, moreover, that during the marriage they
lived together in peace with no disagreements between them, either on or
before the date of the incident.
In view of the fact that there is no eyewitness of the act herein prosecuted,
with the exception of the defendant and her son Emilio de la Cruz, we are
compelled to accept the declaration of the defendant that she jabbed her
husband with her umbrella in order to prevent the door from closing and
crushing her son's head which was inserted between said door and the wall
of the house. Said defendant, explaining what took place, says in part:
"When the door was ajar my son went in, and then my husband pushed it
and as I saw that he was about to crush my son's head, I jabbed my husband
with the point of the umbrella, downwards to prevent him from crushing my
son's head." We find nothing improbable in this statement and if we add to
this the absence of any reasonable motive to prompt said defendant to injure
her husband, we are compelled to conclude that in thrusting her umbrella in
the opening of the door in question, she did so to free her son from the
imminent danger of having his head crushed or being strangled; and if she
thus caused her husband's injury, it was by a mere accident, without any
fault or intention to cause it. This being so, we believe that she incurred no
criminal liability in accordance with article 8, No. 8, of the Penal Code,
because, it being a licit act to free her son from the grave danger threatening
him, and the fact of having touched the left eye of her husband, who was
behind the door, with the end of her umbrella, does not make her criminally
liable. (Decision of the Supreme Court of Spain of November 30, 1888.)
Whereof the judgment appealed from is reversed, and the appellant
Praxedes Ayaya must be, as she hereby is, acquitted, with costs de oficio. So
ordered.

Avancea, C. J., Johnson, Street, Malcolm, Ostrand, Romualdez and VillaReal,

PEOPLE OF THE PHILIPPINES, appellee, vs. FEDERICO GENITA, JR. y
CULTURA, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
Challenged in this appeal is the Decision [1] dated June 14, 1996 of the
Regional Trial Court, Branch 4, Butuan City in Criminal Case No. 4954 finding
Federico Genita, Jr., appellant herein, guilty beyond reasonable doubt of two
counts of murder and sentencing him to suffer reclusion perpetua for each
count.
Appellant was charged in an Information which reads:
That on or about the evening of December 17, 1991 in Barangay Bugsukan,
Butuan City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, and with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shot with the use of a high powered firearm one Jesus Bascon
thereby hitting him on both legs, and Reynaldo Timbal who was hit on his
head which caused their subsequent death.[2]
On arraignment, petitioner pleaded not guilty. Forthwith, trial ensued. The
prosecution presented Danilo Timbal, Vicente Olaco and Dr. Elsie Caballero
as its witnesses. Appellant took the witness stand for the defense.
The version of the prosecution is as follows:
On December 17, 1991, at around 8:00 oclock in the evening, while the
victims Reynaldo Timbal and Jesus Bascon were loading firewood in a truck in
Barangay Bugsukan, Butuan City, appellant who was drunk and armed with
an M-14 rifle, asked Reynaldo for a Christmas gift. Reynaldo told him to just
come back because they were still loading firewood. Appellant left the
place. Not long after, he returned and fired his gun at Jesus feet, hitting his
left leg. He immediately jumped into the truck. Appellant then went near its
bumper and fired at the tire near the chassis. Then he changed the

magazine of his gun and fired again at Jesus, this time, hitting his right
leg. Reynaldo ran away, his right hand covering his head. Appellant chased
him and fired at him, hitting his nape and right hand. After the commotion,
the victims co-workers who were able to take refuge from the cascade of
bullets returned to the scene and found the dead body of Reynaldo. Jesus
was immediately brought to the Butuan City General Hospital but died
thereafter.[3]
Dr. Elsie Caballero, City Health Officer of Butuan City, who conducted the
post mortem examination of the body of Reynaldo, found that he died of
shock, gunshot wound in the neck with avulsion of brain tissues. [4] On the
other hand, the Death Certificate[5] issued by Dr. Raul Monton, Medical
Specialist II of the Butuan City General Hospital, attributed Jesus death to
compound fractures, (R) & (L) Legs, and Hypovolemic Shock.
Appellant, relying on the exempting circumstance of accident as his
defense, presented a different version. He testified that he was a member of
the Civilian Armed Forces Geographical Unit (CAFGU) stationed at Bugsukan,
Butuan City, hence, he was officially issued an M-14 rifle. On the evening of
December 17, 1991, while on his way to his camp, he saw a truck parked at
the right side of the road with its rear lights on. While approaching the
vehicle, somebody grasped his neck. As a consequence, he accidentally
pulled the trigger of the M-14 rifle slung on his shoulder. The weapon
automatically fired. At this instance, his assailant set him free. Immediately
he rushed to the camp and reported the incident to Sgt. Montealto who
placed the camp on alert. Appellant stayed in the camp during the entire
evening. The following morning, he learned that two persons were killed.[6]
On June 14, 1996, the trial court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, finding accused FEDERICO GENITA, JR. y CULTURA guilty
beyond reasonable doubt for the death of the two (2) victims:
(1) He is hereby sentenced to reclusion perpetua with its accessory penalties
for the death of Reynaldo Timbal which penalty entails imprisonment for at
least thirty (30) years.
(2) For the death of Jesus Bascon, the said accused, FEDERICO GENITA, JR. y
CULTURA is also sentenced to another penalty of reclusion perpetua with its

accessory penalties which penalty entails another imprisonment of at least

thirty (30) years.
Both sentences shall be served by the accused successively at the Davao
Prison and Penal Farm at Panabo, Davao del Norte.
Accused is also ordered to indemnify the Heirs of Reynaldo Timbal the sum of
Fifty Thousand (P50,000.00) pesos and another Fifty Thousand (P50,000.00)
pesos for the Heirs of Jesus Bascon plus costs of suit.
IT IS SO ORDERED.[7]
Hence, this appeal anchored on the following assignments of error:
I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY
WEIGHT TO THE EXEMPTING CIRCUMSTANCE OF ACCIDENT
INTERPOSED BY THE ACCUSED-APPELLANT
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF
THE PROSECUTION TO PROVE ITS ATTENDANCE ON THE
ASSUMPTION THAT THE KILLING OF THE VICTIM WAS NOT
ACCIDENTAL.[8]
Appellant contends that he was performing a lawful act with due care
when the victims were killed. He was then on his way to the CAFGU station to
report for duty. He had no intention to kill the victims. He accidentally pulled
the trigger of the rifle and the bullets hit the victims. Thus, he should have
been exempted from any criminal liability. Even assuming that he is liable for
the death of the victims, he contends that the trial court erred in
appreciating the qualifying circumstance of treachery.
The Solicitor General maintains that considering the number of gunshot
wounds inflicted on the victims, the shooting could not have been an
accident. Nonetheless, the Solicitor General agrees with appellant that the
qualifying circumstance of treachery was not sufficiently proven, stressing
that the latter was drunk when he approached Reynaldo. This should have

put the victims on guard as it was established during the hearing that
appellant tends to be cantankerous and out of control when he is drunk. Also,
it was not proven that he consciously adopted the means of executing the
crime.
Appellants version that he accidentally shot the two victims is
incredible. Accident is an exempting circumstance under Article 12 of the
Revised Penal Code. It must be stressed that in raising this defense,
appellant has the burden of the evidence and it was incumbent upon him to
establish that he was exempt from criminal liability. [9] He must show with
clear and convincing proofs that: 1) he was performing a lawful act with due
care, 2) the injury caused was by a mere accident, and 3) he had no fault or
intention of causing the injury. Considering appellants evidence, it is clear
that the requisites of accident as an exempting circumstance were not
proven. First, appellants manner of carrying his M-14 rifle negates his claim
of due care in the performance of an act. Knowing that his rifle was
automatic, he should have seen to it that its safety lock was intact. Worse,
he admitted that his finger was constantly on the trigger. With the safety lock
released and his finger on the trigger, how can we conclude that he acted
with due care? We cannot accept his version that he was just following his
trainers instruction to release the safety lock while in a critical area. [10] For
one, he never presented his trainer to corroborate his statement; and for
another, he was not in a critical area. Second,the number of wounds
sustained by the victims shows that the shooting was not merely
accidental. Both victims sustained more than one wound. While it could have
been possible that the first wound sustained by both victims was by
accident, however, the subsequent wounds sustained by them in different
parts of their bodies could not have been similarly inflicted. Andthird,
appellant manifested an unmistakable intent to kill the victims when
he reloaded his rifle after his first unsuccessful attempt to kill them. Jesus
had already sought refuge by jumping into the truck when another bullet hit
his right leg. Reynaldo was already running away when he was shot on his
nape and right hand. That appellant chased the victims and shot them
several times clearly show that he had the intent to kill them. [11] His defense
must necessarily fail.
Moreover, if it were true that someone attacked appellant, thus causing
him to accidentally pull the trigger of his rifle, then his natural reaction
should have been to defend himself.Instead, he rushed towards the
camp. Furthermore, he did not present any evidence to support his allegation

that the CAFGU was placed on alert. And not a single witness corroborated
his version of accidental shooting, an indication that it is fabricated.
The trial court found the testimonies of the prosecution witnesses
credible. We stamp our agreement to such finding. Woven in the fabric of our
jurisprudence is that the findings of the trial court are accorded not only the
highest respect, but also finality, unless some weighty circumstance has
been ignored or misunderstood but which could alter the result and could
affect the judgment to be rendered. Given the direct opportunity to observe
the witness on the stand, the trial judge was in a vantage position to assess
the demeanor of the witnesses and determine if they were telling the truth or
not.[12] Here, the trial court keenly observed:
The defense counsel attempted to force into the mouth of the accused the
answer counsel wanted accused to respond to his questions. During the
direct examination, for instance, defense counsel propounded this question:
Atty. Dagani:
Q It appears from your testimony that while you were walking from
your house to the camp, you seemed to be prepared for fight, do
you agree with me on that?
It is obvious that this leading question was propounded to explain why the
finger of the accused was on the trigger of the weapon. The attempt of the
defense counsel to elicit the desired answer was apparently to support the
theory that the accused was on alert that evening with the safety lock of his
rifle released.
Pitted against the clear, positive and impressive account narrated by the
prosecution witnesses, the claim of accidental shooting is exposed of what it
is a farce, an invention of the imagination.
Furthermore, the trial court found that the prosecution witnesses were
not motivated by any ill desire to implicate appellant with a serious
charge. The absence of motive on their part lends more credence to their
testimonies.
However, we find that the trial court erred in finding that treachery exists
in the commission of the crime. There is treachery when the offender
commits any of the crimes against persons employing means, methods or

forms in the execution thereof, which tend directly and especially to insure
its execution, without risk to himself arising from the defense which the
offended party might make. Thus, for the crime to be qualified by treachery
the following elements must be proved: (1) the means of execution
employed gave the person attacked no opportunity to defend himself or to
retaliate; and (2) the means of execution were deliberately or consciously
adopted.[13] Treachery cannot be presumed but must be proved by clear and
convincing evidence or as conclusively as the killing itself. Hence, where no
particulars are shown as to the manner by which the aggression was
commenced or how the act which resulted in the death of the victim began
and developed, treachery can in no way be established from mere
suppositions, drawn solely from circumstances prior to the killing. [14] In the
instant case, it appears from the record that the attack was not so swift so as
to render the victims off guarded. Contrary to the finding of the trial court,
appellant could not have managed to stealthily approach and suddenly fire
at the victims. Therefore the means in executing the crime cannot be
considered deliberate. Besides, Jesus had the chance to jump into the truck
after he was hit at the left leg. Reynaldo, on the other hand, was able to run
away and take cover, though unsuccessful. As a matter of fact, the other
laborers who were with the victims managed to evade the volley of bullets. It
cannot be said, therefore, that the victims were unprepared to put up a
defense.
Since the aggravating circumstance of treachery was not proven,
appellant can only be convicted of two separate crimes of homicide
punishable under Article 249 of the Revised Penal Code. The Solicitor General
maintains that he should be convicted of double homicide, a complex crime
punishable under Article 48 of the Revised Penal Code which provides:
ARTICLE 48. Penalty for complex crimes. When a single act constituted two
or more grave or less grave felonies or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall
be imposed, the same to be applied in its maximum period.
The instant case does not fall under the above provision. The finding of
the trial court tells why, thus:
Let it be noted, though, that herein accused killed both deceased one after
the other. As described by witness Danilo Timbal accused Genita first fired at
Jesus Bascon who was in the truck. He then shot the front tire of the truck.

After reloading, he went back to Bascon and shot him again. During this time
Reynaldo Timbal was at the back of the truck. When Reynaldo Timbal ran
away, accused fired at him hitting the deceased on the head and wounding
the deceaseds right hand which covered his head while he was running. For
each death, therefore, accused shall be held criminally liable.
Appellant, therefore, must be convicted of two separate crimes of
homicide.
The penalty for homicide is reclusion temporal. In view of the absence of
the qualifying circumstance of treachery, appellant can only be convicted of
homicide punishable by reclusion temporal.[15] There being neither mitigating
nor aggravating circumstance that attended the commission of the crime,
the imposable penalty is the medium period of reclusion temporal.
[16]
Applying the Indeterminate Sentence Law, appellant should be meted out
the indeterminate sentence of ten (10) years and one (1) day of prision
mayor maximum, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal medium, as maximum.
With regard to civil liability, no proof was presented as to the actual or
moral damages. The trial court, however, ordered appellant to indemnify the
heirs of each of the victims the amount of P50,000.00, which we
affirm. Unlike the award of actual damages, the award of civil indemnity
need no proof other than the death of the victim. [17] In addition, temperate
damages may be recovered under Article 2224 of the Civil Code, as it cannot
be denied that the heirs suffered some pecuniary loss although the exact
amount was not proved with certainty. Hence, an award of P25,000.00 by
way of temperate damages would be appropriate.[18] The heirs of Reynaldo
and Jesus are awarded P50,000.00 each as civil indemnity andP25,000.00 as
temperate damages.
WHEREFORE, the Decision of the trial court is MODIFIED in the sense
that appellant is hereby found guilty beyond reasonable doubt of two crimes
of homicide. He is sentenced to suffer (10) years and one (1) day of prision
mayor maximum, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal medium, as maximum, for each crime of homicide.
The appellant is ordered to pay the heirs of each of the victims, Reynaldo
Timbal and Jesus Bascon, the amounts of P50,000.00 as civil indemnity for
their deaths and P25,000.00 as temperate damages.

With costs de oficio.

SO ORDERED.
G.R. No. 157718

April 26, 2005

ALVIN
AMPLOYO
y
vs.
PEOPLE OF THE PHILIPPINES , Respondent.

EBALADA, Petitioner,

DECISION
CHICO-NAZARIO, J.:
This is a petition for review on certiorari assailing the Decision 1of the Court
of Appeals which affirmed the Decision 2of the Regional Trial Court of
Olongapo City , Branch 72, and its Resolution 3denying petitioner's motion for
reconsideration.
On 21 July 1997 , petitioner was charged with violation of Section 5(b),
Article III of Republic Act No. 7610, in an Information worded as follows:
That on or about the 27th day of June, 1997, and on dates prior thereto, at
Brgy. Calapandayan, in the Municipality of Subic, Province of Zambales,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with lewd design, and by means of force, intimidation and threats,
did then and there willfully, unlawfully and feloniously, commit acts of
lascivious conduct with one Kristine Joy Mosquera, a minor of eight (8) years
old, by then and there touching, mashing and playing her breast, against her
will and consent, to the damage and prejudice of the latter. 4
Upon arraignment, petitioner pleaded 'NOT GUILTY. Trial on the merits ensued
thereafter. The prosecution presented as witnesses (1) the complainant
herself, Kristine Joy Mosquera; (2) complainant's mother, Gnelida Gallardo
Mosquera; and (3) Department of Social Welfare and Development (DSWD)
psychologist Lucrecia Cruz. Petitioner, on the other hand, waived his right to
present evidence 5after his demurrer to evidence 6was denied by the trial
court. 7
The facts, as appreciated by the trial court, are as follows:

Kristine Joy Mosquera was eight years old on 27 June 1997 , 8having
celebrated her eighth year the day before. A grade III student, she was
walking to school (which was just a short distance from her house) at around
seven oclock in the morning when she was met by petitioner who emerged
from hiding from a nearby store. Petitioner and Kristine Joy were neighbors.
Petitioner approached Kristine Joy, touched her head, placed his hand on her
shoulder where it then moved down to touch her breast several times.
Petitioner thereafter told Kristine Joy not to report to anybody what he did to
her.
This was not the first time that the incident happened as petitioner had done
this several times in the past, even when Kristine Joy was still in Grade II.
However, it was only during this last incident that Kristine Joy finally told
somebody ' her grandmother, who immediately talked to Gnelida Mosquera,
Kristine Joy's mother.
Mrs. Mosquera conferred with Kristine Joy who said that petitioner would
sometimes even insert his hand under her shirt to caress her breast. Mother
and child then reported the matter to the barangay. From the barangay, the
case was referred to the DSWD then to the Police Department of Subic,
Zambales.
On 07 November 1997, Kristine Joy was seen by a psychologist, witness
Lucrecia Cruz, who reported that Kristine Joy was a victim of sexual abuse
and was showing unusual behavior as a result thereof. Among other things,
Ms. Cruz detected in the eight-year old child feelings of insecurity, anger,
anxiety and depression. Guilt feelings were also noted. All in all, Kristine Joy
appeared on the surface to be a child with normal behavior despite the
experience, but on a deeper level, she developed a fear of going to school as
petitioner might again be hiding in the store waiting for her. She was deeply
bothered during the interview and even uttered ' Nahihiya ako sa mga
magulang ko at uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi.
Kristine Joy continued going to school, but this time accompanied always by
an adult relative.
On 22 September 1999 , the trial court rendered its decision, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing considerations, the Court finds the
accused Alvin Amployo GUILTY beyond reasonable doubt of the crime of Child

Abuse defined under Section 5 (b) of Republic Act 7610 and hereby
sentences him to Reclusion Temporal in its medium period or FOURTEEN (14)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY TO SEVENTEEN (17) YEARS and
to pay the costs. 9
The Court of Appeals, as adverted to earlier, affirmed the Decision of the trial
court by dismissing petitioner's appeal for lack of merit. Upon motion for
reconsideration, however, the Court of Appeals modified its ruling relative to
the penalty imposed, thus:
WHEREFORE, the motion for reconsideration is DENIED. However, the penalty
is MODIFIED such that accused-appellant is sentenced to imprisonment of
twelve (12) years and one (1) day of reclusion temporal, as minimum, to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal,
as maximum. 10
Hence, the instant petition, the following issues having been presented for
resolution:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
CONVICTING HEREIN PETITIONER OF ACTS OF LASCIVIOUSNESS IN
RELATION TO SEC. (5) ARTICLE III OF RA NO. 7610 DESPITE THAT THE
FACTUAL MILIEU NEGATES THE SAME
II.
WHETHER THE ALLEGED ACT OF HEREIN PETITIONER CONSTITUTES
ACTS OF LASCIVIOUSNESS AS PENALIZED UNDER SEC (5) ARTICLE III
OF RA NO. 7610
The first issue basically questions the sufficiency of the evidence adduced to
prove acts of lasciviousness under Article 336 of the Revised Penal Code
(RPC). According to petitioner, the prosecution failed to prove beyond
reasonable doubt all the elements of said crime, particularly the element of
lewd design.
On the second issue, petitioner contends that even assuming that the acts
imputed to him amount to lascivious conduct, the resultant crime is only acts
of lasciviousness under Article 336 of the RPC and not child abuse under

Section 5(b) of Rep. Act No. 7610 as the elements thereof have not been
proved.
Rep. Act No. 7610, the 'Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act, defines sexual abuse of children and
prescribes the penalty therefor in its Article III, Section 5:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male
or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium
perpetua shall be imposed upon the following;

period

to reclusion

(a) . . .
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve
(12) years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape
or lascivious conduct as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; . . .
Thus, pursuant to the foregoing provision, before an accused can be
convicted of child abuse through lascivious conduct on a minor below 12
years of age, the requisites for acts of lasciviousness under Article 336 of the
RPC must be met in addition to the requisites for sexual abuse under Section
5 of Rep. Act No. 7610.
First Issue:
Article 336 of the RPC on Acts of Lasciviousness has for its elements the
following:
(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.

11

The presence of the second element is not in dispute, that is, Kristine Joy was
below 12 years old on the material date set in the information. It is the
presence of the first element which petitioner challenges, claiming that lewd
design has not been proved beyond reasonable doubt.
The term 'lewd is commonly defined as something indecent or obscene; 12it is
characterized by or intended to excite crude sexual desire. 13That an accused
is entertaining a lewd or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out such
intention, i.e., by conduct that can only be interpreted as lewd or lascivious.
The presence or absence of lewd designs is inferred from the nature of the
acts themselves and the environmental circumstances. 14What is or what is
not lewd conduct, by its very nature, cannot be pigeonholed into a precise
definition. As early as U.S. v. Gomez 15we had already lamented that '
It would be somewhat difficult to lay down any rule specifically establishing
just what conduct makes one amenable to the provisions of article 439 16of
the Penal Code. What constitutes lewd or lascivious conduct must be
determined from the circumstances of each case. It may be quite easy to
determine in a particular case that certain acts are lewd and lascivious, and
it may be extremely difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous advances of an
ardent lover.
In herein case, petitioner argues that lewd design cannot be inferred from his
conduct firstly because the alleged act occurred at around seven oclock in
the morning, in a street very near the school where people abound, thus, he
could not have been prompted by lewd design as his hand merely slipped
and accidentally touched Kristine Joy's breast. Furthermore, he could not
have been motivated by lewd design as the breast of an eight year old is still

very much undeveloped, which means to say there was nothing to entice
him in the first place. Finally, assuming that he indeed intentionally touch
Kristine Joy's breast, it was merely to satisfy a silly whim following a Court of
Appeals ruling. 17
Petitioner's arguments crumble under the weight of overwhelming evidence
against him. Well-settled is the rule that factual findings of the trial court,
particularly when affirmed by the Court of Appeals, are binding on this Court
barring arbitrariness and oversight of some fact or circumstance of weight
and substance 18for which there are none in this case. Besides, Kristine Joy's
testimony is indeed worthy of full faith and credence as there is no proof that
she was motivated to falsely accuse petitioner. Thus, we stress anew that no
young and decent girl like Kristine Joy would fabricate a story of sexual
abuse, subject herself to medical examination and undergo public trial, with
concomitant ridicule and humiliation, if she is not impelled by a sincere
desire to put behind bars the person who assaulted her. 19
Clearly then, petitioner cannot take refuge in his version of the story as he
has conveniently left out details which indubitably prove the presence of
lewd design. It would have been easy to entertain the possibility that what
happened was merely an accident if it only happened once. Such is not the
case, however, as the very same petitioner did the very same act to the very
same victim in the past. 20Moreover, the incident could never be labeled as
accidental as petitioner's hand did not just slip from Kristine Joy's shoulder to
her breast as there were times when he would touch her breast from under
her shirt. 21Finally, the theory that what happened was accidental is belied by
petitioner having threatened Kristine Joy to keep silent and not tell on him. 22
As to petitioner's argument that human experience negates the presence of
lewd design as Kristine Joy had no developed breasts with which to entice
him, suffice it to say that on the contrary, human experience has taught us
painfully well that sexual misconduct defies categorization and what might
be an unusual, unlikely or impossible sexual conduct for most might very
well be the norm for some.
Finally, we dismiss for being atrocious the proposition that petitioner was not
compelled by lewd design as he was merely satisfying a 'silly whim. Terrifying
an eight-year old school girl, taking advantage of her tender age with his
sheer size, invading her privacy and intimidating her into silence, in our
book, can never be in satisfaction of a mere silly whim.

Second Issue:
Petitioner contends that assuming he is guilty of lascivious conduct, still he
can only be convicted under the RPC since his conduct does not amount to
sexual abuse as defined under Section 5(b), Article III of Rep. Act No. 7610.
The elements of sexual abuse under Section 5, Article III of Rep. Act No. 7610
that must be proven in addition to the elements of acts of lasciviousness are
the following:
(1) The accused commits the act of sexual intercourse or lascivious
conduct;
(2) The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.

23

The first element obtains. Section 32, Article XIII of the Implementing Rules
and Regulations of Rep. Act No. 7610 defines lascivious conduct as follows:
(T)he intentional touching, either directly or through clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth of any person,
whether of the same or opposite sex, with an intent to abuse, humiliate,
harass, degrade or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or pubic area of
a person. (Emphasis supplied)
Undoubtedly, based on the foregoing definition, petitioner's act of purposely
touching Kristine Joy's breasts (sometimes under her shirt) amounts to
lascivious conduct.
The second element is likewise present. As we observed in People v.
Larin, 24Section 5 of Rep. Act No. 7610 does not merely cover a situation of a
child being abused for profit, but also one in which a child engages in any
lascivious conduct through coercion or intimidation. As case law has it,
intimidation need not necessarily be irresistible. 25It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free exercise of
the will of the offended party. 26This is especially true in the case of young,
innocent and immature girls who could not be expected to act with

equanimity of disposition and with nerves of steel. 27Young girls cannot be

expected to act like adults under the same circumstances or to have the
courage and intelligence to disregard the threat. 281wphi1
In this case, it is not hard to imagine eight-year old Kristine Joy being
intimidated by her neighbor, a full grown adult male, who constantly
accosted her while she was alone and on her way to school and who
consistently ordered her not to report what he had been doing to her. That
this child was cowed into silence and submission and was traumatized in the
process is reflected in the psychological report 29made by the DSWD
psychologist, Lucrecia Cruz, the latter stating that:
BEHAVIOR OBSERVATION:
Subject appeared kemp, fair complexion, attractive, wearing white T-shirt
and maong short pants. She [was] observed to be cooperative, attentive and
expressive.
In an interview, subject disclosed that since she was in Grade II a certain
Alvin Amployo a.k.a. Tikboy who (sic) sexually molested her. She narrated
that her private part was fondled for many times. The incident happened
every time she went to school in the morning, noontime and in the
afternoon. The abuser hide (sic) along the store way to school. Then she was
threatened not to reveal to anybody especially to her parents.
TEST RESULT AND INTERPRETATION:
Test result revealed that subject manifest anger as she quoted 'gusto ko
makulong si Tikboy ng matagal. Indicate strong fear, anxiety, poor
concentration, nightmare, shame and auditory hallucination. Implies low selfesteem as she quoted ' madumi na ang sarili ko, nahihiya ako sa magulang
ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi.
Indicate that subject disturbed towards past as she quoted ' ang masidhing
ala-ala ng aking kamusmusan ay yong panghihipo ni Tikboy. Thus, subject
aiming that Tikboy be put to jail.
CASE SUMMARY AND RECOMMENDATION:
In summary, Kristine Joy Mosquera is a victim of sexual molestation
committed by a certain Alvin Amployo or Tikboy. Subject was greatly affected

psychologically and emotionally. Thus, subject manifest from (sic) anger,

anxiety, poor concentration, nightmare, shame, auditory hallucination and
low self-esteem. She is deeply depressed and suffer from traumatic
sexualization. From psychotherapeutic point of view subject needs constant
counseling to overcome her presented (sic) crisis. To assist the subject to
ventilate her ambivalent feeling. To restore moral values, improve her selfesteem and enhance her emotional and social functioning.
As to the third element, there is no dispute that Kristine Joy is a minor, as she
was only eight years old at the time of the incident in question.
Finally, we note that no award for moral damages was made by both the trial
court and the Court of Appeals despite the fact that the mental anguish
suffered by Kristine Joy on account of her harrowing experience is spread all
over the records of the case and has been well documented by the
psychologist who examined her as reflected in her report quoted above. At
the risk of being repetitive, proof of Kristine Joy's mental anguish, wounded
feelings and social humiliation finds an express outlet in her words:
' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka
tuksuhin akong bobo na hindi ko agad sinabi and ' ang masidhing ala-ala ng
aking kamusmusan ay yong panghihipo ni Tikboy. We therefore modify the
ruling of the Court of Appeals by awarding moral damages to Kristine Joy in
the amount of Twenty Thousand Pesos (P20,000.00) pursuant to Article 2219
of the Civil Code. 30
Additionally, we find relevant to discuss here the case of People v.
Solmoro 31wherein we declared that upon a finding of guilt of the accused for
acts of lasciviousness, the amount of P30,000.00 as moral damages may be
further awarded to the victim in the same way that moral damages are
awarded to victims of rape even without need of proof because it is assumed
that they suffered moral injury. Considering that the crime of acts of
lasciviousness or abusos dishonestos is necessarily included in rape 32and
both cases involve sexual assault albeit in different degrees, the rationale for
foregoing with proof of moral damages in rape cases applies with equal force
to crimes of acts of lasciviousness, the rationale being:
One other cognate development in the case law on rape is applicable to the
present disposition. The Court has also resolved that in crimes of rape, such
as that under consideration, moral damages may additionally be awarded to
the victim in the criminal proceeding, in such amount as the Court deems

just, without the need for pleading or proof of the basis thereof as has
heretofore been the practice. Indeed, the conventional requirement
of allegata et probate in civil procedure and for essentially civil cases should
be dispensed with in criminal prosecutions for rape with the civil aspect
included therein, since no appropriate pleadings are filed wherein such
allegations can be made.
Corollarily, the fact that complainant has suffered the trauma of mental,
physical and psychological sufferings which constitute the bases for moral
damages are too obvious to still require the recital thereof at the trial by the
victim, since the Court itself even assumes and acknowledges such agony on
her part as a gauge of her credibility. What exists by necessary implication as
being ineludibly present in the case need not go through the superfluity of
still being proved through a testimonial charade. 33
It does not end there. In People v. Abadies, 34and with respect specifically to
lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act
No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct
in addition to the award of moral damages on the justification that '
It will be noted that Section 5, Article II of Republic Act No. 7610 provides for
the penalty of imprisonment. Nevertheless, Section 31(f), Article XII
(Common Penal Provisions) thereof allows the imposition of a fine subject to
the discretion of the court, provided that the same is to be administered as a
cash fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of each child victim, or any immediate
member of his family if the latter is the perpetrator of the offense. This
provision is in accord with Article 39 of the Convention on the Rights of the
Child, to which the Philippines became a party on August 21, 1990, which
stresses the duty of states parties to ensure the physical and psychological
recovery and social reintegration of abused and exploited children in an
environment which fosters their self-respect and human dignity.
With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand
Pesos (P15,000.00) on petitioner.
WHEREFORE, premises considered, the Resolution of the Court of Appeals
modifying the Decision of the Regional Trial Court of Olongapo City, Branch
72, finding accused-petitioner ALVIN AMPLOYO y EBALADA alias 'TIKBOY
guilty beyond reasonable doubt of violation of Republic Act No. 7610, and
sentencing him to suffer the penalty of twelve (12) years and one (1) day

of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal, as maximum is AFFIRMED with the
MODIFICATION that petitioner is hereby ordered to pay a fine of Fifteen
Thousand Pesos (P15,000.00) and moral damages in the amount of Twenty
Thousand Pesos (P20,000.00). No costs.
SO ORDERED.
G.R. No. 172695

June 29, 2007

PEOPLE
OF
THE
vs.
ISAIAS CASTILLO y COMPLETO, Appellant.

PHILIPPINES, Appellee,

DECISION
YNARES-SANTIAGO, J.:
In an Information1 dated January 19, 1994, appellant Isaias Castillo y
Completo was charged with the crime of parricide, committed as follows:
That on or about November 5, 1993, in the Municipality of Cabuyao, Province
of Laguna and within the jurisdiction of this Honorable Court, accused Isaias
Castillo y Completo, while conveniently armed with illegally possessed sling
and deadly arrow, with intent to kill his wife Consorcia Antiporta with whom
he was united in lawful wedlock did then and there wilfully, unlawfully and
feloniously shot and hit his wife Consorcia Antiporta with the aforesaid
deadly arrow, hitting the latter on the right side of her neck causing the
laceration of the jugular vein which caused her instantaneous death.
CONTRARY TO LAW.2
The case was docketed as Criminal Case No. 8590-B and raffled to Branch 24
of the Regional Trial Court of Bian, Laguna.
Appellant entered a plea of not guilty when arraigned on April 15, 1994. Trial
thereafter ensued.
The facts as found by the trial court are as follows:

There is no dispute that the victim, Consorcia Antiporta Castillo, died

violently in the evening of November 5, 1993. The cause of her death was
massive hemorrhage due to "laceration of the jugular vein of her neck".
According to Dr. Solita P. Plastina, Municipal Health Officer of Calamba,
Laguna, who conducted the autopsy on the victims body, the fatal weapon
could have been a "pointed instrument like a nail". There is no dispute
likewise that the accused shot with a dart from a rubber sling, his wife hitting
her at the neck and causing her instantaneous death. The letters written by
the accused from his detention cell addressed to his mother-in-law, to his
father-in-law, and lastly, the victims sister, speak so eloquently of someone
who accepts the fault for the early demise of the victim. Asking forgiveness
from the close relatives of the victim is a clear admission of authorship of the
fatal act.
In the same letters, the accused raised as an issue his lack of intent to do the
fatal harm to his wife. This is the same issue to be resolved by this Court.
Whether or not the fatal injury sustained by the victim was accidental.
xxxx
Guillermo Antiporta, father of the victim, narrated in Court that in the
evening of November 5, 1993, between 9:00 oclock to 10:00 oclock, the
accused came home drunk and was in an angry mood. The accused kicked
the door and table, and then threw the electric fan away. He was prevailed
upon by Guillermo to take a rest. But the accused did not heed the advice of
Guillermo as he took instead his sling and arrow from the house ceiling
where he was keeping them. Dejectedly, Guillermo transferred to the
adjacent house of her x x x daughter [in-law] Yolanda. From there, Guillermo
heard the victim crying and, afterwards, shouting at the accused. Guillermo
concernedly ordered Yolanda to see what was happening inside the house of
Consorcia, and Yolanda obeyed. On her way, Yolanda met the accused
carrying the bloodied body of Consorcia. Guillermo, the accused, and Yolanda
brought Consorcia to the hospital but to no avail.
From all the circumstances gathered, the infliction of the fatal injury upon
Consorcia was preceded by a quarrel between her and the accused. This spat
negated the accuseds version that he was practicing the use of the weapon
when Consorcia was hit by the arrow, and lends credence to the
prosecutions contention that the shooting was intentional.

x x x To sustain the accuseds assertion that he was practicing the use of

said weapon at the time of the incident is patently absurd. The defense even
failed to rebut Guillermo Antiportas testimony that the accused was keeping
said sling and arrow inside his house.
It might be true that the accused was one of those who rushed the victim to
the hospital and while on the way, he sounded remorseful. But Guillermo
Antiporta further testified that while the victim was being attended to by the
medical personnel of said hospital, the accused stayed outside the hospital
premises, then he disappeared. He was later on apprehended by police
authorities while hiding inside the comfort room of a premises in an adjoining
barangay. The accuseds omission to surrender himself to the authorities is a
clear indication of guilt.3
After several hearings, the trial court rendered on October 5, 1998, a
decision,4 the dispositive portion of which reads:
WHEREFORE, this Court hereby finds accused ISAIAS CASTILLO Y COMPLETO
GUILTY beyond reasonable doubt of the crime of PARRICIDE and hereby
sentences him to a penalty of RECLUSION PERPETUA and to indemnify the
heirs of the victim in the sum of P50,000.00, as moral damages.
SO ORDERED.5
Appellant filed an appeal with the Court of Appeals, alleging that the
prosecution failed to sufficiently establish his guilt beyond reasonable doubt.
However, in a Decision6 dated February 28, 2005, the Court of Appeals
denied appellants appeal and affirmed with modification the decision of the
trial court, to wit:
WHEREFORE, premises considered, the decision dated October 5, 1998 of the
Regional Trial Court, Branch 24 of Bian, Laguna is hereby AFFIRMED with the
modification that accused-appellant Isaias Castillo y Completo is further
ordered to indemnify the heirs of the victim the amount of P50,000.00 as
civil indemnity.
SO ORDERED.7
Appellant filed a motion for reconsideration but it was denied in a Resolution
dated June 16, 2005.

Hence, this appeal.

Appellant alleged that the pieces of circumstantial evidence on which his
conviction was based did not sufficiently establish his guilt beyond
reasonable doubt; that the prosecution failed to prove his motive in killing his
wife; or that they had a quarrel immediately prior to the incident.
Appellant likewise claimed that it was not established that he was the one
who shot his wife with a deadly arrow considering that at the time of the
incident, he and his drinking buddies were all engaged in target shooting
using the sling and arrow. Hence, he surmised that any one of them could
have shot the victim. At any rate, even assuming that he was the one who
killed his wife, the same was accidental and not intentional.
Furthermore, he claimed that his presence at the crime scene did not
establish his guilt beyond reasonable doubt. His arrest while hiding inside a
toilet in the adjoining barangay, while his wife was being treated in the
hospital, likewise does not prove his complicity since the prosecution did not
prove that he deliberately hid inside the toilet.
Finally, the letters he sent to his father-in-law, mother-in-law and sister-in-law
where he asked for forgiveness should not be considered as admission of
guilt.
The petition lacks merit.
Direct evidence of the commission of the offense is not the only matrix
wherefrom a trial court may draw its conclusions and finding of guilt.
Conviction can be had on the basis of circumstantial evidence provided that:
(1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
While no general rule can be laid down as to the quantity of circumstantial
evidence which will suffice in a given case, all the circumstances proved
must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with the hypothesis that
he is innocent, and with every other rational hypothesis except that of guilt.
The circumstances proved should constitute an unbroken chain which leads
to only one fair and reasonable conclusion that the accused, to the exclusion
of all others, is the guilty person. 8Proof beyond reasonable doubt does not
mean the degree of proof excluding the possibility of error and producing

absolute certainty. Only moral certainty or "that degree of proof which

produces conviction in an unprejudiced mind" is required.9
In the instant case, all the essential requisites for circumstantial evidence to
sustain a conviction, are present. As correctly found by the Court of Appeals,
the following pieces of circumstantial evidence indubitably established that
appellant was the perpetrator of the crime, to wit:
1. Consortia would often confide to her sister Leticia about the violent
behavior of her (Consortia) husband, herein accused-appellant. And even if
Consortia would not tell Leticia about the beatings, the latter would see her
face with black eyes as evident proofs of maltreatment.
2. On the night of the incident, accused-appellant arrived at their house
drunk and displaying violent behavior, kicking the door and table.
3. Accused-appellant was last seen holding and practicing his sling and
arrow.
4. Immediately afterwards, Consortia was heard crying and shouting.
5. Accused-appellant was thereafter seen carrying Consortia, bloodied and
unconscious, to be brought to the hospital where she later died.
6. The autopsy findings indicate that Consortia sustained a punctured wound
in the neck which fatally lacerated her jugular vein. The cause of the wound
was a pointed object.
7. While detained, accused-appellant wrote letters to the parents and sister
of Consortia asking for forgiveness.
Also notable is accused-appellants behavior immediately after the incident.
He disappeared and did not enter the clinic where Consortia was rushed for
treatment. And when Consortias sister later sought police assistance in
searching for accused-appellant, the latter was found by the police hiding
inside a toilet at a nearby barangay.10
There is no merit in appellants contention that the prosecution failed to
prove motive in killing his wife. Intent to kill and not motive is the essential
element of the offense on which his conviction rests. 11 Evidence to prove
intent to kill in crimes against persons may consist, inter alia, in the means

used by the malefactors, the nature, location and number of wounds

sustained by the victim, the conduct of the malefactors before, at the time,
or immediately after the killing of the victim, the circumstances under which
the crime was committed and the motives of the accused. If the victim dies
as a result of a deliberate act of the malefactors, intent to kill is presumed.12
In the instant case, the following circumstances satisfactorily established
appellants intent to kill his wife:
First: The killing was immediately preceded by a quarrel between the
appellant and his wife. Leticia, the victims sister, testified that the deceased
suffered from the violent behavior of the appellant who would often lay hand
on the victim during their marital squabbles.
Guillermo, appellants father-in-law, testified that on the night of the incident,
appellant arrived in their conjugal abode drunk and in a foul mood. He kicked
the door and table and threw away the electric fan. Guillermo tried to prevail
upon appellant but to no avail. Instead, appellant got his sling and arrow
which he kept near the ceiling.
Guillermo left appellants house and went to the house of his daughter-inlaw, Yolanda, located about four meters away; but he could still hear the
victim and appellant arguing and shouting at each other. After a while,
Guillermo requested Yolanda to look on her sister-in-law. On her way, Yolanda
met the appellant carrying Consorcia soaked in blood.
Second: It has always been said that criminal cases are primarily about
human nature.13 In the instant case, appellant disappeared after his wounded
wife was rushed to the hospital. This is indeed contrary to human nature. A
husband is expected to lend comfort to his dying wife up to her last breath.
In this case, however, appellant took flight. It is well-established that the
flight of an accused is competent evidence to indicate his guilt, and flight,
when unexplained, as in this case, is a circumstance from which an inference
of guilt may be drawn.14
Appellant alleged that his arrest by police authorities inside a toilet at the
adjoining barangay is not an indication of guilt because the prosecution
failed to prove that he deliberately hid in order to evade being arrested.15
The contention lacks merit.

As above-discussed, it is contrary to human nature for a husband to leave his

dying wife, more so if his absence is unexplained. Appellant did not offer any
explanation for his flight. In appellants brief, he claimed that in "all
probability, it might have happened that he (appellant) was merely
answering the call of nature at the precise time when he was
arrested."16 However, we find it is highly illogical for appellant to go as far as
the adjoining barangay to answer the call of nature especially since he could
do so inside the premises of the hospital. Moreover, the allegation that he
was fearful of reprisal coming from the victims relatives 17 is contrary to his
claim of innocence.
Third: The location of the wound and its extent likewise proved appellants
intent to kill the victim. The autopsy report revealed that the victim
sustained a punctured wound in the neck, a vital organ, which fatally
lacerated her jugular vein causing massive hemorrhage. The extent of the
physical injury inflicted on the deceased manifests appellants intention to
extinguish life.18
Fourth: As regards appellants act of carrying the body of his wounded wife
and bringing her to the hospital, the same does not manifest innocence. It is
merely an indication of an act of repentance or contrition on the part of
appellant.19
In fine, all these circumstances prove appellants intent to harm his wife.
There is likewise no merit in appellants contention that he was not the one
who shot the deadly arrow because at the time of the incident, he and his
drinking buddies were all playing and practicing target shooting with the use
of the sling and arrow.
Prosecution witness Guillermo Antiporta categorically testified that appellant
was alone with his wife inside their house when the incident happened. This
completely discounts the possibility that other than appellant, there could be
another person or persons who could have perpetrated the crime. There is
no paucity of evidence because the time when Guillermo left the appellant
and the victim up to the time Yolanda saw him carrying his wife, were all
accounted for. Moreover, the testimony of defense witness Galang supports
the prosecutions contention that appellant was alone with his wife at the
time of the incident. As noted by the Court of Appeals:

Defense witness, Jose Nelson Galang, testified that he left his drinking
buddies and headed home at about 9:00 p.m., as in fact he was already in
bed at about 10:00 p.m. when he saw that Consortia was being rushed to the
hospital. Instead of weakening the evidence for the prosecution, Galangs
testimony even supports the prosecutions version that between 9:00 p.m.
and 10:00 p.m. of that fateful night, accused-appellant arrived at their house
drunk, presumably going home from that drinking session with his friends. x
x x20
There is likewise no merit in appellants contention that assuming he was the
one who killed his wife, the same was accidental and not intentional. The
exempting circumstance of accident is not applicable in the instant case.
Article 12, par. 4 of the Revised Penal Code, provides:
ART. 12. Circumstances which exempt from criminal liability. The following
are exempt from criminal liability:
xxxx
4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.
"Accident" is an affirmative defense which the accused is burdened to prove,
with clear and convincing evidence.21 The defense miserably failed to
discharge its burden of proof. The essential requisites for this exempting
circumstance, are:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.22
By no stretch of imagination could playing with or using a deadly sling and
arrow be considered as performing a "lawful act." Thus, on this ground alone,
appellants defense of accident must be struck down because he was
performing an unlawful act during the incident. As correctly found by the trial
court:

Furthermore, mere possession of sling and arrow is punishable under the law.
In penalizing the act, the legislator took into consideration that the deadly
weapon was used for no legal purpose, but to inflict injury, mostly fatal, upon
other persons. Let it be stressed that this crude weapon can not attain the
standards as an instrument for archery competitions. To sustain the
accuseds assertion that he was practicing the use of said weapon at the
time of the incident is patently absurd. The defense even failed to rebut
Guillermo Antiportas testimony that the accused was keeping said sling and
arrow inside his house.23
Furthermore, by claiming that the killing was by accident, appellant has the
burden of proof of establishing the presence of any circumstance which may
relieve him of responsibility, and to prove justification he must rely on the
strength of his own evidence and not on the weakness of the prosecution, for
even if this be weak, it can not be disbelieved after the accused has
admitted the killing.24 Other than his claim that the killing was accidental,
appellant failed to adduce any evidence to prove the same.
Likewise, we cannot lend credence to appellants contention that the letters
he wrote to his parents-in-law and sister-in-law, where he asked for
forgiveness, should not be considered as an implied admission of guilt. He
claimed that he wrote the letters in order to explain that what happened was
an accident and that he was to be blamed for it because he allowed his
drinking buddies to play with the sling and arrow.
Settled is the rule that in criminal cases, except those involving quasioffenses or those allowed by law to be settled through mutual concessions,
an offer of compromise by the accused may be received in evidence as an
implied admission of guilt. Evidently, no one would ask for forgiveness unless
he had committed some wrong and a plea for forgiveness may be considered
as analogous to an attempt to compromise.25 Under the present
circumstances, appellants plea for forgiveness should be received as an
implied admission of guilt. Besides, contrary to appellants assertion, the
killing of Consorcia was deliberate, and not by accident.
Finally, we find no cogent reason to review much less depart now from the
findings of the lower court as affirmed by the Court of Appeals. When the
trial courts factual findings have been affirmed by the appellate court, said
findings are generally conclusive and binding upon this Court, for it is not our
function to analyze and weigh the parties evidence all over again except

when there is serious ground to believe a possible miscarriage of justice

would thereby result. Our task in an appeal via certiorari is limited, as a
jurisdictional matter, to reviewing errors of law that might have been
committed by the Court of Appeals.26
Parricide under Article 246 of the Revised Penal Code is punishable by
reclusion perpetua to death. The trial court and the Court of Appeals
correctly imposed the penalty of reclusion perpetua. Likewise, civil indemnity
in the amount of P50,000.00 and moral damages in the amount
of P50,000.00 were properly awarded by the courts below.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
dated February 28, 2005 which affirmed with modification the judgment of
the Regional Trial Court of Bian, Laguna, Branch 24, finding appellant Isaias
Castillo y Completo guilty of parricide and sentencing him to suffer the
penalty of reclusion perpetua and ordering him to pay the heirs of his
victim P50,000.00 as moral damages and P50,000.00 as civil indemnity, is
AFFIRMED.
With costs.
SO ORDERED.
G.R. No. 186128

June 23, 2010

PEOPLE
OF
THE
PHILIPPINES, Plaintiff-Appellee,
vs.
SUSAN LATOSA y CHICO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
This is an appeal from the Decision 1 dated April 23, 2008 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02192 which affirmed the April 12, 2006
Decision2 of the Regional Trial Court (RTC) of Pasig City, Branch 159,
convicting appellant Susan Latosa y Chico of parricide.
Appellant was charged with parricide in an information3 which reads,

That, on or about the 5th of February 2002, in the Municipality of Taguig,

Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, being then the legitimate wife of one Felixberto
Latosa y Jaudalso, armed with and using an unlicensed gun, with intent to
kill, did then and there willfully, unlawfully and feloniously shoot her
husband, Felixberto Latosa y Jaudalso, hitting him on the head, thereby
causing the latter to sustain gunshot wound which directly caused his death.
CONTRARY TO LAW.
Upon arraignment on June 25, 2002, appellant, with the assistance of
counsel, pleaded not guilty. Trial thereafter ensued.
The prosecutions evidence established the following version:
On February 5, 2002, at around 2:00 in the afternoon, appellant and her
husband Major Felixberto Latosa, Sr. (Felixberto) together with two (2) of
their children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael),
were at their house in Fort Bonifacio. Felixberto, Sr. was then asleep 4 when
Sassymae saw appellant take Felixberto Sr.s gun from the cabinet and leave.
She asked her mother where she was going and if she could come along, but
appellant refused.5
Moments later, appellant returned and told Sassymae to buy ice cream at
the commissary. Appellant gave her money and asked her to leave. 6 After
Sassymae left, appellant instructed Michael to follow his sister, but he
refused as he was hungry. Appellant insisted and further told Michael not to
make any noise as his father was sleeping. Nevertheless, appellant went
back inside the house and turned up the volume of the television and the
radio to full.7 Shortly after that, she came out again and gave Michael some
money to buy food at the grocery.
Instead of buying food, Michael bought ice candy and returned to the
barracks located at the back of their house. Michael thereupon saw his friend
Mac-Mac Nisperos who told him that he saw appellant running away from
their house. Michael did not pay any attention to his friends comment, and
simply continued eating his ice candy. Moments later, a certain Sgt. Ramos
arrived and asked if something had happened in their house. Michael replied
in the negative then entered their house. At that point, he saw his father
lying on the bed with a hole in the left portion of his head and a gun at his
left hand.

Michael immediately went outside and informed Sgt. Ramos about what
happened. Sgt. Ramos told him that appellant had reported the shooting
incident to the Provost Marshall office. 8 Then, Sassymae arrived and saw her
father with a bullet wound on his head and a gun near his left hand.9
Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the
victim, also testified that sometime in December 2001, their father told him
and his siblings over dinner about a threat to their lives by a certain Efren
Sta. Inez.10
Appellant, testifying on her own behalf, on the other hand claimed that when
Felixberto, Sr. woke up, he asked her to get his service pistol from the
cabinet adjacent to their bed. As she was handing the pistol to him it
suddenly fired, hitting Felixberto, Sr. who was still lying down. Shocked, she
ran quickly to Felixberto, Sr.s office and asked for help.11 She also claimed
that when Felixberto, Sr. asked her for his gun, she was on her way out of the
house to follow her children who left for the market on an errand she had
earlier given Sassymae. She claimed that she wanted to drive for them
because it was hot. She ran after them but after a few minutes, when she
realized that she did not have with her the keys to their jeep, she went back
to their house. Felixberto, Sr. then asked again for his gun, and it was then
that it fired as she was handing it to him.12
Appellant further described herself as a good mother and a good provider for
their six (6) children whom she raised by herself while Felixberto, Sr. was in
Mindanao. She claimed that they testified against her because they were
manipulated by her brother-in-law, Francisco Latosa. 13 She denied that
Sassymae saw her holding a gun when she asked her to buy ice cream,
alleging that Michael and Sassymae saw her holding the gun only when she
placed it inside the cabinet before they proceeded to the hospital.14
Appellant also denied her childrens testimony15 that she was having an affair
with a certain Col. Efren Sta. Inez (Sta. Inez), a policeman. She claimed that
she first met Sta. Inez when her youngest brother was killed on June 6, 2001
by unidentified men. Sta. Inez was the one (1) who assisted her. She was
alone at that time since her husband informed her that he could not leave his
post in Mindanao for he had to rush some papers. She allegedly only saw
Sta. Inez twice but admitted that Sta. Inez went to the precinct when he
learned of the shooting incident. 16 She also denied that she was terminated
from her job at the Philippine Public Safety College due to immorality for

having said affair. She claimed that she was terminated because she had
incurred numerous absences from her work as she grieved the death of her
youngest brother and had lost interest in her work after his death.17
The RTC found appellant guilty beyond reasonable doubt for killing her
husband Felixberto, Sr. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds the accused SUSAN
LATOSA Y CHICO "GUILTY" beyond reasonable doubt of the crime of parricide
under Art. 246 of the Revised Penal Code as amended by RA 7659 in rel. to
Sec. 1[,] 3rd par. PD 1866 as amended by RA 8294 and Sec. 5, RA 8294 and
hereby sentences the said accused to suffer the penalty of reclusion
perpetua and to further indemnify the victim the amount of P50,000 as civil
indemnity[,] P50,000 as moral damages and P25,000 as exemplary
damages.
SO ORDERED.18
The RTC held that the claim of accidental shooting was inconsistent with the
evidence considering the location of the gunshot wound, which was at the
left temple of Felixberto, Sr., and the fact that the gun was found near
Felixberto, Sr.s left hand despite his being right-handed. The trial court
found that appellant planned the killing by asking her two (2) children to
leave the house and, after the shooting, placing the gun near the victims left
hand to suggest that the death was suicide. But appellant overlooked the
fact that Felixberto, Sr. was right-handed. The trial court noted that despite
the grueling cross-examination of the defense counsel, the Latosa children
never wavered in their testimonies about what they knew regarding the
circumstances surrounding the shooting incident. Their testimonies bore the
hallmarks of truth as they were consistent on material points. The RTC found
it inconceivable that the children would testify against their own mother or
concoct a story of parricide unless they were impelled by their passion to
condemn an injustice done to their father.19
The RTC, in finding appellant guilty, considered the following circumstantial
evidence established by the prosecution: (1) shortly before the shooting,
appellant asked her two (2) children to do errands for her which were not
usually asked of them; (2) at the time of the shooting, only the appellant and
Felixberto, Sr. were in the house; (3) appellant was seen running away from
the house immediately after the shooting; (4) when Michael went inside their
house, he found his father with a hole in the head and a gun in his left hand;

(5) the medico-legal report showed that the cause of death was intracranial
hemorrhage due to the gunshot wound on the head with the point of entry at
the left temporal region; (6) the Firearms Identification Report concluded that
appellant fired two (2) shots; (7) Felixberto, Sr. was right-handed and the gun
was found near his left hand; (8) Sassymae testified that she heard Sta. Inez
tell appellant "bakit mo inamin. Sana pinahawak mo kay Major iyong baril
saka mo pinutok"; (9) appellants children testified that they were informed
by Felixberto, Sr. regarding the threat of appellants paramour, Sta. Inez, to
the whole family; and (10) Francisco Latosa presented a memorandum
showing that appellant was terminated from her teaching job by reason of
immorality.20
On appeal, the CA upheld the decision of the RTC. The CA held that since
appellant admitted having killed her husband albeit allegedly by accident,
she has the burden of proving the presence of the exempting circumstance
of accident to relieve herself of criminal responsibility. She must rely on the
strength of her own evidence and not on the weakness of the prosecution,
for even if this be weak, it cannot be disbelieved after the appellant has
admitted the killing.21
The CA, however, found appellants version of accidental shooting not
credible. Citing the case of People v. Reyes,22 the CA held that appellants
claim of accidental shooting was negated by the following facts: (1) a
revolver is not prone to accidental firing as pressure on the trigger is
necessary to make the gun fire, cocked or uncocked; and (2) when handing a
gun to a person, the barrel or muzzle is never pointed to that person. In this
case, appellant held the gun in one (1) hand and extended it towards her
husband who was still lying in bed. Assuming that appellant was not aware of
the basic firearm safety rule that the firearms muzzle is never pointed to a
person, she failed to explain why the gun would accidentally fire, when it
should not have fired unless there was pressure on the trigger. The location
of Felixberto, Sr.s wound also showed that the shooting was not accidental.
Appellant did not dispute that Felixberto, Sr. was lying down during the
shooting and that after the incident, the gun was found near his left hand.
The CA found that it was contrary to human nature that a newly awakened
military man would suddenly ask his wife, who was busy doing other things,
to bring his firearm, and patiently wait for her to come back to their house,
when the gun was just inside an adjacent cabinet only two (2) meters away
from his bed.23

The dispositive portion of the CA decision reads as follows:

WHEREFORE, premises considered, the assailed decision of the Regional Trial
Court of Pasig City, Branch 159, in Criminal Case No. 122621-H finding
SUSAN LATOSA y CHICO guilty beyond reasonable doubt of the crime of
parricide under Article 246 of the Revised Penal Code and sentencing her to
suffer the penalty of reclusion perpetua and ordering her to pay the heirs of
Felixberto Latosa the amount of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as exemplary damages is AFFIRMED.
SO ORDERED.24
Undaunted, appellant filed a Notice of Appeal on May 12, 2008.25
Appellant argues that the circumstantial evidence presented by the
prosecution was insufficient to prove that she intentionally killed her
husband. She insists that the gun fired accidentally while she was giving it to
Felixberto, Sr. Since she had no experience in handling firearms, she was not
able to foresee that it would fire accidentally and hit her husband. After her
husband was hit, she immediately rushed to his office and asked for
assistance.26
The only issue the Court has to resolve in this case is whether the exempting
circumstance of accident was established by appellant.
The basis of appellants defense of accidental shooting is Article 12,
paragraph 4 of the Revised Penal Code, as amended, which provides:
ART. 12. Circumstances which exempt from criminal liability. The following
are exempt from criminal liability:
xxxx
4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.
Thus, it was incumbent upon appellant to prove with clear and convincing
evidence, the following essential requisites for the exempting circumstance
of accident, to wit:
1. She was performing a lawful act;

2. With due care;

3. She caused the injury to her husband by mere accident;
4. Without fault or intention of causing it.27
To prove the circumstance she must rely on the strength of her own evidence
and not on the weakness of that of the prosecution, for even if this be weak,
it can not be disbelieved after the accused has admitted the killing. 28
However, by no stretch of imagination could the pointing of the gun towards
her husbands head and pulling the trigger be considered as performing a
lawful act with due care. As correctly found by the CA, which we quote in full:
Appellants version that she "accidentally shot" her husband is not credible.
Appellants manner of carrying the caliber .45 pistol negates her claim of
"due care" in the performance of an act. The location of the wound sustained
by the victim shows that the shooting was not merely accidental. The victim
was lying down and the fact that the gun was found near his left hand was
not directly disputed by her. We find it contrary to human nature that a newly
awakened military man would suddenly ask his wife for his firearm, and even
patiently wait for her return to the house, when the said firearm was just
inside the cabinet which, according to appellant, was just about two meters
away from his bed.
xxxx
In the case at bench, appellant held the gun in one hand and extended it
towards her husband who was still lying in bed. Assuming arguendo that
appellant has never learned how to fire a gun and was merely handing the
firearm over to the deceased, the muzzle is never pointed to a person, a
basic firearms safety rule which appellant is deemed to have already known
since she admitted, during trial, that she sometimes handed over the gun to
her husband. Assuming further that she was not aware of this basic rule, it
needed explaining why the gun would accidentally fire, when it should not,
unless there was pressure on the trigger.29
There is no merit in appellants contention that the prosecution failed to
prove by circumstantial evidence her motive in killing her husband. Intent to
kill and not motive is the essential element of the offense on which her
conviction rests. Evidence to prove intent to kill in crimes against persons

may consist, inter alia, in the means used by the malefactors, the nature,
location and number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing of the victim,
the circumstances under which the crime was committed and the motives of
the accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.30
In the instant case, the following circumstantial evidence considered by the
RTC and affirmed by the CA satisfactorily established appellants intent to kill
her husband and sustained her conviction for the crime, to wit:
The prosecution established the following circumstantial evidence:
(1) Susan Latosa, the accused, asked her twins to do errands for her.
She first asked Sassymae to go to Commissary to buy ice cream,
thereafter, she asked Michael to follow his sister at the Commissary
which according to the prosecution witnesses was not the usual thing
the accused would do;
(2) Thereafter, it was only the accused and the victim who were left
alone in the house;
(3) After the witness Michael, son of the accused and the victim left
and proceeded at the barracks located at the back of their house,
Susan Latosa was seen running away from the house by Michaels
friend named Macmac;
(4) Immediately thereafter, Michael Latosa went inside the room of
their barracks and saw his father with sort of a hole in the head, blood
on the nose and had a gun in his left hand (TSN, May 5, 2003, pp. 7-8,
12-13);
(5) The cause of death of the victim Felixberto Latosa was intracranial
hemorrhage due to gunshot wound of the head (per Medico-legal
Report No. M-052-2002, Exh. P);
(6) Susan Latosas paraffin test yielded positive result for the presence
of gunpowder nitrate in her right hand;
xxx

(8) The point of entry of the gunshot wound found on the victim was
located at the left temporal region as evidenced by Medico Legal
Report No. M-052-2002 (Exhibit P);
(9) The victim was a right-handed and the gun was found on the
latters left hand;
(10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell] her
mother, "bakit mo inamin. Sana pinahawak mo kay Major iyong baril
saka mo pinutok." (TSN, May 19, 2002, p. 13); and
(11) The children testified that they were informed by the victim
regarding the threat of Sta. Inez to the whole family who alleged[ly]
has an amorous relationship with their mother. Francisco Latosa
presented a memorandum that accused was terminated from her
teaching job by reason of immorality.311avvphi1
Moreover, the Court finds no cogent reason to review much less depart now
from the findings of the RTC as affirmed by the CA that appellants version is
undeserving of credence. It is doctrinally settled that the assessments of the
credibility of witnesses and their testimonies is a matter best undertaken by
the trial court, because of its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct and attitude under grilling
examination. These are the most significant factors in evaluating the
sincerity of witnesses and in unearthing the truth, especially in the face of
conflicting testimonies. Through its observations during the entire
proceedings, the trial court can be expected to determine, with reasonable
discretion, whose testimony to accept and which witness to believe. Verily,
findings of the trial court on such matters will not be disturbed on appeal
unless some facts or circumstances of weight have been overlooked,
misapprehended or misinterpreted so as to materially affect the disposition
of the case.32 We find none in this case.
One last note. On the matter of damages, the CA awarded exemplary
damages in the amount of P25,000.00. We increase the award to P30,000.00
in light of prevailing jurisprudence33 fixing the award of exemplary damages
to said amount.
WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The April
23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02192 is

hereby AFFIRMED with MODIFICATION. The amount of exemplary damages is

increased to P30,000.00.
With costs against the accused-appellant.
SO ORDERED.
PhilippineLaw.info Jurisprudence 1946 October
PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 77

G.R. No. L-64, People v. Moreno, 77 Phil. 548

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
October 28, 1946
G.R.
No.
L-64
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
MIGUEL M. MORENO, defendant-appellant.
Santiago
F.
Alidio
for
appellant.
First Assistant Solicitor General Reyes, Assistant Solicitor Caizares and
Solicitor Luciano for appellee.
FERIA, J.:
This is an appeal by the defendant Miguel M. Moreno from the judgment of
the Court of First Instance of Zamboanga, which found him guilty of the
crime charged with the aggravating circumstances of premeditation and
cruelty and without any mitigating circumstance, and sentenced the
defendant to death and to indemnify the heirs of the deceased.
The appellant was at the outbreak of the war a prisoner serving sentence in
the San Ramon Penal Colony Farm, situated in the City of Zamboanga.

During the Japanese occupation, he befriended and gained the confidence of

the Japanese naval authorities, was released from prison, and appointed
Captain of a semi-military organization known as Kaigun Jeutay, composed of
Filipinos and sponsored by the Japanese navy. On October 23, 1944, the
defendant was appointed by the Japanese naval authorities as section
commander of the San Ramon Penal Colony with plenary powers of
supervision and control over said colony and its environs.
On November 23, 1944, a group of defendant's soldiers went to the house of
Paciano de los Santos, and took with them two single young daughters of
said Paciano, and on the next day, when the deceased wet to San Ramon
Penal Colony, he was confined in a cell by order of the defendant.
On the night of December 1, 1944, defendant gathered all the prison officials
and employees of San Ramon Penal Colony in a meeting in the house of P.D.
Dellosa then Assistant Superintendent of the institution, and in that
gathering the accused arrogantly announced that he was not afraid to cut
the head of anybody, ordered all those present to witness the execution of
Paciano de los Santos the following day, and instructed Gregorio Magalit, a
prisoner employee of said institution to prepare the grave for said Paciano
and issue a formal memorandum to that effect. A photostatic copy of which
was presented as Exhibit D during the trial.
And in the morning of December 2, 1944, Paciano de los Santos was taken to
a place known as Fishery Division of the colony with both hands tied at the
back, and there the defendant ordered the victim Paciano to kneel down with
the head bent forward by the side of the grave already prepared for him by
order of the accused, and in that position the accused with a Japanese sabre
held in the handle by his both hands, hacked the head of Paciano de los
Santos, and immediately kicked the prostrate body of the victim into the
grave.
The facts above stated were established beyond a per-adventure of doubt by
the testimony of the witnesses for the prosecution, and are substantially
admitted by the defendant in his testimony during the trial. When the
defendant was asked whether he killed Paciano de los Santos in the form and
manner described by the witness for the prosecution, he answered the
following: "When I arrived at the place the deceased Paciano de los Santos
was already in the place where I was to execute him, and was taken there by

four Japanese and several guards of San Ramon, and on the way they have
instructed me how should I kill him, I did kill him in the form and manner
testified to by the witnesses for the prosecution." (Pp. 49, 50, t.s.n.)
The attorney de oficio appointed by this court for the defendant contends, in
the four assignments of error assigned in his brief, that the court below erred
(1) in trying the defendant in the same day on which he was arraigned and
pleaded not guilty, and not granting him two days to prepare for trial as
provided by law; (2) in trying and convicting the accused without a
preliminary investigation by the municipal judge or Fiscal of Zamboanga City;
(3) in not compelling, by process of subpoena, the attendance of witnesses in
behalf of the defendant, and finding, despite this failure, that the latter's
testimony was not corroborated by any witness; and (4) in finding the
accused guilty of murder with two aggravating circumstances and imposing
upon him the penalty of death.
(1) As to the first assigned error of the court below, it is true that, according
to section 7, Rule 114, the defendant after arraignment is entitled to at least
two days to prepare for trial, except when the case is on appeal from the
justice of the peace. But this court in several cases, among them, the case of
People vs. Cruz (54 Phil., 24, 28), has already construed said section and
held that the said right may be waived either expressly, or impliedly by not
asking for time to prepare for trial. In the present case, the defendant has
waived his right to have at least two days to prepare for trial, by submitting
himself and not objecting to the trial ordered by the court on the same day in
which he was arraigned. The decision of this court in the case of People vs.
Valte (43 Phil., 907), quoted by the attorney for the accused, does not
support his contention, for in the said case the defendant did not waive but
exercised his right by demanding that he be granted two days to prepare for
trial.
Besides, taking into consideration the fact that the defendant admitted
having killed the victim in the form and manner testified to by the witnesses
for the prosecution, and the only defense he alleged is that he was ordered
to do so by Japanese naval authorities; that the defendant had in fact been
given time to prepare for his defense, because before the trial had begun,
the said attorney, after a conference with the defendant, asked the court to
issue subpoena and subpoena duces tecum to Nicanor Punsala and Timoteo

Almonte, employees in San Ramon Penal Colony, and to Gregorio Magalit, a

detainee in the stockade of Zamboanga, and the subpoenas were issued and
served on the same date, August 6, upon them; and that after three of the
witnesses for the prosecution had testified, the trial was adjourned and
continued on August 7 and 8; it may be concluded that had there been any
error such an error is not a reversible one, for it did not impair the substantial
rights of the defendant.
(2) With respect to the second assignment of error, the record shows that the
defendant has waived his right to a preliminary investigation in a
communication called a motion of July 30, 1945, filed with the court, in which
the said defendant states that "he respectfully waives his right to a
preliminary investigation and request that this case be remanded to the
Court of First Instance of Zamboanga for final decision."
Section 1 and 7, Rule 108, of the Rules of Court use the words "preliminary
investigation," but a cursory reading thereof would clearly show that the
investigation mentioned therein is not the preliminary investigation proper in
which the defendant has the right to present his evidence. That is the reason
why said investigation made for the purpose of issuing the warrant of arrest
of a defendant if it appears that his arrest is justified, is defined by section 1
as "a previous inquiry or examination made before the arrest of the
defendant." Whether or not the warrant of arrest issued without a probable
cause, has nothing to do with the right of the defendant to a preliminary
investigation, and cannot be raised for the first time on appeal from a
judgment in which the defendant is found guilty of the offense charged
beyond a reasonable doubt and sentenced to death.
The preliminary investigation proper to which the defendant is entitled as
apart of the due process of law in those cases in which the statute provides
for it, is that established by section 11, of same Rule 108, and consist in the
right of the defendant, after his arrest, to "be informed of the complaint or
information filed against him . . . of the substance of the testimony and
evidence presented against him," and to be allowed "to testify or to present
witnesses or evidence in his favor." And the defendant has waived expressly
his right to that preliminary investigation, as above stated.
(3) In his third assignment of error, the attorney for the defendant states that
"the lower court erred in not compelling by process of subpoena the

attendance of witnesses in behalf of the appellant as provided by the

Philippine Constitution, and finding, despite this failure, that the testimony of
the appellant was corroborated by any witnesses."
This assignment of error is clearly without foundation; because the same
attorney admits in his brief that, the would be witnesses for the defense
Nicanor Punsalan, Timoteo Almonte and Gregorio Magalit were, upon petition
of his attorney in the court below, served on August 6 with subpoena and
subpoena duces tecum issued by the court, That "Nicanor Punsalan and
Timoteo Almonte were not examined or presented as witnesses in behalf of
the appellant," does not support the contention of dependant's attorney that
they have not been compelled by subpoena to appear in court as witnesses.
The presumption is that they had appeared in compliance with the
subpoena, there being nothing in the record to show the contrary, and that if
they had not been presented as such by the attorney for the defendant, it
was because their testimonies were not favorable to the latter; as evidenced
by the testimony of said Magalit, the other witness subpoenaed for the
defense, who was used by the prosecution as a rebuttal witness and testified
against the accused.
(4) The fourth or last assignment of error, is also without merit. Because the
defendant, testifying in his own behalf, admitted having killed Paciano de los
Santos on the date and in the form and manner testified to by the witnesses
for the prosecution, and the only defense that he executed or killed the
deceased in obedience to an order given him by Japanese officers of the
navy, by whom he was informed that the deceased was one of those who
were encountered by the Japanese in a mountain and wounded a Japanese
soldier, is not supported by any evidence in the record. And because
assuming that there was such an order, it would not justify the crime
committed by defendant and exempt him from criminal liability.
That there was no such order, oral or written, is clearly shown by the
defendant's own incredible, contradictory and unsupported testimony
relating to his having been ordered by the Japanese naval officer to kill the
deceased, which reads as follows:
P. declarando aqui los testigos de la acusacion todos dijeron de que ejecucion
de aquel Paciano de los Santos era por orden de Vd, es cierto eso?

C.A. No. 384

February 21, 1946

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS
JAURIGUE
and
AVELINA
JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose
Ma.
Recto
for
appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was
acquitted, but defendant Avelina Jaurigue was found guilty of homicide and
sentenced to an indeterminate penalty ranging from seven years, four
months and one day of prision mayorto thirteen years, nine months and
eleven days of reclusion temporal, with the accessory penalties provided by
law, to indemnify the heirs of the deceased, Amando Capina, in the sum of
P2,000, and to pay one-half of the costs. She was also credited with one-half
of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to
the Court of Appeals for Southern Luzon, and in her brief filed therein on June
10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had
acted in the legitimate defense of her honor and that she should be
completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to
commit so grave a wrong as that actually committed, and that (b) she
voluntarily surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the
alleged offense was attended by the aggravating circumstance of
having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased
Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of
Laguna; that for sometime prior to the stabbing of the deceased by
defendant and appellant, in the evening of September 20, 1942, the former
had been courting the latter in vain, and that on one occasion, about one
month before that fatal night, Amado Capina snatched a handkerchief
belonging to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she flatly refused,
and he thereupon suddenly embraced and kissed her and touched her
breasts, on account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept the matter to
herself, until the following morning when she informed her mother about it.
Since then, she armed herself with a long fan knife, whenever she went out,
evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she
was sleeping. He felt her forehead, evidently with the intention of abusing
her. She immediately screamed for help, which awakened her parents and
brought them to her side. Amado came out from where he had hidden under
a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father,
asking for forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that Amado
probably did not realize what he was doing. Nicolas Jaurigue sent for the
barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following
morning. Amado's parents came to the house of Nicolas Jaurigue and
apologized for the misconduct of their son; and as Nicolas Jaurigue was then
angry, he told them to end the conversation, as he might not be able to
control himself.
In the morning of September 20, 1942, Avelina received information that
Amado had been falsely boasting in the neighborhood of having taken
liberties with her person and that she had even asked him to elope with her
and that if he should not marry her, she would take poison; and that Avelina
again received information of Amado's bragging at about 5 o'clock in the
afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942,
Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which
he was the treasurer, in their barrio, just across the provincial road from his
house, to attend religious services, and sat on the front bench facing the
altar with the other officials of the organization and the barrio lieutenant,
Casimiro Lozada. Inside the chapel it was quite bright as there were electric
lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after
the arrival of her father, also for the purpose of attending religious services,
and sat on the bench next to the last one nearest the door. Amado Capina
was seated on the other side of the chapel. Upon observing the presence of
Avelina Jaurigue, Amado Capina went to the bench on which Avelina was
sitting and sat by her right side, and, without saying a word, Amado, with the
greatest of impudence, placed his hand on the upper part of her right thigh.
On observing this highly improper and offensive conduct of Amado Capina,
Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with
her right hand the fan knife marked Exhibit B, which she had in a pocket of
her dress, with the intention of punishing Amado's offending hand. Amado
seized Avelina's right hand, but she quickly grabbed the knife with her left
hand and stabbed Amado once at the base of the left side of the neck,
inflicting upon him a wound about 4 1/2 inches deep, which was necessarily
mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw
Amado bleeding and staggering towards the altar, and upon seeing his
daughter still holding the bloody knife, he approached her and asked: "Why
did you do that," and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes later. Barrio
lieutenant Casimiro Lozada, who was also in the same chapel, approached
Avelina and asked her why she did that, and Avelina surrendered herself,
saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take
care of me," or more correctly, "I place myself at your disposal." Fearing that
Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas
Jaurigue and herein defendant and appellant to go home immediately, to
close their doors and windows and not to admit anybody into the house,
unless accompanied by him. That father and daughter went home and locked
themselves up, following instructions of the barrio lieutenant, and waited for
the arrival of the municipal authorities; and when three policemen arrived in
their house, at about 10 o'clock that night, and questioned them about the
incident, defendant and appellant immediately surrendered the knife marked
as Exhibit B, and informed said policemen briefly of what had actually

happened in the chapel and of the previous acts and conduct of the
deceased, as already stated above, and went with said policemen to the
police headquarters, where her written statements were taken, and which
were presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however
humble they may be, is universal. It has been entertained and has existed in
all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that
a virtuous woman represents the only true nobility. And they are the future
wives and mothers of the land. Such are the reasons why, in the defense of
their honor, when brutally attacked, women are permitted to make use of all
reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women
freely go out unescorted and, like the beautiful roses in their public gardens,
they always receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property acquired
by us, and the right to honor which is not the least prized of our patrimony (1
Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to
put her in a state of legitimate defense, inasmuch as a woman's honor
cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds, nay
kills the offender, should be afforded exemption from criminal liability, since
such killing cannot be considered a crime from the moment it became the
only means left for her to protect her honor from so great an outrage (1
Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in
killing her aggressor, in the defense of her honor. Thus, where the deceased
grabbed the defendant in a dark night at about 9 o'clock, in an isolated
barrio trail, holding her firmly from behind, without warning and without
revealing his identity, and, in the struggle that followed, touched her private

parts, and that she was unable to free herself by means of her strength
alone, she was considered justified in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and which ended
in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16
Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting
wounds on her assailant with a bolo which she happened to be carrying at
the time, even though her cry for assistance might have been heard by
people nearby, when the deceased tried to assault her in a dark and isolated
place, while she was going from her house to a certain tienda, for the
purpose of making purchases (United States vs. Santa Ana and Ramos, 22
Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting
to abuse her, she asked who the intruder was and receiving no reply,
attacked and killed the said person with a pocket knife, it was held that,
notwithstanding the woman's belief in the supposed attempt, it was not
sufficient provocation or aggression to justify her completely in using deadly
weapon. Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a deadly
assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be
considered as an attempt against her honor (United States vs. Apego, 23
Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina,
when the latter climbed up her house late at night on September 15, 1942,
and surreptitiously entered her bedroom, undoubtedly for the purpose of
raping her, as indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in killing him, as
shown by the authorities cited above..
According to the facts established by the evidence and found by the learned
trial court in this case, when the deceased sat by the side of defendant and
appellant on the same bench, near the door of the barrio chapel and placed
his hand on the upper portion of her right thigh, without her consent, the
said chapel was lighted with electric lights, and there were already several

people, about ten of them, inside the chapel, including her own father and
the barrio lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her being
raped. And when she gave Amado Capina a thrust at the base of the left side
of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing
his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive; and under the facts and circumstances of
the case, she cannot be legally declared completely exempt from criminal
liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting
having stabbed the deceased, immediately after the incident, and agreed to
go to her house shortly thereafter and to remain there subject to the order of
the said barrio lieutenant, an agent of the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the further fact that she had acted in the
immediate vindication of a grave offense committed against her a few
moments before, and upon such provocation as to produce passion and
obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64
Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil.,
86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as
shown by the fact that she inflicted upon him only one single wound. And
this is another mitigating circumstance which should be considered in her
favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil.,
123).
The claim of the prosecution, sustained by the learned trial court, that the
offense was committed by the defendant and appellant, with the aggravating
circumstance that the killing was done in a place dedicated to religious
worship, cannot be legally sustained; as there is no evidence to show that
the defendant and appellant had murder in her heart when she entered the
chapel that fatal night. Avelina is not a criminal by nature. She happened to
kill under the greatest provocation. She is a God-fearing young woman,
typical of our country girls, who still possess the consolation of religious hope
in a world where so many others have hopelessly lost the faith of their elders
and now drifting away they know not where.

The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a certain
degree.
In the mind of the court, there is not the least doubt that, in stabbing to
death the deceased Amado Capina, in the manner and form and under the
circumstances above indicated, the defendant and appellant committed the
crime of homicide, with no aggravating circumstance whatsoever, but with at
least three mitigating circumstances of a qualified character to be considered
in her favor; and, in accordance with the provisions of article 69 of the
Revised Penal Code, she is entitled to a reduction by one or two degrees in
the penalty to be imposed upon her. And considering the circumstances of
the instant case, the defendant and appellant should be accorded the most
liberal consideration possible under the law (United States vs. Apego, 23
Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43
Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of
homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to
the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
known as the Indeterminate Sentence Law, herein defendant and appellant
should be sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate
penalty ranging from two months and one day of arresto mayor, as
minimum, to two years, four months, and one day ofprision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the
heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the principal
penalty, in case of insolvency, and to pay the costs. Defendant and appellant
should also be given the benefit of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered..
G.R. No. L-12883

November 26, 1917

THE
UNITED
vs.
CLEMENTE AMPAR, defendant-appellant.

STATES, plaintiff-appellee,

Filemon
A.
Cosio
Acting Attorney-General Paredes for appellee.

for

appellant.

MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San
Carlos, Province of Occidental Negros. Roast pig was being served. The
accused Clemente Ampar, a man of three score and ten, proceeded to the
kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer
was; "There is no more. Come here and I will make roast pig of you." The
effect of this on the accused as explained by him in his confession was, "Why
was he doing like that, I am not a child." With this as the provocation, a little
later while the said Modesto Patobo was squatting down, the accused came
up behind him and struck him on the head with an ax, causing death the
following day.
As the case turns entirely on the credibility of witnesses, we should of course
not interfere with the findings of the trial court. In ascertaining the penalty,
the court, naturally, took into consideration the qualifying circumstance of
alevosia. The court, however, gave the accused the benefit of a mitigating
circumstance which on cursory examination would not appear to be justified.
This mitigating circumstance was that the act was committed in the
immediate vindication of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to
whether this circumstance was rightly applied. That there was immediate
vindication of whatever one may term the remarks of Patobo to the accused
is admitted. Whether these remarks can properly be classed as "a grave
offense" is more uncertain. The Supreme court of Spain has held the words
"gato que araaba a todo el mundo," "landrones," and "era tonto, como toda
su familia" as not sufficient to justify a finding of this mitigating
circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.)
But the same court has held the words "tan landron eres tu como tu padre"
to be a grave offense. (Decision of October 22, 1894.) We consider that these
authorities hardly put the facts of the present case in the proper light. The
offense which the defendant was endeavoring to vindicate would to the
average person be considered as a mere trifle. But to this defendant, an old
man, it evidently was a serious matter to be made the butt of a joke in the
presence of so many guests. Hence, it is believed that the lower court very

properly gave defendant the benefit of a mitigating circumstance, and

correctly sentenced him to the minimum degree of the penalty provided for
the crime of murder. lawph!1.net
Judgment of the trial court sentencing the defendant and appellant to
seventeen years four months and one day of cadena temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased,
Modesto Patobo, in the amount of one thousand pesos, and to pay the costs
is affirmed, with the costs of this instance against the appellant. So ordered.
Arellano,
C.J.,
Johnson,
J.,
Street, J., did not sign.

Torres,
and
concurs

Araullo,
in

JJ.,
the

concur.
result.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y

SANGGINO, accused-appellant.
DECISION
QUISUMBING, J.:
In the amended decision[1] dated June 2, 1999, in Criminal Case No. 96CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8,
found appellant June Ignas y Sanggino guilty of murder aggravated
especially by the use of an unlicensed firearm. Appellant was initially
sentenced to suffer the penalty of reclusion perpetua,[2] but on motion for
reconsideration by the prosecution, the penalty was upgraded to death by
lethal injection.[3] Hence, the case is now before us for automatic review.
Appellant is an elementary school graduate. He resided at Cruz, La
Trinidad, Benguet, where he operated a bakery. [4] He is married to Wilma
Grace Ignas, by whom he has a son of minor age. [5] Wilma Grace used to be
the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.
[6]
Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
In the amended Information,[7] pursuant to Section 14, Rule 110 [8] of the
1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet
charged appellant as follows:

That on or about the 10th day of March 1996 at Trading Post, Km. 5,
Municipality of La Trinidad, Province of Benguet, Philippines, and within the
jurisdiction of this Honorable Court, without any authority of law or without
any lawful permit did then and there willfully, unlawfully and knowingly have
in his possession, control and custody a Cal. .38 hand gun and two (2)
ammunitions, (sic) which firearm and ammunitions were used by the accused
in unlawfully killing NEMESIO LOPATE at the above-mentioned place and date
in violation of the said law.
CONTRARY TO LAW.[9]
Appellant was arraigned and pleaded not guilty to the foregoing
amended information. The case then proceeded to be heard on the merits.
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace Ignas,
confided to her close friend, Romenda[10] Foyagao, that she was having an
affair with Nemesio Lopate.[11]
On the evening of October 16, 1995, Wilma Grace, Romenda, and
Nemesio went to Manila. Romenda and Nemesio were sending off Wilma
Grace at the Ninoy Aquino International Airport as she was leaving for Taiwan
to work as a domestic helper. Upon arrival in Manila, the trio checked at
Dangwa Inn, with Nemesio and Wilma Grace sharing a room. [12] All three of
them stayed at the inn until October 18, 1995, when Wilma Grace left for
Taiwan.[13]
Thereafter, Romenda received from Taiwan four letters written by Wilma
Grace on various dates. Although all the letters were addressed to Romenda,
two of them were meant by Wilma Grace to be read by her paramour,
Nemesio.[14] In the other two letters, Wilma Grace instructed Romenda to
reveal to appellant her affair with Nemesio.
It was only sometime late in February 1996 that Romenda, following her
bosom friends written instructions, informed appellant about the extramarital
affair between Wilma Grace and Nemesio. Romenda informed him that the
two had spent a day and a night together in a room at Dangwa Inn in Manila.
[15]
Appellant became furious. He declared Addan to aldaw na dayta nga
Nemesio, patayek dayta nga Nemesio (There will be a day for that Nemesio. I

will kill that Nemesio).[16] Appellant then got all the letters of Wilma Grace
from Romenda.[17]
That same week Alfred Mayamnes, appellants neighbor who was
presented at the trial as a prosecution witness, had a talk with appellant.
Mayamnes was an elder of the Kankanaey tribe to which appellant
belonged. He wanted to confirm whether Nemesio Lopate, who was likewise
from the same tribe, [18] was having an affair with appellants spouse. Talk
apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible.[19] A visibly angry appellant confirmed the
gossip.[20] Mayamnes also testified that he advised Nemesio to stay at the
Mountain Trail Kankanaey community until things had cooled down.[21]
Shortly after their talk, appellant closed down his bakeshop and offered
his equipment for sale. Among the potential buyers he approached was
Mayamnes, but the latter declined the offer.[22]
Sometime during the first week of March, Mayamnes saw appellant load
his bakery equipment on board a hired truck and depart for Nueva Vizcaya.
[23]

At around 10:00 p.m. of March 10, 1996, according to another

prosecution witness, Annie Bayanes, a trader in vegetables, she was at the
Trading Post, La Trinidad, Benguet. [24] The Trading Post is a popular depot
where vegetable growers in the Cordilleras bring their produce late in the
evenings for sale to wholesalers and retailers. Witness Bayanes said she was
at the unloading area (bagsakan), conversing with another dealer at the
latters booth, when suddenly two gunshots shattered the quiet evening.[25]
Bayanes turned towards the place where the sound of the gunshots came
from. She testified that she saw a person falling to the ground. [26] Standing
behind the fallen individual, some 16 inches away, [27] was another person
who tucked a handgun into his waistband and casually walked away.[28]
Initially, she only saw the gunmans profile, but when he turned, she
caught a glimpse of his face. [29] She immediately recognized him as the
appellant June Ignas. She said she was familiar with him as he was her
townmate and had known him for several years. Witness Bayanes was five or
six meters away from the scene, and the taillight of a parked jeepney, which
was being loaded with vegetables, plus the lights from the roof of
the bagsakan, aided her recognition of appellant.[30]

Also at the bagsakan area that night was prosecution witness Marlon
Manis. He testified that on hearing gunshots from the Trading Post entrance,
he immediately looked at the place where the gunfire came from. He saw
people converging on a spot where a bloodied figure was lying on the
ground.[31] Witness Manis saw that the fallen victim was Nemesio Lopate,
whom he said he had known since Grade 2 in elementary school. [32] Manis
then saw another person, some 25 meters away, hastily walking away from
the scene. He could not see the persons face very well, but from his gait and
build, he identified the latter as his close friend and neighbor, June Ignas.
[33]
Manis said that the scene was very dimly lit and the only illumination was
from the lights of passing vehicles, but he was familiar with appellants build,
hairstyle, and manner of walking.[34]
Prosecution witness Mona Barredo, a bakery worker, testified that she
knew appellant. She said they were co-workers formerly at the Annaliza
Bakery at Km. 10, Shilan, La Trinidad, Benguet. [35] Barredo declared that at
around 10:30 p.m. of March 10, 1996, appellant came to her residence at
Pico, La Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from the chamber.
[36]
Appellant then told her to throw the empty cartridges out of the
window. Because of nervousness she complied.[37] Barredo also said that
appellant disclosed to her that he had just shot his wifes paramour.
[38]
Appellant then stayed at her house for 8 or 9 hours; he left only in the
morning of March 11, 1996, [39] according to her. Police investigators later
recovered the spent gun shells from witness Barredos sweet potato garden.
[40]

According to witness on the scene, responding policemen immediately

brought the victim, Nemesio Lopate, to the Benguet General Hospital where
he was pronounced dead on arrival.[41]
Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet,
testified during that trial that she conducted the post-mortem examination of
the victims cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms.
span), on the right side of the mouth, above the edge of the upper lip
xxx

3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of
the upper lip on the left side
xxx
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam.,
with blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal
space, subscapular area, 13 cm. from the midline, directed to the left side of
the chest, 38.0 cm. from the embedded bullet slug of the left shoulder.[42]
Dr. Jovellanos determined the cause of death to be Hypovolemia due to
gunshot wound, back, right, (Point of Entry fifth intercostal space subscapular
area).[43] She further stated on the witness stand that she recovered a bullet
from the victims left shoulder, which she turned over to the police
investigators.[44] According to her, given the blackened edges of the gunshot
wound at the victims back, Nemesio was shot from a distance of less than
three (3) feet.[45]
On March 14, 1996, police investigators accompanied by one of
appellants brother as well as prosecution witness Julio Bayacsan, a friend of
appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light
on the slaying of Nemesio. The law enforcers found appellant selling bread at
Kayapa and brought him back to La Trinidad, Benguet.[46]
Witness Bayacsan testified that shortly after they arrived from Kayapa,
he had an opportunity to talk with appellant at the La Trinidad Police
Station. There, appellant disclosed to this witness that he shot and killed
Nemesio.[47] Bayacsan, however, did not inform the police about appellants
revelation as he considered appellant his good friend.[48]
Prosecution witness Pauline Gumpic, the victims sister, testified that she
and appellant had a private talk, while the latter was in police custody, and
appellant admitted to her that he killed her brother. [49] Gumpic declared that
appellant revealed to her that he shot Nemesio for having illicit relations with
appellants wife and failing to ask for his forgiveness.[50]
SPO4 Arthur Bomagao[51] of the La Trinidad police, who headed the team
that investigated the fatal shooting of Nemesio, declared on the stand that
appellant voluntarily admitted to him that he shot the victim with a .38
caliber handgun.[52] Bomagao further testified that appellant surrendered to

him the letters of Wilma Grace, wherein the latter admitted her affair with
Nemesio.[53]
Appellant interposed the defense of alibi. Sometime during the last week
of February 1996, he said, he entered into a partnership with a friend and
fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.
[54]
Appellant claimed that he was having a hard time operating his bakeshop
in La Trinidad as he had no helpers. When Anoma proposed a business
arrangement, he added, he immediately seized the opportunity. [55] On March
8, 1996, he and Anoma then transferred his equipment to Anomas bakery in
Kayapa,[56] which is some four (4) to five (5) hours away from La Trinidad,
according to appellant. He averred that he was baking bread with Anoma in
Kayapa on the night Nemesio was killed. [57] Under oath, appellant said that
he never left Kayapa since his arrival on March 8, 1996. He and Anoma were
engrossed in baking and marketing their produce, he testified, until the
policemen from La Trinidad brought him back to Benguet for questioning on
March 14, 1996.[58]
Defense witness Ben Anoma corroborated appellants alibi. Anoma
declared that during the last week of February 1996, he met with appellant
in La Trinidad. There, the witness said, he proposed a partnership with
appellant in the baking business to be based in Kayapa.[59] Appellant agreed
and on March 8, 1996, they transferred appellants equipment to Kayapa.
[60]
They immediately commenced their operations and on the evening of
March 10, 1996, he and appellant baked bread at his bakery in Kayapa until
11:00 p.m., when they rested for the night.[61]
The trial court disbelieved appellants defense and sustained the
prosecutions version. Its initial judgment reads:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and
penalized under Article 248 of the Revised Penal Code, and considering the
aggravating circumstances of treachery, nighttime and the special
aggravating circumstance of the use of an unlicensed firearm, without any
mitigating circumstance, he is hereby sentenced to suffer the penalty
of Reclusion Perpetua. He is further sentenced to pay the heirs of the VICTIM
the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the
wake;

2. P1,800,000.00 for unearned income;

3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers this 18 th day of February 1999 at La Trinidad,
Benguet, Philippines.[62]
Both the prosecution and the defense filed their respective motions for
reconsideration. The prosecution sought the imposition of the death penalty.
[63]
The defense prayed for acquittal on the ground of reasonable doubt.
On June 2, 1999, the trial court granted the prosecutions motion. It
amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and
penalized under Article 248 of the Revised Penal Code, and considering the
aggravating circumstances of treachery, nighttime and the special
aggravating circumstance of the use of an unlicensed firearm, without any
mitigating circumstance, he is hereby sentenced to suffer the penalty
of death by lethal injection. He is further sentenced to pay the heirs of the
victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the
wake;
2. P2,040,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.

SO ORDERED in Chambers.[64]
Hence, this automatic review, with appellant imputing the following
errors to the court a quo:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE
THE WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE
ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSED-APPELLANT
DESPITE ITS BEING HEARSAY IN NATURE AND IN VIOLATION OF HIS RIGHTS
UNDER CUSTODIAL INVESTIGATION.
III
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE TO THE
DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT.
IV
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE TRIAL
COURT GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF THE
DECEASED WAS ATTENDED BY EVIDENT PREMEDITATION, TREACHERY AND
NIGHTTIME.
V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPRECIATED
THE ALLEGED USE OF AN UNLICENSED .38 CALIBER FIREARM AS AN
AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF THE CRIME OF
MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS.
VI
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT
APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING

CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE,

PASSION AND OBFUSCATION AND VOLUNTARY SURRENDER.
VII
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED
EXCESSIVE DAMAGES IN THE FORM OF FUNERAL EXPENSES AND UNEARNED
INCOME OF THE DECEASED WHICH WERE NOT SUFFICIENTLY PROVEN. [65]
Appellants assigned errors may be reduced to the following pertinent
issues: (1) the nature of the crime committed, if any; (2) the sufficiency of
the prosecutions evidence to prove appellants guilt; (3) the correctness of
the penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the
appellants conviction for the unlawful killing of Nemesio Lopate, the question
arises: Was the killing murder as found by the trial court or mere homicide?
Note that the amended information under which the appellant stands
charged does not, unlike the original information, charge appellant with
murder but with mere unlawful killing albeit through the use of an unlicensed
firearm. Note further that the amended information does not definitely and
categorically state that the unlawful killing was attended by the aggravating
or qualifying circumstances of treachery, evident premeditation, and
nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the qualifying
and aggravating circumstances must be specifically alleged in the
information.[66] Although the Revised Rules of Criminal Procedure took effect
only on December 1, 2000 or long after the fatal shooting of Nemesio Lopate,
as a procedural rule favorable to the accused, it should be given
retrospective application. Hence, absent specific allegations of the attendant
circumstances of treachery, evident premeditation, and nocturnity in the
amended information, it was error for the trial court to consider the same in
adjudging appellant guilty of murder. As worded, we find that the amended
information under which appellant was charged and arraigned, at best indicts
him only for the crime of homicide. Any conviction should, thus, fall under
the scope and coverage of Article 249[67] of the Revised Penal Code.

As for the separate case for illegal possession of firearm, we agree with
the trial courts order to dismiss the information for illegal possession of
firearm and ammunition in Criminal Case No. 97-CR-2753. [68] Under R.A. No.
8294,[69] which took effect on July 8, 1997, where murder or homicide is
committed with the use of an unlicensed firearm, the separate penalty for
illegal possession of firearm shall no longer be imposed since it becomes
merely a special aggravating circumstance.[70] This Court has held in a
number of cases[71] that there can be no separate conviction of the crime of
illegal possession of firearm where another crime, as indicated by R.A. No.
8294, is committed. Although R.A. No. 8294 took effect over a year after the
alleged offense was committed, it is advantageous to the appellant insofar
as it spares him from a separate conviction for illegal possession of firearms
and thus should be given retroactive application.[72]
2. Sufficiency of the Prosecutions Evidence
But is the prosecutions evidence sufficient to sustain a conviction for
homicide?
Appellant primarily contests the accuracy of the identification made by
the prosecution witnesses who testified that they saw him at the locus
criminis, tucking a gun in his pants and casually walking away. For one, he
contends that the prosecution witnesses who were present at the scene did
not in fact see appellant as the person who allegedly shot the victim. Witness
Marlon Manis was not certain that the person he saw walking away from the
fallen victim was appellant. As per Manis own admission, he merely
presumed that it was appellant. As to witness Annie Bayanes, her
identification of appellant as the assailant was equally doubtful. The fact is
she did not see the alleged gunmans face, considering that the only
illumination on the scene was a vehicles taillight. Appellant stresses that
both Bayanes and Manis were in a state of excitement and nervousness as a
result of the incident, hence the resultant commotion and fear distracted
their powers of observation. Appellant insists that given these
considerations, the testimonies of Bayanes and Manis failed to show that he
was at the scene of the crime, much less prove that he was the gunman.
For the appellee, the Office of the Solicitor General (OSG) contends that
the failure of Manis to see the actual shooting is irrelevant, as such was not
the purpose for which his testimony was offered in evidence. Rather, Manis
testimony was meant to provide circumstantial evidence tending to show the

physical description of Nemesios attacker, and not as an eyewitness

testimony to positively identify said assailant. Neither was Bayanes
presented to testify as an eyewitness to the shooting, but to declare that she
got a clear look at the face of the suspectedgunman.
We note that at the heart of the prosecutions case is the familiarity of
Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the
prosecutions theory that circumstantial evidence shows that appellant killed
Nemesio would collapse like a house of cards. It was precisely this familiarity
with appellant, which enabled said witnesses to recognize him as the person
tucking a gun in his waistband and walking away from the fallen victim.
Bayanes had known appellant for some ten (10) years before the incident
and even described him as a good man.[73] She was only five or six meters
away from the scene of the crime and was able to fully look at the face of the
person tucking a gun in his pants and walking away. Familiarity with the
physical features, particularly those of the face, is actually the best way to
identify the person.[74] That the only illumination in the area came from the
taillight of a parked vehicle and the lights on the roof of the bagsakan does
not discredit her account. We have held that moonlight,[75] starlight,
[76]
kerosene lamps,[77] a flashlight,[78] and lights of passing vehicles [79] may be
adequate to provide illumination sufficient for purposes of recognition and
identification. Under the circumstances of these cases, this Court believes
that Bayanes was in the position and had a fair opportunity to identify
appellant as the person leaving the crime scene with a gun tucked in his
waist.
Her testimony was buttressed by that of witness Marlon Manis. A former
neighbor of appellant, he had known appellant since 1993. He was a
frequent customer at appellants bakery. In the rural areas, people tend to be
more familiar with their neighbors. This familiarity may extend to body
movements, which cannot easily be effaced from memory. Hence, Manis
testimony that he could recognize appellant even just from his build and
manner of walking is not improbable. His declaration that he was some
twenty-five (25) meters away from the person walking away from the victim
does not make recognition far-fetched. Once a person has gained familiarity
with another, identification is an easy task, even from that distance.[80]
Evidence should only be considered for the purpose it was formally
offered.[81] As the Solicitor General points out, the statements of Bayanes and
Manis were not offered to positively identify appellant as the assailant, but to

provide circumstantial evidence concerning Nemesios assailant, tending to

prove that appellant did shoot the victim. Thus, the court a quocommitted no
reversible error in giving weight and credence to the testimonies of Bayanes
and Manis for the stated purposes therefor.
Appellant next assails the testimonies of the following prosecution
witnesses: (1) Pauline Gumpic for being inconsistent and flawed with
contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained
delay in giving their respective sworn statements to the police; and (3) Mona
Barredo for flip-flopping with respect to the alleged admission to her by
appellant and how the police investigators knew about said admission, after
she claimed that she did not tell anyone about his revelation. Appellant
submits that the trial court erred in giving weight to the aforementioned
testimonies.
For appellee, the OSG argues that with respect to Gumpics alleged
contradictions, they refer only to unimportant and collateral matters; they do
not affect her credibility. With respect to the delay or vacillation by Bayacsan
and Bayanes in giving their statements to the authorities, the OSG points out
that a reading of their declarations in court will show that the alleged delay
was adequately explained. As to Barredos testimony, a closer reading of her
supposed flip-flopping shows that the alleged contradictions were due to an
honest misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the appellate
court will not generally disturb the findings of the trial court because the
latter is in the vantage position of observing witnesses through the
various indicia of truthfulness or falsehood.[82] However, this rule is not
absolute. One exception is where the judge who wrote the decision did not
personally hear the prosecutions evidence.[83] In this case, the records show
that Judge Angel V. Colet, who authored the assailed decision, took over from
Judge Benigno M. Galacgac only on April 29, 1997 or after the witnesses for
the prosecution had testified. It does not follow, however, that a judge who
was not present at the trial cannot render a just and valid judgment. The
records and the transcripts of stenographic notes are available to him as
basis for his decision.
After going over the transcripts of the witnesses testimonies, we find no
reason to disturb the findings of the trial court. With respect to the
statements of Gumpic, we agree with the Solicitor General that alleged

inconsistencies refer only to irrelevant and collateral matters, which have

nothing to do with the elements of the crime. It is axiomatic that slight
variations in the testimony of a witness as to minor details or collateral
matters do not affect his or her credibility as these variations are in fact
indicative of truth and show that the witness was not coached to fabricate or
dissemble.[84] An inconsistency, which has nothing to do with the elements of
a crime, is not a ground to reverse a conviction.[85]
We likewise find no basis for appellants contention that Bayanes and
Bayacsan failed to give a satisfactory explanation for the delay or vacillation
in disclosing to the authorities what they knew. Bayanes gave a satisfactory
reason for her delay in reporting to the authorities what she knew. She had
simply gone about her normal business activities for some months, unaware
that a case had been filed concerning the killing of Nemesio. It was only nine
(9) months after the incident that she read a notice for help posted by the
victims relatives at the Trading Post, appealing to possible witnesses to the
killing to come forth and assist them in their quest for justice. It was only
then that she decided to reveal to the authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered
appellant his friend and he wanted to protect him and hence, he only
disclosed appellants admission to him when the police started questioning
him. There is no rule that the suspect in a crime should immediately be
named by a witness.[86] Different people react differently to a given situation
and there is no standard form of human behavior when one is confronted
with a strange, startling, or frightful experience. [87] The Court understands
the natural reluctance or aversion of some people to get involved in a
criminal case.[88] More so where, as in these cases, a townmate of Bayanes
and Bayacsan is involved. We have taken notice that when their townmates
are involved in a criminal case, most people turn reticent. [89] Hence, the
failure of Bayanes and Bayacsan to immediately volunteer information to the
police investigators will not lessen the probative value of their respective
testimonies. The delay, having been satisfactorily explained, has no effect on
their credibility.[90]
We have likewise closely scrutinized the testimony of Mona Barredo
regarding the alleged admission by appellant to her that he killed the victim.
We find nothing flip-flopping about her testimony. Instead, we find a witness
who admitted she was nervous that she might not be able to answer all the
questions.[91] Said nervousness was engendered by her erroneous belief that

to be a credible witness, she must have personal knowledge of the crime.

[92]
Even the most candid witnesses make mistakes and may give some
contradictory or inconsistent statements, but such honest lapses need not
necessarily affect their credibility. Ample margin should be accorded a
witness who is tension-filled with the novelty of testifying before a court.[93]
Appellant further contends that the trial court erred in giving credence to
the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao inside
the police station since said admissions are inadmissible in evidence as
uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as
those made to appellant to Bayacsan and Barredo, are admissible as
statements forming part of the res gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the principal act or res gestae must
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false statement, and
the statement was made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances. [94] All
these elements are present in appellants verbal admission to Barredo that he
killed the victim when he went to the latters house half an hour after the
fatal shooting of Nemesio.
The verbal admission by appellant to Barredo was made before appellant
had the time and opportunity to contrive a falsehood. Similar statements
have been held to be part of the res gestae: (1) a childs declaration made an
hour after an alleged assault;[95] (2) the testimony of a police officer as to
what the victim revealed to him some 30 minutes after the commission of an
alleged crime;[96] and (3) a victims declaration made some 5 to 10 minutes
after an alleged felony took place. [97] Note that since appellants admission
was not solicited by police officers in the course of a custodial investigation,
but was made to a private person, the provisions of the Bill of Rights on
custodial investigation do not apply. The Rules of Court [98] provides that an
admission made to a private person is admissible in evidence against the
declarant.[99]
Prosecutions evidence here is admittedly circumstantial. But in the
absence of an eyewitness, reliance on circumstantial evidence is inevitable.

[100]

Resort thereto is essential when the lack of direct evidence would result
in setting a felon free.[101]
Circumstantial evidence suffices to convict if the following requisites are
met: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
[102]
In our mind, the following pieces of circumstantial evidence show with
moral certainty that appellant was responsible for the death of Nemesio:
1. Appellant had the motive to kill Nemesio Lopate for having an affair with
his wife, and appellant had openly expressed his desire and intention to do
so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis
heard two gun shots at the Trading Post, La Trinidad, Benguet and saw
Nemesio Lopate fall to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his
waistband, and walking away;
4. From another angle, Manis also saw a person whose gait and built
resembled that of appellant walking away from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of
Mona Barredo, brought out a handgun, emptied it of two spent .38 caliber
shells and instructed Barredo to throw the shells out of the window, which
she did;
6. Appellant then told Barredo that he had shot and killed his wifes
paramour, after which he stayed at Barredos house for the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet recovered a .38 caliber slug from Nemesios corpse and
found two (2) bullet entry wounds on the said cadaver;
8. On March 18, 1996, police investigators, assisted by Barredo, recovered
two (2) spent .38 caliber shells from Barredos sweet potato patch,
immediately outside her residence wherein appellant had slept a week
before.

The foregoing circumstances clearly show that appellant had the motive,
the opportunity, and the means to commit the crime at the place and time in
question. Simply put, the circumstantial evidence adduced by the
prosecution has successfully overcome the claim of innocence by appellant.
Under the proved circumstances, appellants defense of alibi is untenable.
More so, in this situation where prosecution witness Bayanes unflinchingly
declared that she saw appellant standing behind the victim, tucking a gun in
his pants, moments after the latter was shot. As we held in People v.
Salveron,[103] and reiterated in People v. Sesbreo,[104] where an eyewitness
saw the accused with a gun, seconds after the gunshot and after the victim
fell to the ground, the reasonable conclusion is that said accused killed the
victim.
Appellants alibi cannot prevail over the positive testimony of Bayanes
concerning appellants identification and presence at the crime scene. Basic
is the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime. [105] Physical
impossibility refers to the distance between the place where the appellant
was when the crime transpired and the place where it was committed, as
well as the facility of access between the two places. [106] In these cases, the
defense admitted that the distance between La Trinidad, Benguet and
Kayapa, Nueva Vizcaya is 79 kilometers, which can be negotiated in 4 or 5
hours.[107] Clearly, it was not physically impossible for appellant to be at
the locus criminis at the time of the killing. Hence, the defense of alibi must
fail.
In sum, we find that the prosecutions evidence suffices to sustain the
appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that he cannot,
under the provisions of RA No. 7659, be sentenced to suffer the death
penalty. The penalty for homicide under Article 249 of the Revised Penal
Code is reclusion temporal. Our task now is to determine whether there are
aggravating or mitigating circumstances which could modify the penalty.
More specifically, may the special aggravating circumstance of use of an
unlicensed firearm be taken against the appellant?

Appellant argues that the trial court erred in appreciating the special
aggravating circumstance of use of unlicensed firearm in the present case.
Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough that the
special aggravating circumstance of use of unlicensed firearm be alleged in
the information, the matter must be proven with the same quantum of proof
as the killing itself. Thus, the prosecution must prove: (1) the existence of the
subject firearm; and (2) the fact that the accused who owned or possessed it
does not have the corresponding license or permit to own or possess the
same.[108] The records do not show that the prosecution presented any
evidence to prove that appellant is not a duly licensed holder of a caliber .38
firearm. The prosecution failed to offer in evidence a certification from the
Philippine National Police Firearms and Explosives Division to show that
appellant had no permit or license to own or possess a .38 caliber
handgun. Nor did it present the responsible police officer on the matter of
licensing as a prosecution witness.Absent the proper evidentiary proof, this
Court cannot validly declare that the special aggravating circumstance of use
of
unlicensed
firearm
was
satisfactorily
established
by
the
prosecution. Hence such special circumstance cannot be considered for
purposes of imposing the penalty in its maximum period.
Coming now to the obverse side of the case, is the appellant entitled to
benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that he is
guilty, the lower court should have considered at least the mitigating
circumstance of immediate vindication of a grave offense as well as that of
passion and obfuscation. Appellant points out that the victims act of
maintaining an adulterous relationship with appellants wife constituted a
grave offense to his honor, not to mention the shame, anguish, and anxiety
he was subjected to. Even the mere sight of the victim must have triggered
an uncontrollable emotional outburst on appellants part, so that even a
chance meeting caused in him an irresistible impulse powerful enough to
overcome all reason and restraint. Secondly, appellant points out that the
trial court failed to consider his voluntary surrender as a mitigating
circumstance.

The Solicitor General counters that there was literally no immediate

vindication to speak of in this case. Appellant had sufficient time to recover
his serenity following the discovery of his wifes infidelity. Nor could passion
and obfuscation be appreciated in appellants favor because the killing was
not proximate to the time of the offense. Appellant became aware of the
treatment offensive to his dignity as a husband and to the peace and
tranquility of his home two weeks earlier. This interval between the
revelation of his wifes adultery and the fatal shooting was ample and
sufficient for reason and self-control to reassert themselves in appellants
mind. As to the mitigating circumstance of voluntary surrender, the OSG
stresses that his supposed surrender at Kayapa, Nueva Vizcaya was actually
due to the efforts of law enforcers who came looking for him. There he did
not resist, but lack of resistance alone is not tantamount to voluntary
surrender, which denotes a positive act and not merely passive conduct.
According to the OSG, for the mitigating circumstance of vindication of a
grave offense to apply, the vindication must be immediate. This view is not
entirely accurate. The word immediate in the English text is not the correct
translation of the controlling Spanish text of the Revised Penal Code, which
uses the word proxima.[109] The Spanish text, on this point, allowsa lapse of
time between the grave offense and the actual vindication. [110] Thus, in an
earlier case involving the infidelity of a wife, the killing of her paramour
prompted proximately though not immediately by the desire to avenge the
wrong done, was considered an extenuating circumstance in favor of the
accused.[111] The time elapsed between the offense and the suspected cause
for vindication, however, involved only hours and minutes, not days. Hence,
we agree with the Solicitor General that the lapse of two (2) weeks between
his discovery of his wifes infidelity and the killing of her supposed paramour
could no longer be considered proximate. The passage of a fortnight is more
than sufficient time for appellant to have recovered his composure and
assuaged the unease in his mind. The established rule is that there can be no
immediate vindication of a grave offense when the accused had sufficient
time to recover his serenity.[112] Thus, in this case, we hold that the mitigating
circumstance of immediate vindication of a grave offense cannot be
considered in appellants favor.
We likewise find the alleged mitigating circumstance of passion and
obfuscation inexistent. The rule is that the mitigating circumstances of
vindication of a grave offense and passion and obfuscation cannot be
claimed at the same time, if they arise from the same facts or motive. [113] In

other words, if appellant attacked his victim in proximate vindication of a

grave offense, he could no longer claim in the same breath that passion and
obfuscation also blinded him. Moreover, for passion and obfuscation to be
well founded, the following requisites must concur: (1) there should be an act
both unlawful and sufficient to produce such condition of mind; and (2) the
act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his moral equanimity. [114] To repeat, the period of
two (2) weeks which spanned the discovery of his wifes extramarital
dalliance and the killing of her lover was sufficient time for appellant to
reflect and cool off.
Appellant further argues that the lower court erred in failing to consider
voluntary surrender as a mitigating circumstance. On this point, the following
requirements must be satisfied: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in authority; and
(3) the surrender was voluntary. [115] Records show, however, that leaflets and
posters were circulated for information to bring the killer of Nemesio to
justice. A team of police investigators from La Trinidad, Benguet then went to
Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did he
return to Benguet. But he denied the charge of killing the victim. Clearly,
appellants claimed surrender was neither spontaneous nor voluntary.
Absent any aggravating or mitigating circumstance for the offense of
homicide the penalty imposable under Art. 64 of the Revised Penal Code
is reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, the penalty which could actually be imposed on appellant is
an indeterminate prison term consisting of eight (8) years and one (1) day
ofprision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that the trial
court awarded excessive actual damages without adequate legal basis. Thus,
the amount of P150,000.00 was awarded for funeral and burial expenses
without any supporting evidence on record. [116] This cannot be sustained in
this review. In order for actual damages to be recovered, the amount of loss
must not only be capable of proof but must actually be proven with
reasonable degree of certainty, premised upon competent proof or best

evidence obtainable of the actual amount thereof, such as receipts or other

documents to support the claim.[117] The records clearly show in this case
that only the amount of P7,000 as funeral expenses was duly supported by a
receipt.[118] Hence, the award of actual damages should be limited to P7,000
only.
Appellant further contests the award of P2,040,000 for loss of earning
capacity as unconscionable. Since the victims widow could not present any
income tax return of her husband to substantiate her claim that his net
income was P60,000 annually, then according to appellant, there is no basis
for this award at all. At best, appellant says, only temperate or nominal
damages may be awarded.
The OSG responds that the award for loss of earning capacity has
adequate basis as the prosecution presented sufficient evidence on the
productivity of the landholdings being tilled by the deceased and the
investments made by the Lopate family from their income. Hence, said the
OSG, it was not a product of sheer conjecture or speculation. Nonetheless,
the OSG submits that the original amount of P1,800,000 for loss of earning
capacity should be restored as it is this amount which takes into account only
a reasonable portion of annual net income which would have been received
as support by the heirs.
In setting said award at P2,040,000, amended from P1,800,000, for lost
earnings, the trial court took note of the following factors in its computations:
The Death Certificate of Nemesio Lopate shows that he died at the age of
29.
His widows detailed testimony shows that their average annual net
income from vegetable farming was P60,000.[120] The victims share of the
annual net income from the couples farm is half thereof, or P30,000. Using
the American Expectancy Table of Mortality, the life expectancy of the victim
at age 29 is set at 34 years.
[119]

Therefore, total loss of Earning Capacity (X) should be computed as

follows:
X = 2/3 (80-29) x P30,000
X = 2/3 (51) x P30,000
X = 34 x P30,000

X = P1,020,000
This amount should form part of the damages awarded to the heirs.
We sustain the award of P50,000 as indemnity ex delicto. But there being
no testimony or other proof thereon, the award of P50,000 as moral damages
cannot now be sustained.Instead, temperate damages in the amount
of P25,000 should be awarded.
The award of P20,000 in attorneys fees should be maintained. Records
show that the victims widow had to hire the services of a private prosecutor
to actively prosecute the civil aspect of this case, [121] and in line with Article
2208 of the Civil Code,[122] reasonable attorney fees may be duly recovered.
WHEREFORE, the judgment of the Regional Trial Court of La Trinidad,
Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as follows:
Appellant June Ignas y Sanggino is found GUILTY beyond reasonable
doubt of the crime of HOMICIDE as defined and penalized under Article 249
of the Revised Penal Code, as amended. There being neither aggravating nor
mitigating circumstance, he is hereby sentenced to suffer an indeterminate
penalty of ten (10) years and one (1) day of prision mayor as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the
victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages;
b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity;
d) P25,000 as temperate damages; and e) P20,000 as attorneys
fees. Costs de oficio.
SO ORDERED.
G.R. No. L-32042 December 17, 1976
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION

AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila
after he pleaded guilty to the charge of murder for having shot with a .22
caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was
qualified by treachery and aggravated by premeditation and disregard of
rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of
February 13, 1975 affirmed the judgment of conviction. It appreciated in
Benito's favor the mitigating circumstance of voluntary surrender. The
penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to
the mitigating circumstance of immediate vindication of a grave offense and
that the aggravating circumstances of disregard of rank should not be
appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken,
about five hours after the shooting, by Corporal E. Cortez and Patrolmen J. de
la
Cruz,
Jr.,
and
H. Roxas of the Manila Police, recounted the background and circumstances
of the tragic incident in this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service
Commission sa kalye P. Paredes, Sampaloc, Maynila, at ako ay
Clerk 2 sa Administrative Division at ako ay nagumpisa ng
pagtratrabaho sa Civil Service magmula pa noong November,
1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan
nila ako ng "DISHONESTY" at nasuspende ako ng 60 days at
nabalik ako sa trabaho noong January 1966 pero kinarguhan uli
nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED
THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at
dinimanda din ako ng Civil Service ng Administrative case ng
"DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner
Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho
noong kinargo nila sa akin na sinabi ko sa inyo ay "fabricated"

lang ang mga evidensiya at ang gumawa ho noong ay ang binaril

ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka pending
pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon
namang "dismissal order" ni Commissioner Subido ay inapela ko
sa Civil Service Board of Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa
"fabricated" charges ay naghirap na ko sa aking buhay at
nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting
department noon at nagagalit sa akin ang mga empleyado ng
Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay
nagpunta sa Civil Service sa kalye Paredes at nakita ko si PEDRO
MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong
kaso ko ay matagal na at hindi pa natatapos at baka matulungan
niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA
MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis
na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni
PEDRO MONCAYO Jr. sa loob ng compound ng Civil Service at sa
harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA
DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito,
Desiyembre 12, 1969, nakita ko si PEDRO MONCAYO Jr. na
nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng
Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya
ng walong beses at tinamaan siya at napatumba siya sa
kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters
para sumurender at kayo nga ang dumating kasama ninyo iyong
mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting
with the eight empty shells of the bullets which he had fired at Moncayo.

The Police report contains the following background and description of the
killing (Exh. B):
According to the suspect, he was a former employee of the Civil
Service Commission at its main office located at P. Paredes,
Sampaloc. Mla., and was assigned as Clerk 2 in the
Administrative Division from Nov. 1963 continuously up to Nov.
1965 when he was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged
for QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA
and FALSIFICATION OF PUBLIC DOCUMENTS and administratively
charged for "DISHONESTY" culminating in his dismissal from the
Civil Service on February 1966.
The aforecited criminal charges against the suspect was
allegedly investigated by Asst. Fiscal MAGAT. Records from the
CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the
City Court of Mla. issued a Warrant No. E-316758 for the arrest of
the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla.
issued an order No. OA-87409 for the arrest of the suspect for the
crime of MALVERSATION OF PUBLIC FUNDS. According to the
suspect, the aforecited criminal and administrative charges filed
him were allegedly instigated and contrived by the victim and
since the time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P.
Paredes st. and requested the victim to help him in his cases but
the former allegedly uttered to the suspect "UMALIS KA NGA
DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA
DITO".
The suspect left and returned the following morning at 11:00
a.m. of Dec. 12, 1969, and when they met again, the victim
allegedly remarked in the presence of many people,
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect
who was humiliated and incensed, left.

At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect
who was armed with an unlicensed Cal. 22 black revolver (w/ SN
- P-5317, Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO.
INC. MLA. P.I.) loaded with nine (9) live Cal. 22 bullets in its
cylinder, waited for the victim outside the Civil Service
compound at P. Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car
(w/
Plate
No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident
premeditation, surreptitiously followed the victim and when the
latter's car was at a full stop at the corner of Lepanto and P.
Paredes sts. due to heavy traffic of motor vehicles, the suspect
without any warning or provocation, suddenly and treacherously
shot the victim eight (8) times on the head and different parts of
the body at closer range which consequently caused the latter's
death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a
red private car (w/ Plate No. L-55117) by his co-employees
(composed of VICTOR VILLAR, ELEUTERIO MENDOZA &
FORTUNATO JOSE Jr.) to the FEU Hospital. Unfortunately, the
victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant
Chief of the Personnel Transactions Division and Acting Chief, Administrative
Division of the Civil Service Commission (Exh. E to E-2). The accused was a
clerk in the cash section, Administrative Division of the Commission,
receiving P1,884 per annum (Exh. D). He started working in the Commission
on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the
Commissioner of Civil Service that Benito admitted having malversed an
amount between P4,000 and P5,000 from his sales of examination fee
stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM
The
Through Proper Channels

for
Commissioner

This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the

Administrative Division of this Commission, who, as had
previously been reported, malversed public funds in the amount
of approximately P5,000.00 out of his collections from the sale of
examination fee stamps.
I wish to state that this matter came to my attention on the
evening of March 1, 1965 when Mr. Teodoro Abarquez, Acting
Cashier I, reported to me that fifty (50) money orders at P2.00
each with a total vlaue of P100.00 were missing from a bundle of
money orders received from the Provincial Treasurer of Cotabato,
which were kept by him in one of the cabinets inside the
Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr.
Benito stole the missing money orders. His suspicion arose from
the fact that he found several money orders marked "Cotabato"
as their place of issue among the cash receipts turned over to
him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said
money orders issued in Cotabato which were turned over to him
by Mr. Benito and after checking their serial numbers with the
records of list of remittances on file, we were able to establish
definitely the fact that the said money orders were those
missing.
It may be stated that at that time, Mr. Benito was assigned to
work in the Cash Section and one of his duties was to sell
examination fee stamps to applicants for examinations. It was
then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in
the afternoon he turned over to the Cashier the proceeds from
the sale of stamps including the unsold stamps issued to him.
After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00
by substituting equivalent amount of money orders in the place
of the cash extracted by him from his daily collections from the
sale of examination fee stamps when he clears his accountability
with the Cashier.

The following day, I confronted Mr. Benito in the presence of Mr.

Abarquez and ask him whether he had something to do with the
loss of the fifty (50) money orders at P2.00 each. At first he
denied, but when I asked him where he obtained the money
orders issued in Cotabato which were included in his collections
the day preceding, he admitted having stolen the missing money
orders.
Having confessed his guiltk, I then asked Mr. Benito when he
started committing the said irregularity and how much in all did
he actually malversed out of his daily collections from the time
that he started the anomaly. He stated in the presence of Mr.
Abarquez that he started in January, 1965 and that although he
did not know exactly the total amount malversed by him, he
believed the amount to be between P4,000.00 to P5,000.00. He
also confessed that he used the money orders remitted by the
Provincial Treasurer of Negros Occidental in the amount of
P3,436.00 in substituting various amounts extracted by him from
his daily cash collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering
the money orders received from the Provincial Treasurer of
Negros Occidental was duly receipted by Mr. Benito. He was
supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount
involved for deposit to the National Treasurer. The said List of
Remittances, duly signed by Mr. Benito, is enclosed for use as
evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter
to the Commissioner. However, he pleaded that he be given first
an opportunity to restore the amount before I make my report in
order that the penalty that may be imposed upon him may be
lessened to a certain degree. As I thought it wise in the interest
of the service to recover the amount involved, I allowed him to
go and see his parents in Naga City to raise the amount in
question.
After two weeks, Mr. Benito informed me that his parents filed an
application for a loan with the Government Service Insurance

System and that the proceeds of the said loan which he intended
to use in restoring the amount malversed by him were expected
to be released during the last week of May, 1965. However, when
the month of May, 1965 elapsed without the amount involved
having been restored, I conferred with Mr. del Prado, my
immediate superior and asked him whether we should wait
further for the release of the said loan in order that the amount
involved may be recovered. Mr. Prado consented to giving him a
little more time.
When Mr. Benito still failed to restore the amount in question by
the end of June, 1965, I got hold of him on July 5, 1965 and
together with Messrs. del Prado, Abarquez and Gatchalian, also
of this Commission, brought him before Deputy Commissioner A.
L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez,
Gatchalian and myself, Mr. Benito admitted readily and
voluntarily before the Deputy Commissioner the commission of
the offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be
charged formally and that he be suspended from office
immediately considering the gravity of the offense committed by
him.
(Sgd.
)
PEDR
O R.
MON
CAYO
Admi
nistra
tive
Office
r II
Benito was charged with dishonesty. He had admitted to Deputy
Commissioner Alipio Buenaventura that he had misappropriated his
collections and spent the amount in nightclubs and pleasure spots and for

personal purposes. The decision dismissing him from the service reads as
follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk
I, Cash Section, Administrative Division of this Office, for
dishonesty.
The following excerpts from the letter dated October 22, 1965 of
the Commissioner of Civil Service connect respondent with the
alleged misappropriation of public funds representing his
collection from the sale of examination fee stamps and constitute
the basis of the instant case against him:
An investigation made by this Commission shows
that you malversed public funds in the amount of
P3,536.00 out of your collections from the sale of
examination fee stamps while in the performance of
your official duties as Clerk II in the Cash Section,
Administrative Division of this Office. It appears that
you succeeded in malversing the above-stated
amount from your cash collections by substituting in
lieu thereof money orders worth P3,436.00 remitted
to this Commission by the Provincial Treasurer of
Negros Occidental which were duly receipted for by
you. It also appears that you extracted from a bundle
of money orders remitted by the Provincial Treasurer
of Cotabato the amount of P100.00 in money orders
which were kept in one of the cabinets in the
Cashier's room.
Respondent denied the charge. He explained, among others, that
money orders were always kept in the Cashier's safe and he had
no access to them. Although he admitted having received money
orders amounting to P3,436.00 remitted by the Provincial
Treasurer of Negros Occidental and another remittance of the
Provincial Treasurer of Cotabato he, however, disclaimed having
substituted the same for cash collections in his sale of
examination fee stamps. He reasoned out further that he could
not be charged with malversation of public funds inasmuch as he
was not then an accountable officer.

It appears that respondent, as Clerk in the Cash Section,

performs, among other duties, the selling of examination fee
stamps, receiving payments therefor, and receiving remittances
in form of cash and/or money orders from provincial treasurers in
connection with examinations held in the provinces. It was also
his duty to issue official receipts for said remittances. In the
course of the performance of his duties, he received said
remittances from the Provincial Treasurers of Negros Occidental
and Cotabato, but no official receipts were issued by him, as
shown by the reply telegrams pertaining thereto. While records
disclose that remittances from the province of Cotabato were
submitted to the Cashier of the Civil Service Commission, there is
no evidence showing that remittances from Negros Occidental
were likewise submitted.
Investigation further reveals that 50 money orders were
discovered missing from the remittances of Cotabato Provincial
Treasurer which were kept in the cabinet of the Cashier. On or
about March 2, 1965, the Cashier of the Commission noticed that
15 money orders turned over by respondent as part of his
collections in the sale of examination fee stamps were among
the missing money orders. This triggered off the filing of this
case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy
Commissioner Alipio Buenaventura having misappropriated an
aggregate amount ranging from P3,000 to P7,000, which he
spent in night clubs, pleasure spots and other personal benefits.
Despite the testimonies of several witnesses regarding his
confession, including that of the then Deputy Commissioner
himself, respondent, when asked to take the stand, denied his
previous admission.
Instead, he argued that the cash and accounts of the Cashier of
the Civil Service Commission, when examined by representatives
of the Auditor's Office, did not indicate any shortage and
therefore there was no irregularity involved. This argument is not
well taken. Inasmuch as the remittances received by respondent
from said Provincial Treasurers of Negros Occidental and
Cotabato were not in turn given corresponding official receipts,

naturally, the same were not reflected on the Cashier's cash

book.
The weakness of respondent's defense lies not so much on its
failure to establish convincingly his innocence as its
irreconciliability with established facts. Obviously, none of the
circumstances in this case is consistent with his claim of
innocence. On the contrary, all of them put together produce
reasonable assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R.
Benito guilty as charged. Wherefore, he is dismissed from the
service effective upon his receipt of this decision.
In the interest of the service this decision is executed also on the
date of his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the
Commissioner's decision dismissing him. The appeal was pending at the time
when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark
which the victim, Moncayo, allegedly made upon seeing Benito in the
compound of the Civil Service Commission near the canteen at eleven
o'clock in the morning of December 12, 1969 (about six hours before the
shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as
Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service pala ay
istambayan ng magnanakaw." (27 tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense.
Benito contends that Moncayo insulted him when he (Moncayo) remarked
that a thief was loitering in the premises of the Civil Service Commission.
Benito argues that that remark "was tantamount to kicking a man already
down and to rubbing salt into a raw wound" and that, as it was made publicly
and in a loud voice, he was exposed to ridicule in the presence of his
officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco
dated January 16, 1975, acquitting him of the charge of malversation in
connection with his alleged misappropriation of the fees collected from the
examinees of the 1974 patrolman examination. That same decision makes

reference to Benito's exoneration from the administrative charge. The court's

decision reads as follows:
The accused is charged with malversation under the following
information:
That on or about and during the period comprised
between October 17, 1964, to February, 1965,
inclusive, in the City of Manila Philippines, the said
accused being then employed as Clerk I of the Civil
Service Commission, a branch of the government of
the Republic of the Philippines, among whose duties
were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and
by reason of his said position received the total
amount of P3,536.00, with the duty to turn over
and/or account for his collections to the cashier of
the Civil Service Commission immediately or upon
demand but the said accused once in possession of
the said amount of P3,536.00, with intent to defraud,
despite repeated demands made upon him to turn
over and to account for the same, did then and there
willfully, unlawfully and feloniously misappropriate,
misapply and convert and malverse the said amount
to his own personal use and benefit, to the detriment
of public interest and to the damage and prejudice of
the said Civil Service Commission in the said amount
of P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as
clerk in the Civil Service Commission from May 27, 1964, as clerk
I, range 23 from June 1, 1965 and as clerk I, range 26 from July
23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others,
of selling Civil Service examination- fee stamps and to receive
payment therefor, as well as to receive remittances of money
orders and checks from the provincial treasurers for payments of
examination fee stamps (Exhibit B).

Teodoro Abarquez, a cashier of the Civil Service Commission

during the period alleged in the information, testified in his direct
examination that Benito was working in his office; that one of the
duties that he assigned to him was to sell examination fee
stamps; that it was customary for him to give stamps to Benito
at the start of office hours in the morning and that Benito turned
over to him the proceeds of the sale, as well as the unsold
stamps, at the close of office hours in the afternoon; that one
afternoon he noticed that Benito turned over to him 50 money
orders from Cotabato, together with some cash, as proceeds of
the sale of stamps for that day; that he remembered that he was
missing money orders from one of his cabinets where he kept
them; that when he discovered that the 50 money orders were
those which were missing, he reported the matter to Pedro
Moncayo, the chief administrative officer; on March 1, 1965; that
the money orders were for P2.00 each, and were payments of
the examination fees from Cotabato (Exhibit F); that he
discovered the loss of the 50 money orders on February 28, 1965
and reported it to Moncayo on March 1, 1965, together with the
list of missing orders (Exhibit M); that after receiving the report,
Moncayo called Benito to the office of Abarquez where he
admitted taking the missing money orders; that Moncayo
submitted a memorandum to the Commissioner, dated October
21, 1965, after giving Benito a chance to refund the value of the
money orders (Exhibit O). Alipio Buenaventura, acting Deputy
Commissioner at the time, and Eliseo S. Gatchalian, budget
officer, testified that when Benito was confronted with the report
of Moncayo and Abarquez, he admitted that he misappropriated
about P3,000.00 because of bad company and that he asked for
a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in
his direct examination and explained that when Benito turned
over the proceeds of the sale of stamps for that particular day,
he kept the sum of P100.00 and replaced it with the 50 money
orders that he had taken from the cashier's office to cover up the
money that he had pocketed. When he was asked when he
discovered that Benito substituted the 50 money orders from
Cotabato, he answered that he checked them the following night
(March 2, 1965) with the list of money orders remitted by the

Provincial treasurer (Exhibits F, F-1); but when he was confronted

with his affidavit which he executed on April 18, 1966 (Exhibit R),
he reluctantly admitted that he had only verified 15 money
orders missing as of April 18, 1966 and that he did not keep any
record of the money and the money orders given to him by
Benito on March 1, 1965.
He also admitted that the room where he kept the money orders
in an unlocked drawer was also occupied by two other persons,
and that this was the first time that he had not followed the usual
procedure of keeping them in the safe. He further admitted that,
although regular examinations were conducted during the period
of October 1, 1964 to February 28, 1965 by the examiners of the
Civil Service Commission and the auditors of the General
Auditing Office, they did not find any shortage in the accounts of
Benito.
Finally, when the Court asked him what happened to the 50
money orders, at first he hinted that they were not deposited
with the Bureau of Treasury because they were reported missing;
but when pressed further, he said that he deposited them, but
did not issue any official receipt for them. When asked if he had
any evidence to show that they were actually deposited, he
admitted that he could not even remember when he deposited
them.
The testimony of Teodoro Abarquez upon which the prosecution
has built its case, is too weak and shaky to sustain a finding of
guilt because of his glaring inconsistencies, contradictions and
gaps in memory. The prosecution has failed to present
convincing evidence that the 50 money orders were even lost:
According to Abarquez he had only verified the loss of 15 on April
18, 1966, although he testified earlier that he determined the
loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors
of the General Auditing Office did not find any irregularity in the
cash accountability of Benito, according to Abarquez. This was
corroborated by Romeo Jarabelo, auditor of the Commission on
Audit and Miguel Games, auditing examiner assigned to the Civil

Service Commission, who testified for the accused. Benito was in

fact exonorated the administrative charge filed against him for
the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that
he has not issued any official receipt for the 50 money orders
and his inability to prove that he deposited them with the bureau
of Treasury gives rise to the suspicion that other persons, not the
accused, may have stolen the 50 missing money orders. Even
without taking into account the testimony of the accused, who
denied the testimonies of the witnesses for the prosecution, the
court believes that the prosecution has failed to prove the guilt of
the accused.
WHEREFORE, judgment is hereby
accused, with costs de oficio.

rendered acquitting the

The Solicitor General argues that the defamatory remark imputed to

Moncayo cannot give rise to the mitigating circumstance of vindication of a
grave offense because it was not specifically directed at Benito. The
prosecution notes that the remark was uttered by Moncayo at eleven o'clock
in the morning. According to Benito's testimony (not consistent with his
confession), he saw Moncayo three hours later or at two o'clock in the
afternoon and inquired from him about his case and Moncayo said that he
had already submitted his report and he could not do anything more about
Benito's case (26 tan). As already stated, the assassination was perpetrated
at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no
justification under the circumstances recited above for changing our prior
opinion that the mitigating circumstance of "haber ejecutado el hecho en
vindicacion proxima de una ofensa grave, causada al autor del delito,"
cannot be appreciated in Benito's favor. As aptly stated by the ponente,
Justice Esguerra, Benito "had more than sufficient time to suppress his
emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal
Supremo (de Espaa) no ha apreciado la proximidad ... cuando la ofensa se
realizo por la maana y el delito tuvo lugar por la tarde (Sentencia de 11
noviembre 1921); por regla general no es proxima cuando transcurre tiempo
suficiente para la razon recobre su imperio sobreponiendose a la pasion

(Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si

falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio
1950). Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1
Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta
circunstancia atenuante en favor del autor de un homicidio cometido
'algunas horas despues de haberle invitado el interfecto a renir y golpeado
en el pecho con las manos', porque el tiempo transcurrido entre los golpes y
la muerte fue suficiente para que el animo del reo se serenase (Sentencia de
24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola
1182).
The six-hour interval between the alleged grave offense committed by
Moncayo against Benito and the assassination was more than sufficient to
enable Benito to recover his serenity. But instead of using that time to regain
his composure, he evolved the plan of liquidating Moncayo after office hours.
Benito literally ambushed Moncayo just a few minutes after the victim had
left the office. He acted with treachery and evident premeditation in
perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to
assassinate Moncayo was not the latter's alleged defamatory remark that the
Civil Service Commission compound was a hangout for a thief or for thieves
but the refusal of Moncayo to change his report so as to favor Benito. Benito
did not act primarily to vindicate an alleged grave offense to himself but
mainly to chastise Moncayo for having exposed the alleged anomalies or
defraudation committed by Benito and for obstinately refusing to change his
report.
Aggravating circumstance of disregard of rank. Benito contends that
disregard of rank should not be considered against him because there was
no evidence that he "deliberately intended to offend or insult the rank" of
Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil
Service Commission and that the killer was a clerk in the same office who
resented the victim's condemnatory report against him. In that situation, the
existence of the aggravating circumstance of "desprecio del respeto que por
la dignidad mereciere el ofendido" is manifest.

The instant case is similar to a case where the chief of the secret service
division killed his superior, the chief of police (People vs. Hollero, 88 Phil.
167) and to the killing of the acting Spanish consul by his subordinate, the
chancellor of the consulate, who had misappropriated the funds of the
consulate, which misappropriation was discovered by the victim (People vs.
Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was
aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.

G.R. Nos. 39708-09, People v. David, 60 Phil. 93

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
April 16, 1934
G.R.
Nos.
THE PEOPLE OF THE PHILIPPINE
vs.
LEOVIGILDO DAVID, defendant-appellant.

ISLANDS,

39708-09
plaintiff-appellee,

Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J Francisco for
appellant.
Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:
This case comprises two appeals taken by the defendant Leovigildo David
from the judgment rendered by the Court of First Instance of Bataan in
criminal cases Nos. 3310 (G.R. No. 39708) and 3296 (G.R. No. 39709), the
dispositive part of which reads as follows:

Wherefore, in criminal case No. 3310, for frustrated murder, the court finds
the defendant Leovigildo David guilty of frustrated murder, without any
aggravating nor mitigating circumstances and, therefore, sentences him to
twelve (12) years and one (1) day of reclusion temporal with the accessory
penalties of the law, to indemnify the offended party Jose V. Reyes in the sum
of one thousand pesos, with no subsidiary imprisonment in case of
insolvency, and to pay the costs.
The penalty of reclusion has been imposed instead of cadena following the
doctrine laid down in the case of People vs. Orifon (57 Phil., 594).
In criminal case No. 3296, for discharge of firearms with less serious physical
injuries, the court finds the defendant Leovigildo David guilty of the said
crime and sentences him to two (2) years, eleven (11 months and eleven
(11) days ofprision correccional, with the accessory penalties of the law, and
to pay the costs. So ordered.
In support of his appeal, the defendant-appellant assigns the following
alleged errors as committed by the trial court in its aforesaid decision, to wit:
1. In holding the defendant-appellant guilty of the crime of frustrated murder
in the above entitled case No. 3310, and consequently in sentencing him
to reclusion temporal, to indemnify the offended party and to pay the costs.
2. In holding the defendant-appellant guilty of the crime of discharged of
firearm with less serious physical injuries with which he was charged in the
above entitled case No. 3296 and sentencing him, by virtue of the same,
to prision correccional, with costs.
3. In adopting the prosecution's theory that the defendant, with deliberate
intent to kill Jose V. Reyes, fired from behind four revolver shots at the latter.
4. In not accepting the theory of the defense that the defendant, in firing his
revolver at the offended party, did not intend to kill the latter but he did so in
defense of his father and while the offended party was facing him.
5. In not acquitting the defendant-appellant of the charges in the two above
entitled case.

The two cases at bar arose from two informations filed by the provincial fiscal
of Bataan in the justice of the peace court of Dinalupihan, the one against
Leovigildo David and Teodoro David for frustrated murder committed on the
person of Jose V. Reyes at the time, place and in the manner described in the
corresponding information and the other against said Leovigildo David for
discharge of firearm with less serious physical injuries committed on the
person of German Pinili at the time, place and in the manner described in the
corresponding information. After preliminary investigations had been duly
conducted and the cases forwarded to the Court of First Instance of Bataan,
the same provincial fiscal filed the following informations:
On or about April 18, 1931, in the municipality of Dinalupihan, Province of
Bataan, Philippine islands, and within the jurisdiction of this Court of First
Instance, the abovenamed defendant Leovigildo David willfully, illegally and
criminally shot at German Pinili with his revolver, the bullet penetrating the
latter's left side and lodging itself in the left scapula, as a result of which said
German Pinili was under medical treatment for about 25 days.
That on or about April 18, 1931, in the barrio of Luacan, municipality
Dinalupihan, Province of Bataan, Philippine Islands, and within the
jurisdiction of this court, the said defendant, without any justifiable motive
whatsoever and with deliberate intent to kill Jose V. Reyes with treachery and
evident premeditation, willfully, illegally and criminally, fired four revolver
shots at Jose V. Reyes, who then had his back toward the defendant, inflicting
upon him a serious bullet wound at the back above the left clavicle, the
medical treatment of which lasted about seventy-seven (77) days, having
thereby performed all the acts of execution which should have, as a
consequence, produced the crime of murder on the person of the said Jose V.
Reyes, which, nevertheless, was not consummated by reason of causes
independent of the will of the said defendant. The offended party spent
about one thousand pesos for the treatment of his wound.
The defendant is a recidivist, having been formerly convicted of the offense
of less serious physical injuries in criminal case No. 2901 of this court, by
virtue of a final and executory judgment dated December 8, 1927, the
penalty of which was served by the said defendant.

Contrary to the provisions of article 403, in connection with those article 3,

paragraph 2, of the Penal Code, and with the aggravating circumstance of
recidivism.
From the documentary as well as the oral evidence presented at the joint
trial of the two case, the following pertinent facts, which are necessary for
the resolution of the questions raised in these appeals, have been proven
beyond reasonable doubt, to wit:
The herein defendant-appellant Leovigildo David is the son of Teodoro David,
ademocrata candidate for municipal president of Dinalupihan, and the
offended
party
Jose
V.
Reyes
is
the
brother
of
Emilio
Reyes, nacionalista candidate for member of the provincial board of Bataan,
both during the general elections of 1931.
While Emilio Reyes and Teodoro David were engaged in an argument after
the former had quarreled with the aforesaid defendant-appellant, then an
election inspector, because said Emilio Reyes wanted to see the list of
registered voters, Jose V. Reyes, the complaint in criminal case No. 3310 and
brother of Emilio Reyes, arrived at the scene and asked who was making
trouble. Upon hearing him, Teodoro David, in a contemptuous tone, said in
Tagalog: "Phse, ichura mong lalake" (Pshaw, you are but a shrimp) and,
opening the door of the car where he was, rushed upon his interlocutor and
the two engaged in a hand-to-hand fight during which both fell to the
ground. Teodoro David fell on his right side, face downwards, Jose V. Reyes on
top of him. The two constabulary soldiers present, who had arrived in the
same car with Teodoro David a few moments before, tried to prevent them
from coming to blows but due to the presence of many people who were
witnessing the quarrel, were unable to make timely intervention and
succeeded in separating the combatants only after they had already fallen to
the ground, Cirilo Dullas raising Jose V. Reyes and holding him aside, while
Esteban Aninang did the same to Teodoro David and took him to his car.
While Jose V. Reyes was on top Teodoro David, there was heard a first shot,
which did not hit its mark, fired by the herein defendant Leovigildo David,
later followed by another which hit the stock of the gun carried by the
constabulary soldier Cirilo Dullas in his right hand as he held Jose V. Reyes
with his left hand after separating the latter from Teodoro David. Upon
hearing the second shot and feeling the bullet hit the stock of his gun, Dullas

instinctively shoved Jose V. Reyes, whom he continued to hold by the left arm
with his left hand, causing the latter stagger and stoop to the right side, his
back toward the north whence the shots came. While Jose V. Reyes was thus
stooping, a third shot was heard, which hit the upper left hand side of Reyes'
body, whereupon he fell to the ground. Immediately thereafter, there rang a
fourth shot which hit the left axilla of the boy German Pinili, who was perched
on top of a fence witnessing the fight between Jose V. Reyes and Teodoro
David. Jose V. Reyes was immediately brought by his brother Emilio Reyes
and others to Dr. Gonzalo Nuguid's clinic in Orani, Bataan, where he was
given first aid, while the constabulary soldiers seized the revolver of the
defendant Leovigildo David and placed him under arrest. In the chamber of
the revolver of the defendant Leovigildo David were found four empty
cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the
incident, immediately ordered the seizure of Jose V. Reyes' revolver which
was found in a box in the latter's house, while he, accompanied by his
brother Emilio Reyes, was being treated by the doctor.
The first question to be decided in this appeal, in connection with the
criminal case for frustrated murder, is one of fact and consists in whether or
not Jose V. Reyes had his back toward Leovigildo David when the latter shot
at him.
The witnesses of the prosecution testified in the negative stating that when
the defendant fired the shot which hit Jose V. Reyes, the latter was on top of
Teodoro David, the defendant's father, and in the act of hitting Teodoro on
the forehead for the second time the butt of his revolver. The testimony of
the constabulary soldier Esteban Aninang, who stated that the violent shove
given Jose V. Reyes by his companion Cirilo Dullas caused the said Jose V.
Reyes to stagger and stoop to the right side and at the same time to turn his
back toward the defendant simultaneously with the third shot, corroborates
the testimony of the witnesses for the defense that Jose V. Reyes was facing
the defendant.
The second question of fact to be decided is whether or not Jose V. Reyes had
struck Teodoro David with the butt of his revolver, while the latter was under
him, and was in the act of striking said Teodoro David for the second time
when Leovigildo David fired the shot which hit him.

On this point, the testimony of the two constabulary soldiers, who may be
regarded as impartial witnesses, is unanimous in that when Jose V. Reyes
received the bullet wound, he was already standing far from Teodoro David
and beside the constabulary soldier Cirilo Dullas who had dragged him away
from said Teodoro David.
From the foregoing, it may be stated as a conclusion of fact that when
Leovigildo David fired the shot that hit Jose V. Reyes, the latter was facing
him, and if the bullet hit Jose V. Reyes on the back, it was due to the fact that
his position was changed upon being shoved by the constabulary soldier; and
that when the said complainant was already far from Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt
at the trial, constitute the crime of frustrated murder for which the defendant
Leovigildo David has been convicted and sentenced?
Inasmuch as the defendant fired the shot facing the victim and in the
presence of many people, he did not employ means, methods and forms in
the execution of the crime, which tend directly and specially to insure its
execution without risk to himself arising from the defense which the offended
party might make (article 10, No. 2, of the old Penal Code). The very fact that
Jose V. Reyes had been shoved by the constabulary soldier Cirilo Dullas
shows that he could have evaded the shot and thereby frustrate the
defendant's intent. Therefore, the circumstance of treachery was not present
in the commission of the crime.
Did the defendant Leovigildo David have the intention of killing Jose V.
Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself
from criminal liability (article 8, No. 5, of the old Penal Code). It has been
shown that when the said defendant fired at Jose V. Reyes, the aggression
had already ceased and, therefore, the motive for defense; and in firing at
his victim, the defendant's intention could not have been only to repel the
aggression against his father but also to kill Jose V. Reyes. Therefore, the
intention of the defendant Leovigildo David to kill Jose V. Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo
David, having intended to kill Jose V. Reyes, had performed all the acts of

execution which should have produced the latter's death, but did not
produce it by reason of causes independent of his will (article 3 of the old
Penal Code).
The doctors, who testified as experts on whether or not the wound received
by Jose V. Reyes was necessarily mortal, are not unanimous.
Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can
only make approximate statements, not accurate ones, because in order to
determine the seriousness of a wound a doctor should see the organs
internally affected by it. No doctor can with certainly state the seriousness of
a wound for it is determined only during the autopsy. . . . " (T. s. n., pp. 144,
145.) "On the basis of general principles, the wound was not mortal. The
general principles I am referring to relate to the mortal positions of the
organs and tissues." (T. s. n., pp. 151.) "Judging from the position of the
scars, I am of the opinion that the left lung was affected but the affected part
is near the border." "It would be perforated. The effect should be internal
hemorrhage but the flow of the blood would be mortal because the blood
vessels in that region are small." "All the wounds, including those caused at
the base of the lungs, are not mortal." (T. s. n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical
because he has seen nothing but the scars, but nevertheless he is of the
opinion that if the lung had been perforated, it would result in an internal
hemorrhage and the flow of the blood would be mortal because the blood
vessels of that part are small.
Dr. Afable, who may be said to have saved the offended party's life, testified
as follows: "Taking all the abovestated facts into consideration, I arrived at
the conclusion that the blood found in the lung of Mr. Reyes had its origin in
the injury or wound in the upper left part of the chest." (T. s. n., p. 6.) "I am
of the opinion that had not the fluid been drained from the patient's lung, it
could have caused his death, taking into consideration the condition in which
he was then found." (T. s. n., p. 8.) Answering a question regarding the
accumulation of the fluid in the pleural region due to the congestion of the
lung, he said: "That is one of the causes of death in this case, and a
continuous internal hemorrhage might cause death as well." (T. s. n., p. 16.)

From all the above expert testimony, it may be inferred that had it not been
for the timely and adequate medical intervention, the offended party Jose V.
Reyes would have succumbed from the wound in his lung. A wound that may,
by itself alone, produce a similar consequence, is mortal.
The defendant-appellant Leovigildo David, in firing his revolver and hitting
Jose V. Reyes on the upper left hand part of his body, piercing it from side to
side and perforating the lung, then performed all the acts of execution which
should have produced the latter's death but did not produce it by reason of
timely and adequate intervention of medical science, which was completely
independent of his will.
The facts proven at the trial as committed by the defendant-appellant
Leovigildo David constitute the crime of frustrated homicide, defined and
penalized in article 404 of the old Penal Code which was in force at the time
of the commission of the crime. The penalty prescribed by law for the said
crime, if consummated, is reclusion temporal in its full extent. Inasmuch as
the crime with which Leovigildo David is charged herein is merely frustrated,
the said penalty should be one degree lower, that is, prision mayor in its full
extent, the duration of which is from six years and one day to twelve years.
In order to determine the penalty, the presence of the mitigating
circumstance of immediate vindication of a grave offense committed against
an ascendant (article 9, No. 5, of the Penal Code) should be taken into
consideration, without any aggravating circumstance to compensate the
same, for which reason the said penalty should be imposed in its minimum
period, that is, from six years and one day to eight years ofprision
mayor (article 81, rule 2, of the Penal Code).
As to the offended party German Pinili, the evidence shows beyond
reasonable doubt that one of the shots fired by the defendant Leovigildo
David hit him on the left axilla, the treatment of the wound having lasted
about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not
aimed at him, however, it cannot be considered accidental because, it having
been voluntarily aimed at Jose V. Reyes, the defendant-appellant Leovigildo
David is liable for the consequences of his act, in accordance with the
provisions of article 1, paragraph 3, of the old Penal Code, which provides
that "any person voluntarily committing a felony (delito) or misdemeanor

(falta) shall incur criminal liability, although the wrongful act done be
different from that which he intended."
Although the crime, which the defendant Leovigildo David had intended to
commit against Jose V. Reyes, was homicide, the crime committed by him
against the boy German Pinili is discharge of firearms with less serious
physical injuries, and the penalty which should be imposed upon him is that
which corresponds to this complex crime, in its maximum period (article 64,
paragraph 2, of the old Penal Code). However, inasmuch as he is charged
only with the said complex crime, the only penalty that may be imposed
upon him is that corresponding to this offense of discharge of firearms with
less serious physical injuries, defined and penalized in article 408, in
connection with article 418 of the old Penal Code, with prision correccional in
its minimum and medium periods, that is, from six months and one day to
four years and two months, which should be imposed in its maximum period,
that is, from two years and two months, in accordance with the rule
established in article 89, paragraph 2, of the same Code. There being no
modifying circumstance to be taken into consideration, the said penalty
should be imposed in its medium period, that is, from three years, four
months and eight days to three years, nine months and three days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence
law, is applicable to the defendant-appellant, and consequently the
maximum of the penalty, which he should suffer in case No. 3310, should be
the maximum of that which should be imposed upon him under the law, that
is, eight years of prision mayor; and the minimum, a penalty embraced
within that next lower in degree to that prescribed by law for the crime of
frustrated homicide, which is prision correccional in its full extent, the
duration of which is from six months and one day to six years, that is one
year and one day of prision correccional. Therefore, the total extent of the
penalty to be imposed upon the defendant for the crime of frustrated
homicide should be from one year and one day to eight years.
In criminal case No. 3296, for the complex crime of discharge of firearms
with less serious physical injuries, the maximum of the penalty, which should
be imposed upon the defendant, is the maximum period of the penalty
prescribed by the law, that is, three years, nine months and three days
of prision correccional, and the minimum, four months and one day

of arresto mayor, a penalty embraced within that next lower in degree which
is arresto mayor in its medium and maximum periods, the duration of which
is from four months and one day to six months, and consequently the full
extent of the penalty which should be imposed upon him is from four months
and one day to three years, nine months and three days.
The total amount of the expenses incurred by the offended party for medical
assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the
defendant Leovigildo David is declared guilty of the crime of frustrated
homicide in criminal case No. 3310 of the Court of First Instance of Bataan
(G. R. No. 39709) and sentenced to one (1) year and one (1) day of prision
correccional to eight (8) years of prision mayor and to indemnify the
offended party Jose V. Reyes for damages in the sum of P1,030.79; and in
criminal case No. 3296 of the said Court of First Instance of Bataan (G.R. No.
39708), he is declared guilty of the crime of discharged of firearms with less
serious physical injuries, and sentenced to four months and one day to three
years, nine months and three days, with the costs of both instances in the
two cases against the appellant. So ordered.
Malcolm, Abad Santos, Butte and Diaz, JJ., concur.

G.R. No. 4971, U.S. v. Hicks, 14 Phil. 217

Republic
of
SUPREME
Manila
EN BANC

the

Philippines
COURT

September 23, 1909

G.R.
No.
THE
UNITED
vs.
AUGUSTUS HICKS, defendant.
Office
of
the
Solicitor-General
Jose Robles Lahesa for defendant.

4971
STATES, plaintiff,

Harvey

for

plaintiff.

TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus
Hicks, an Afro-American, and Agustina Sola, a Christian Moro woman, illicitly
lived together in the municipality of Parang, Cotabato, Moro Province, until
trouble arising between them in the last-mentioned month of 1907, Agustina
quitted Hick's house, and, separation from him, went to live with her brotherin-law, Luis Corrales. A few days later she contracted new relations with
another negro named Wallace Current, a corporal in the Army who then went
to live in the said house.
On the 21st of December following, at about 7:30 p. m., Augustus Hicks
together with a soldier named Lloyd Nickens called at said house, and from
the sala called out to his old mistress who was in her room with Corporal
Current, and after conversing with her in the Moro dialect for a few minutes,
asked the corporal to come out of said room; in response thereto the
corporal appeared at the door of the room, and after a short conversation,
Current approached Hicks and they shook hands, when Hicks asked him the
following question: "Did I not tell you to leave this woman alone?," to which
Current replied: "That is all right, she told me that she did not want to live
with you any longer, but if she wishes, she may quit me, and you can live
with her." The accused then replied: "God damn, I have made up my mind;"
and as Corporal Current saw that Hicks, when, he said this, was drawing a
revolver from his trousers' pocket, he caught him by the hand, but the latter,
snatching his hand roughly away, said: "Don't do that," whereupon Current
jumped into the room, hiding himself behind the partition, just as Hicks drew
his revolver and fired at Agustina Sola who was close by in the sala of the
house. The bullet struck her in the left side of the breast; she fell to the
ground, and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to
render assistance and wrested the weapon from the hand of the accused.
The latter immediately fled from the house and gave himself up to the chief
of police of the town, H. L. Martin, asking him to lock him up in jail; and,
when a few minutes later a policeman came running in and reported that
Hicks had fired a shot at Agustina, the said chief of police caused Hicks to be
arrested. The latter, when once in jail, threw eight revolver cartridges out of
the window; these were picked up by a policeman who reported the
occurrence and delivered the cartridges to his chief.

In view of the foregoing the provincial fiscal on the 8th of February, 1908,
filed a complaint with the Court of First Instance of said province charging
Augustus Hicks with the crime of murder. Proceedings were instituted, the
trial court, after hearing the evidence adduced, entered judgment on the
10th of September of the same year, sentencing the accused to the penalty
of death, to be executed according to the law, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs. The case has been
submitted to this court for review.
The above-stated facts, which have been fully proven in the present case,
constitute the crime of murder, defined and punished by article 403 of the
Penal Code, in that the woman Agustina Sola met a violent death, with the
qualifying circumstance of treachery (alevosia), she being suddenly and
roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at
close, if not point blank range, while the injured woman was unarmed and
unprepared, and at a time when she was listening to a conversation, in which
she was concerned, between her aggressor and third person, and after usual
and customary words had passed between her and her aggressor. From all of
the foregoing it is logically inferred that means, manners, and forms were
employed in attack that directly and specially insured the consummation of
the crime without such risk to the author thereof as might have been offered
by the victim who, owing to the suddenness of the attack, was doubtless
unable to flee from the place where she was standing, or even escape or
divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his
exculpatory allegations which were certainly not borne out at the trial, the
evidence in the case is absolutely at variance therewith and conclusively
establishes, beyond peradventure of doubt, his culpability as the sole fully
convicted author of the violent and treacherous death of his former mistress,
Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of
Current, who had seized him, he fell backward but managed to support
himself on his two hands, and when he got up again the said corporal
threatened him with a revolver thrust into his face; whereupon he also drew
his revolver, just as Edward Robinson caught him from behind, when his
revolver went off, the bullet striking the deceased.

This allegation appears to be at variance with the testimony of the witnesses

Wallace Current, Edward Robinson, Luis Corrales, and Lloyd Nickens in their
respective declaration, especially with that of the second and third, who
witnessed the actual firing of the shot by the aggressor at the deceased, as
shown by the fact that Robinson immediately approached the accused in
order to take his weapon away from him which he succeeded in doing after a
brief struggle, whereupon the aggressor ran out of the house. Thus, the shot
that struck the deceased in the breast and caused her death was not due to
an accident but to a willful and premeditated act on the part of the aggressor
with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to,
the presence of other aggravating circumstances, such as premeditation,
and the fact that the crime was committed in the dwelling of the deceased
should be taken into consideration. The last-mentioned circumstances
appears proven from the testimony of several witnesses who were examined
at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as
committed with treachery, the circumstance of premeditation should only be
considered as a merely generic one. Premeditation is, however, manifest and
evident by reason of the open acts executed by the accused. According to
the testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave
from the former to be absent from the canteen where he was working on the
morning of the day when the affray occurred, alleging that his mind was
unsettled and that he feared getting into trouble. It is also shown by the fact
that Whited, who was in Hicks' house about noon upon the latter's invitation,
and while both where drinking gin, and while the revolver, the instrument of
the crime, was lying on the table on which were also several loaded
cartridges, heard the accused repeatedly say, referring to the deceased, that
her time had come, adding that he would rather see her dead than in the
arms of another man, and when the accused went to bed apparently very
much worried, and refusing to answer when called, the witness left him. On
the day after the crime the police found on a table in the cuprit's house
several loaded cartridges, a bottle of oil and a piece of cloth used
undoubtedly for cleaning the revolver.

All the foregoing circumstances conclusively prove that the accused,

deliberately and after due reflection had resolved to kill the woman who had
left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a
clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be a proper
manner, disguising his intention and claiming her by his apparent repose and
tranquility, doubtless in order to successfully accomplish his criminal design,
behaving himself properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating
circumstances is present, not even that mentioned in paragraph 7 of article 9
of the Penal Code, to wit loss of reason and self-control produced by jealousy
as alleged by the defense, inasmuch as the only causes which mitigate the
criminal responsibility for the loss of self-control are such as originate from
legitimate feelings, not those which arise from vicious, unworthy, and
immoral passions.
From the foregoing considerations, and as the judgment appealed from is in
accordance with the law, it is our opinion that the same should be affirmed,
as we do hereby affirm it with costs, provided, however, that the death
penalty shall be executed according to the law in force, and that in the event
of a pardon being granted, the culprit shall suffer the accessory penalties of
article 53 of the Penal Code unless the same be expressly remitted in the
pardon. So ordered.
G.R. No. L-7094

March 29, 1912

THE
UNITED
vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C.
Fisher
for
Acting Attorney-General Harvey for appellee.
CARSON, J.:

STATES, plaintiff-appellee,

appellant.

The guilt of the defendant and appellant of the crime of homicide of which he
was convicted in the court below is conclusively established by the
evidenced of record.
The trial court was of opinion that its commission was not marked by either
aggravating or extenuating circumstances, and sentenced the convict to
fourteen years eight months and one day of reclusion temporal, the medium
degree of the penalty prescribed by the code. Burt we are of opinion that the
extenuating circumstance set out in subsection 7 of article 9 should have
been taken into consideration, and that the prescribed penalty should have
been imposed in its minimum degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx

xxx

xxx

That of having acted upon an impulse so powerful as naturally to have

produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed
the deceased, who had theretofore been his querida (concubine or lover)
upon discovering her in flagrante in carnal communication with a mutual
acquaintance. We think that under the circumstances the convict was
entitled to have this fact taken into consideration in extenuation of his
offense under the provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as
set forth in its sentence of July 4, 1892, which is summarized by Viada (p. 69,
in question 19, art. 9 of vol. 6) as follows:
Shall he who kills a woman with whom he is living in concubinage for
having caught her in her underclothes with another party and
afterwards shoots himself, inflicting a serious wound, be responsible for
that crime with the extenuating circumstance of having acted with
violent passion and obfuscation? The Audiencia of Santiago de Cuba
did not so hold and its judgment was reversed by the supreme court
for the improper disregard of article 9, number 8, of the Penal Code for
Cuba and Puerto Rico: "The facts held to be true by the trial court, and
which were the immediate cause of the crime by producing in the
accused strong emotion which impelled him to the criminal act and
even to attempt his own life, were a sufficient impulse in the natural

and ordinary course to produce the violent passion and obfuscation

which the law regards as a special reason for extenuation, and as the
judgment did not take into consideration the 8th circumstance of
article 9 of the code, the Audiencia rendering it seems to have violated
this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that
the "causes which mitigate the criminal responsibility for the loss of selfcontrol are such as originate from legitimate feelings, not those which arise
from vicious, unworthy, and immoral passions," and declined to give the
benefit of the provisions of this article to the convict in that case on the
ground that the alleged causes for his loss of self-control did not "originate
from legitimate feelings." But in that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused,
deliberately and after due reflection had resolved to kill the woman
who had left him for another man, and in order to accomplish his
perverse intention with safety, notwithstanding the fact that he was
already provided with a clean and well-prepared weapon and carried
other loaded cartridges besides those already in his revolver, he
entered the house, greeting everyone courteously and conversed with
his victim, in what appeared to be in a proper manner, disguising his
intention and calming her by his apparent repose and tranquility,
doubtless in order to successfully accomplish his criminal design,
behaving himself properly as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the
aggressor was the convict's vexation, disappointment and deliberate anger
engendered by the refusal of the woman to continue to live in illicit relations
with him, which she had a perfect right to do; his reason for killing her being
merely that he had elected to leave him and with his full knowledge to go
and live with another man. In the present case however, the impulse upon
which defendant acted and which naturally "produced passion and
obfuscation" was not that the woman declined to have illicit relations with
him, but the sudden revelation that she was untrue to him, and his discovery
of her in flagrante in the arms of another. As said by the supreme court of
Spain in the above-cited decision, this was a "sufficient impulse" in the
ordinary and natural course of things to produce the passion and obfuscation
which the law declares to be one of the extenuating circumstances to be
taken into consideration by the court.

Modified by a finding that the commission of the crime was marked with the
extenuating circumstance set out in subsection 7 of article 9, and by the
reduction of the penalty of fourteen years eight months and one day
ofreclusion temporal to twelve years and one day of reclusion temporal, the
judgment of conviction and the sentence imposed by the trial court should
be and are hereby affirmed, with the costs of this instance against the
appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
G.R. No. L-46530

April 10, 1939

THE
PEOPLE
OF
THE
vs.
CATALINO RABAO, defendant-appellant.

PHILIPPINES, plaintiff-appellee,

Jose
F.
Oreta
for
appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for
appellee.
IMPERIAL, J.:
This is an appeal from a judgment of the Court of First Instance of Camarines
Sur convicting the appellant of the crime of parricide and sentencing him to
an indeterminate penalty of from eight years and one day of prision mayor to
twenty years of reclusion temporal, to indemnify the heirs of the deceased in
the sum of P1,000 and to pay the costs.
The information filed by the acting provincial fiscal of said province charged
the defendant with parricide for having killed his wife Salvacion Agawa on
December 15, 1937, in the municipality of Naga, Province of Camarines Sur,
which crime was committed with evident premeditation and abuse of
superior strength.
The defendant and the deceased Salvacion Agawa were married before the
justice of the peace of Naga on January 15, 1936 and had since been born to
the marriage. Since their marriage they had made their home in the house of
Urbano Rellora, who lived maritally with the mother of the accused. On the
morning of December 15, 1937, when the defendant was hardly awake after
staying up late the previous night on account of the elections held in the
municipality of Naga, he noticed that his wife was preparing water with

which to give the child a bath. He told his wife not to bathe the child because
it had a cold, but the wife insisted and a quarrel arose in the heat of which
the accused punched his wife on the abdomen. She fell seated on a sack of
rice nearby and immediately suffered an attack of which she died in spite of
the aid rendered her by the accused himself and other persons who had
arrived. The following morning Dr. Vicente Roxas performed an autopsy and
found that the spleen of the deceased had been hypertrophied due to an
acute and chronic malaria from which she had been suffering, and that death
was caused by the hemorrhage of the spleen when it was ruptured as a
consequence of an external blow on the abdomen which might have been
that delivered by the accused.
The defense alleges that the lower court erred in declaring that the accused
hit the deceased on the abdomen, which caused her death, instead of finding
him, at most, guilty of parricide through reckless imprudence.
After an examination of the evidence, we are of the opinion that the lower
court did not err in finding that the accused hit the deceased on the
abdomen which directly caused the rupture of her spleen producing thereby
an internal hemorrhage that caused her almost instant death. Urbano Rellora
who, as stated before, was the owner of the house where the defendant and
the deceased lived and who maintained marital relations with the mother of
the accused, testified positively that he saw the accused punched his wife on
the abdomen, as a result of which she fell seated on a sack of rice and that
very moment she had an attack, became unconscious and expired. This
testimony is corroborated by Dr. Roxas who performed the autopsy, when he
declared that the death was caused by the hemorrhage produced by the
rupture of the spleen which rupture was caused by an external blow on the
abdomen of the deceased. The defendant himself, in his sworn declaration
(Exhibit C) subscribed before the justice of the peace of Naga, voluntarily
admitted having hit his wife on the abdomen with his fist when she said
things that offended and made him nervous. The aggression was likewise
corroborated by another eye-witness, Raymundo Hilano, who declared that
he was at that time passing in front of the defendant's house when he heard
and saw him quarrelling with his wife and that the defendant was delivering
blows on his wife. The testimony of this witness however, seems incredible
and deserves no merit for he testified having seen the aggression through a
window which was three and a half meters high from the ground where he
stood. Considering the height of the window and the location of the witness,
it is clear that he could not have seen what was happening inside the house.

The defendant's act is not mere reckless imprudence, as the defense

contends, since under article 365 of the Revised Penal Code the acts that go
to make up reckless imprudence must be lawful in themselves, and the
attack consisting in the blow the defendant dealt his wife is certainly not
lawful, since it transgresses the Revised Penal Code itself, which expressly
prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by article 246 of
the Revised Penal Code, and in its commission there were present the
following mitigating circumstances considered by the lower court in favor of
the defendant: lack of intention to commit so grave a crime (article 13 [3],
Revised Penal Code); having acted upon an impulse so powerful as naturally
to have produced passion or obfuscation (article 13 [6]); having surrendered
himself to the authorities immediately after the commission of the crime
(article 13 [7]); with no aggravating circumstance. As to the penalty
imposed, we find that it is not in accordance with that prescribed by the law.
Under article 246 of the Revised Penal Code the crime of parricide is
punished with reclusion perpetua to death. These penalties are indivisible
and the Revised Penal Code provides, in article 63, rule 3, that whenever
there is present some mitigating circumstance with no aggravating one, the
lesser penalty shall be applied. In conformity with this legal provision, the
penalty that should be imposed on the accused is that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did not really
have the intention of committing so grave a crime as parricide. The quarrel
that led to the aggression had its origin from the natural and justifiable
desire of the defendant, as a father, to prevent his child, which was then ill,
from being given a bath. If, under the circumstances, he transgressed the
law by an unjust attack on his wife, he is, nevertheless, deserving of the
mitigating circumstances allowed in his favor. We invoke, for this reason,
article 5, paragraph 2, of the Revised Penal Code, and recommended to his
Excellency, the President of the Philippines, the commutation of the penalty
imposed on the defendant in this decision.
Modifying the appealed judgment, we declare the defendant Catalino Rabao
guilty of the crime of parricide and hereby sentenced him to reclusion
perpetua, and to the accessory penalties provided in article 41 of the Revised
Penal Code, to indemnify the heirs of the deceased in the amount of P1,000,
and to pay the costs in both instances. So ordered.

PEOPLE
OF
THE
DAWATON, accused.

PHILIPPINES, plaintiff,

vs. EDGAR

DECISION
BELLOSILLO, J.:
EDGAR DAWATON was found by the trial court guilty of murder qualified
by treachery and sentenced to death, ordered to indemnify the heirs of the
victim P50,000.00 plus the accessory penalties provided by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs of suit.[1]
An Information[2] for murder qualified by treachery and evident
premeditation was filed against Edgar Dawaton on 11 March 1999. When first
arraigned he pleaded not guilty, [3] but during the pre-trial on 7 May 1999, he
offered to plead guilty to the lesser offense of homicide but was rejected by
the prosecution, hence, the case proceeded to trial.
The prosecution presented as witnesses the very persons who were with
the accused and the victim during the incident, namely, Domingo Reyes and
Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the
mother of the victim, to prove the civil liability of the accused.
The evidence for the prosecution: On 20 September 1998 Esmeraldo
Cortez was entertaining visitors in his house in Sitio Garden, Brgy. Paltic,
Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre Leonides
Lavares dropped by at about 12:00 o'clock noon followed by Domingo Reyes
shortly after. All three (3) guests of Esmeraldo were residents of Sitio
Garden. They started drinking soon after. At about 3:00 o'clock in the
afternoon and after having consumed four (4) bottles of gin, they went to the
house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters
away from Esmeraldo's house. They stayed at the balcony of the house and
continued drinking. Amado Dawaton was not in.
Already drunk, Leonides decided to sleep on a papag or wooden bench,
lying down on his right side facing Domingo and Edgar using his right hand
for a pillow. Edgar, Domingo and Esmeraldo continued drinking until they
finished another bottle of gin.
At about 3:30 in the afternoon, twenty (20) minutes after Leonides had
gone to sleep, Edgar stood up and left for his house. When he returned he

brought with him a stainless knife with a blade 2 to 3 inches long. Without a
word, he approached Leonides who was sleeping and stabbed him near the
base of his neck.[4] Awakened and surprised, Leonides got up and blurted:
"Bakit Pare, bakit?"[5] Instead of answering, Edgar again stabbed Leonides on
the upper part of his neck, spilling blood on Leonides' arm.
Leonides attempted to flee but Edgar who was much bigger grabbed the
collar of his shirt and thus effectively prevented him from running
away. Edgar then repeatedly stabbed Leonides who, despite Edgar's firm
hold on him, was still able to move about twenty (20) meters away from the
house of Amado Dawaton before he fell to the ground at the back of
Esmeraldo's house. But even then, Edgar still continued to stab him. Edgar
only stopped stabbing Leonides when the latter already expired. Edgar then
ran away towards the house of his uncle Carlito Baras situated behind the
cockpit.
Domingo and Esmeraldo were positioned a few meters away from where
Leonides was sleeping when he was initially assaulted by Edgar. They were
shocked by what happened but other than pleading for Edgar to stop they
were unable to help Leonides.
Domingo left for his house soon after the stabbing started as he did not
want to get involved. Nonetheless he felt pity for Leonides so he returned a
few minutes later.
By then, Leonides was already dead and people had already gathered at
the site. The mayor who was in a nearby cement factory arrived and
instructed them not to go near the body.They pointed to the direction where
Edgar fled. Edgar was later arrested at the house of his uncle, Carlito Baras,
at Sitio Aves, Brgy. Paltic, Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the
defense. He did not deny that he stabbed Leonides Lavares but insisted that
he was provoked into stabbing him. Edgar claimed that the night prior to the
stabbing incident, or on 19 September 1998, his uncle Armando Ramirez
went to his house to welcome his return from Cavite where he worked as a
carpenter. They started drinking gin at about 7:00 o'clock in the evening and
ended at 3:00 o'clock in the morning of the following day. He slept and woke
up at 6:00 o'clock in the morning of 20 September 1998.

Apparently, he did not have enough of the prior evening's drinking

orgy. He went to his uncle's house early that morning and after his uncle
bought two (2) bottles of gin they started drinking again. Domingo Reyes
arrived at around 7:30 in the morning and joined them. Esmeraldo Cortez
joined them about 12:00 o'clock noon and bought two (2) more bottles of
gin.Later, the group with the exception of Armando Ramirez transferred to
the house of Esmeraldo upon the latter's invitation and drank two (2) more
bottles of gin.
In Edgar's version of the stabbing incident, a drunk and angry Leonides
arrived at about 2:30 in the afternoon and demanded that they - he and
Edgar - return candles (magbalikan [tayo] ng kandila).[6] Leonides was
godfather of a son of Edgar. Leonides also cursed and threatened to hang a
grenade on Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako ng
granada at sasabitan kita!).[7]
According to Edgar, he tried to calm down Leonides but the latter insisted
on going home purportedly to get a grenade. Alarmed because he knew
Leonides had a grenade, Edgar went home to look for a bladed weapon. He
already had a knife with him but he thought it was short. Not finding another
weapon, he returned to Esmeraldo's house.
When he returned, Leonides was still in Esmeraldo's house and had
joined in the drinking. He sat opposite Leonides who resumed his tirades
against him.
Again Leonides started to leave for his house purportedly to get a
grenade. Afraid that Leonides would make good his threat, Edgar held on to
him and stabbed him. He did not know where and exactly how many times
he struck Leonides but he recalled doing it three (3) times before his mind
went blank (nablangko).[8] Edgar also claimed that he was in this mental
condition when he left Leonides and ran to the house of Carlito Baras. He did
not know that he had already killed Leonides, only that he stabbed him
thrice. He regained his senses only when he reached his uncle Carlito's
house.
Edgar further said that he sought his uncle's help so he could surrender
but he was told to wait because his uncle was then taking a bath. It was
while waiting for his uncle when the policemen arrived to arrest him. He
maintained that he voluntarily went with them.

The medico-legal certificate dated 24 September 1998 issued by Dr.

Ernesto C. del Rosario[9] showed that the victim sustained a stab wound at
the back and ten (10) stab wounds in front. He also had slash wounds on his
left hand and his tongue was cut off. The immediate cause of death was
determined to be "Hypovolemic Shock due to hemorrhage, multiple stabbed
(sic) wounds."[10]
On 20 October 1999 the parties entered into several stipulations which
were embodied in an Order.[11] Specifically, they admitted the veracity of
the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2
Ramil D. Gamboa and PO3 Gerry M. Fabros, [12] the police officers who
arrested the accused; the genuineness and due execution of the medicolegal certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity of
the certificate of death[13] also issued by Dr. del Rosario. Thus, the
presentation of the arresting officers and Dr. del Rosario as witnesses was
dispensed with.
On 20 November 1999 the trial court convicted Edgar Dawaton of murder
qualified by treachery and sentenced him to death.
We affirm the conviction of accused-appellant; we however modify the
penalty imposed on him.
The conclusion that accused-appellant murdered Leonides Lavares was
sufficiently proved by the testimonies of prosecution witnesses Domingo
Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was
not refuted by the accused himself who admitted that he stabbed the victim
three (3) times before his mind went blank and could no longer recall what
he did after that.
Treachery clearly attended the killing. The accused attacked the victim
while the latter was in deep slumber owing to the excessive amount of
alcohol he imbibed. We are not persuaded by the version of the accused that
the victim threatened to harm him with a grenade and that it was only to
prevent this from happening that he was forced to stab Leonides. We defer
instead to the judgment of the trial court which gave more credence to the
version of the prosecution witnesses inasmuch as it was in a better position
to decide on the question of credibility, having heard the witnesses
themselves and observed their deportment during trial.

According to the prosecution witnesses, the victim had no chance to

defend himself as he was dead drunk and fast asleep. He had no inkling at all
of what was going to happen to him since there was no prior argument or
untoward incident between him and the accused. From all indications they
were on friendly terms; as in fact they were even kumpadres. No one knew
nor expected that when the accused momentarily excused himself, it was for
the purpose of looking for a knife, and without any warning, stabbing the
victim who was sleeping.
There is treachery when the attack is upon an unconscious victim who
could not have put up any defense whatsoever, [14] or a person who was dead
drunk and sleeping on a bench and had no chance to defend himself.
[15]
Clearly, the attack was not only sudden but also deliberately adopted by
the accused to ensure its execution without risk to himself.
The accused argues that trial court erred in imposing the death penalty
despite the attendance of mitigating and alternative circumstances in his
favor.[16] He avers that he is entitled to the mitigating circumstance of plea of
guilty. We disagree. While the accused offered to plead guilty to the lesser
offense of homicide, he was charged with murder for which he had already
entered a plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating
circumstance under the provisions of Art. 13 ofThe Revised Penal
Code because to be voluntary the plea of guilty must be to the offense
charged.[17]
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal
Procedure requires the consent of the offended party and the prosecutor
before an accused may be allowed to plead guilty to a lesser offense
necessarily included in the offense charged. We note that the prosecution
rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of voluntary
surrender as he himself admitted that he was arrested at his uncle's
residence.[18] The following elements must be present for voluntary surrender
to be appreciated: (a) the offender has not been actually arrested; (b) the
offender surrendered himself to a person in authority, and, (c) the surrender
must be voluntary.[19]
Resorting to sophistry, the accused argues that he was not arrested
but "fetched" as he voluntarily went with the policemen when they came for

him. This attempt at semantics is futile and absurd. That he did not try to
escape or resist arrest after he was taken into custody by the authorities did
not amount to voluntary surrender. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt
or because he wishes to save them the trouble and expense necessarily
included in his search and capture. [20] It is also settled that voluntary
surrender cannot be appreciated where the evidence adduced shows that it
was the authorities who came looking for the accused.[21]
Moreover, the evidence submitted by the prosecution belies the claim of
the accused that he intended to submit himself to the authorities. The joint
affidavit of the arresting officers, the veracity of which was admitted by the
parties and evidenced by a 20 October 1999 Order of the trial court,
revealed that they chanced upon the accused trying to escape from the rear
of the cockpit building when they came looking for him.[22]
Similarly, there is no factual basis to credit the accused with the
mitigating circumstance of outraged feeling analogous or similar [23] to
passion and obfuscation.[24] Other than his self-serving allegations, there was
no evidence that the victim threatened him with a grenade. Domingo Reyes
and Esmeraldo Cortez testified that there was no prior altercation or
disagreement between Edgar and Leonides during the drinking spree, and
they did not know of any reason for Edgar's hostility and violence. On the
contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful
banter (lambingan) during the course of their drinking [25] indicating that the
attack on the accused was completely unexpected.
The accused would want us to reconsider the penalty imposed on him on
account of his not being a recidivist. He contends that an appreciation of this
factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating circumstance the
presence of which increases the penalty. The converse however, that is, nonrecidivism, is not a mitigating circumstance which will necessarily reduce the
penalty. Nonetheless, we hold that the trial court erred in not appreciating
the alternative circumstance of intoxication in favor of the accused.Under
Art. 15 of The Revised Penal Code, intoxication of the offender shall be
considered as a mitigating circumstance when the offender commits a felony
in a state of intoxication, if the same is not habitual or subsequent to the

plan to commit said felony. Otherwise, when habitual or intentional, it shall

be considered as an aggravating circumstance.
The allegation that the accused was drunk when he committed the crime
was corroborated by the prosecution witnesses. The accused and his drinking
companions had consumed four (4) bottles of gin at the house of Esmeraldo
Cortez, each one drinking at least a bottle. [26] It was also attested that while
the four (4) shared another bottle of gin at the house of Amado Dawaton, it
was the accused who drank most of its contents. [27] In addition, Esmeraldo
testified that when Edgar and Leonides arrived at his house that noon, they
were already intoxicated.[28] There being no indication that the accused was a
habitual drunkard or that his alcoholic intake was intended to fortify his
resolve to commit the crime, the circumstance of intoxication should be
credited in his favor.
Consequently, we find that the trial court erroneously imposed the
penalty of death. The accused was charged with murder for which the law
provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3,
of The Revised Penal Code, in all cases in which the law prescribes a penalty
composed of two (2) indivisible penalties, such as in this case, when the
commission of the act is attended by a mitigating circumstance and there is
no aggravating circumstance, the lesser penalty shall be applied. Since no
aggravating circumstance attended the killing but there existed the
mitigating circumstance of intoxication, the accused should be sentenced
only to the lesser penalty of reclusion perpetua.
The trial court correctly ordered the accused to pay civil indemnity in the
amount of P50,000.00 to the heirs of the victim without need of proof other
than the fact that a crime was committed resulting in the death of the victim
and that the accused was responsible therefor.[29] The heirs are also entitled
to moral damages pursuant to Art. 2206 of the New Civil Code on account of
the mental anguish which they suffered, and the amount of P50,000.00 is
considered reasonable according to existing jurisprudence. [30]
WHEREFORE, the assailed Decision of the court a quo finding the
accused EDGAR DAWATON guilty of MURDER qualified by treachery is
AFFIRMED with the modification that the penalty is reduced from death
to reclusion perpetua. The accused is ordered to pay the heirs of Leonides
Lavares P50,000.00 in civil indemnity and P50,000.00 in moral damages.
SO ORDERED.

PEOPLE
OF
THE
PHILIPPINES, appellee,
VIERNES y ILDEFONSO, appellant.

vs. ELADIO

DECISION
PANGANIBAN, J.:
Under the Rules of Court, a judgment of conviction in a criminal
prosecution may be modified only upon motion of the accused. As a rule, the
prosecution is prohibited from seeking, and the trial court from granting, a
more severe penalty than that imposed in the original decision. This is
especially true in a case in which the new and amended penalty imposed is
death.
The Case
Before us is an appeal[1] from the April 6, 1998 Decision and the May 21,
1998 Order[2] of the Regional Trial Court (RTC) of Lipa City (Branch 12) in
Criminal Case Nos. 0532-97, 0533-97 and 0534-97.The assailed Decision
convicted appellant of two counts of rape and one count of attempted
rape. It disposed as follows:
WHEREFORE, the Court finds the accused, ELADIO VIERNES y
ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of
the crime of Rape, as defined and penalized under Article 335, par. 3 of the
Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act
No. 4111; in Crim. Case No. 0533-97 of the crime of Attempted Rape, as
defined and penalized under Article 335, par. 3 in relation to Article 51 of the
Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act
No. 4111; and, in Crim. Case No. 0534-97 of the crime of Rape, as defined
and penalized under Article 335, par. 1 of the Revised Penal Code, as
amended by Republic Act No. 2532 and Republic Act No. 4111, and
sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to
indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as
moral damages pursuant to Article 2219 (3) of the Civil Code, as well as
exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of
the same Code and the costs of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as
Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as
Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and
to pay the costs of this suit; and

3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to

indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00
as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as
exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of
the same Code and the costs of this suit.[3]
On the other hand, the assailed Order increased the penalties as follows:
WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,
guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of
Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal
Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the
crime of Attempted Rape, as defined and penalized under Article 335, par. 3
in relation to Article 51 of the Revised Penal Code, as amended by Republic
Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined
and penalized under Article 335, par. 1 of the Revised Penal Code, as
amended by Republic Act No. 7659, and sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to
indemnify CATHERINE LINATOC in the amount of P50,000.00, to
pay P10,000 as moral damages pursuant to Article 2219 (3) of
the Civil Code, as well as exemplary damages in the amount
of P5,000.00 pursuant to Article 2229 of the same Code and the
costs of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN
(10) YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc
in the amount of P25,000.00 and to pay the costs of this suit; and
3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to
indemnify Catherine Linatoc in the amount of P50,000.00, to
pay P10,000.00, as moral damages pursuant to Article 2219 (3)
of the Civil Code, the amount of P5,000.00, as exemplary
damages, pursuant to Article 2229 of the same Code and the
costs of this suit.[4]
Three criminal Complaints, all dated August 21, 1997, were filed by
Catherine Linatoc (assisted by her mother Lina Dela Cruz-Linatoc) before
Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in
Criminal Case No. 0532-97 charged appellant with rape committed as
follows:
That on or about the 29th day of September, 1996 at about 10:00 oclock in
the morning at Barangay Tibig, Lipa City, Philippines and within the

jurisdiction of this Honorable Court, the above-named accused, being then

the common law husband of the mother of the victim, did then and there
willfully, unlawfully and feloniously, by means of force and intimidation have
carnal knowledge of the undersigned complainant who is a minor below 12
years old, against her will and consent to her damage and prejudice in such
amount as may be awarded to her under the provision of the Civil Code.[5]
The Complaint in Crim. Case No. 0534-97 likewise charged him with
consummated rape:
That on or about the 18th day of August 1997 at about 12:00 oclock noon, at
Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then the common law
husband of the mother of the victim, did then and there wilfully, unlawfully
and feloniously, by means of force and intimidation have carnal knowledge of
the undersigned complainant who is a minor of 12 years old against her will
and consent to her damage and prejudice in such amount as may be
awarded to her under provisions of the Civil Code.[6]
Finally, in Criminal Case No. 0533-97, appellant was charged with
attempted rape:
That on or about the month of March 1997, around noon time, at Barangay
Tibi, Lipa City, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, being then the common law husband of the
mother of the victim, by means of force and intimidation and with lewd
design pursuant to his carnal desire, did then and there willfully, unlawfully
and feloniously commence the commission of the felony of rape directly by
overt acts against the undersigned complainant who is a minor below 12
years old, by then and there undressing her and going on top of her with his
exposed private organ but did not perform all the acts of execution which
should have produced the said felony because the undersigned offended
party resisted.[7]
Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional
Trial Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch
85 of the same court. Later, all the cases were consolidated in Branch 12.[8]
On arraignment, appellant pleaded not guilty. [9] After trial in due course,
the lower court rendered the assailed Decision.
In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval
asked that the imposed penalties be increased pursuant to Republic Act (RA)
No. 7659. The RTC granted the Motion via the assailed Order.
The Facts

Version of the Prosecution

In its Brief,[10] the Office of the Solicitor General presents the following
narration of facts:
Catherine Linatoc stood quietly by the door of the toilet of appellants her
mothers common-law husband house. Her skirts hemlines were slowly falling
to her knees vainly covering the panty that were pulled down mid-way her
lower legs. This was the third of a series of dismaying sex that she and
appellant had been through. Like the others before this one, there was by
appellant much pulling, shoving and forcible grasping of her hands, thus
rendering her immobile for three minutes or so.
The third rape happened in appellants house in Tibig, Lipa City, around
noontime of August 18, 1997. Appellant then bidded [sic] the two brothers
and a step-brother of Catherine Linatoc to clean the his tricycle, which was
parked on the side of the street across his house. They followed his
order. Appellant also instructed Catherine Linatoc to fetch water for the
house toilet. She obliged, returning with two pails of it. She deposited them
by the door of the toilet. Turning about, Catherine Linatoc was surprised to
find appellant behind her. In quick succession, appellant pushed her to the
wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed
his own pants down. Grasping her hands tightly with one hand, appellant
began inserting his penis into her vagina. She resisted to no avail. His penis
established a comfortable slide into and out of her [organ], as the pace
quickened for about three minutes. The gyration was furious. After appellant
spurted out, he backed off and left saying nothing.
Frightened and crying, Catherine Linatoc went to her great-grandmothers
abode in San Guillermo, Lipa City. She reported the incident to this elder, and
recounted some more. Catherine Linatoc told her great-grandmother of two
other acts of sexual abuse by appellant. The first one, she narrated,
happened on September 29, 1996, about ten in the morning[;] and the
second, on March 1997 around noon-time.
The first rape happened on September 29, 1996 in appellants
house. Catherine Linatoc was on the ground floor of the house when so
suddenly appellant sprung from wherever he was, grabbed and carried her to
the second floor. The second floor was just three steps from the ground
floor. He then undressed her, taking off her sando, skirt and panty. He
undressed himself too, and then floored both their bodies, [his] on top of
her. He caressed her breasts and started inserting his penis into her
vagina. Appellant held her hands tightly and fought off her struggle. There
was push and pull for about three minutes, then appellant came

through. Appellant dressed up, and before walking away, apologized to her. It
would be the first and last rape, he said.
There was soon the second sexual abuse. In March 1997, about noontime,
using the same strategy as he did in the [first] rape, appellant unburdened
himself on Catherine Linatoc. From nowhere, appellant appeared. He
dragged her to the second floor where he undressed her and himself. He
mightily threw her to the floor, his sweaty body covering hers. Appellant
engaged in the now familiar gyration once again. This time, however his
penis landed on the thighs of the victim as insertion, because of her struggle
and vaginas virginal qualities, became frustratingly difficult. Between her
thighs appellant thrusted his penis. He satisfied himself just the same.
The great-grandmother was helpless to remedy the abuse done to Catherine
Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc,
who arrived four days later. The mother of Catherine Linatoc, Lina Viernes,
also arrived. Catherine Linatoc had her medico-legal examination with these
results.:
x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small
amounts of whitish discharge.
The medico-legal examination was performed by Dr. Helen S. Dy. The present
criminal complaints against appellant were thereafter filed.[11]
Version of the Defense
Appellant denies the charges against him. Claiming to have been
elsewhere at the time of the commission of the alleged crimes, he submits
the following counterstatement of the facts:
1) ELADIO, at the lower court, stated that he is the common law husband of
Lina de la Cruz-Linatoc (mother of the alleged victim Catherine Linatoc). He
is a security guard and at the same time, a tricycle driver. On September 29,
1996 he was living with Lina, together with Catherine, his two sons and other
relatives. On September 28, 1996 he scolded Catherine. As a consequence
thereof, Catherine went to the house of her great grandmother and stayed
therein even beyond September 29, 1996. Therefore, it is impossible for him
(ELADIO) to have attacked Catherine sexually on September 29, 1996. It is
not true that he attempted to rape Catherine in March of 1997 because he
was on duty at that time. Their company logbook will bear witness
thereto. (Exhibit 2, Original Records) On August 18, 1997 it is not true that he
raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13,
December 11, 1997; and pp. 2-22, January 8, 1998)

2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic]
of ELADIO that Catherine was no longer in their house on September 29,
1996 and that ELADIO could not have abused Catherine sexually. Catherines
charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 27, February 3, 1998).
xxxxxxxxx
D. Sur-Rebuttal Evidence.
ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of
the case.[12]
Ruling of the Trial Court
The court a quo held that the testimony of Catherine Linatoc -- both on
direct
and
on
cross-examination
-was
clear,
positive
and
steadfast. Corroborated by the medicolegal examination conducted on her, it
was replete with details that jibed on material points. The prosecution
successfully proved that she was the daughter of appellants common-law
wife and that, at the time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on
the theory that she would not publicly acknowledge the defilement of her
virtue or subject herself to public humiliation, if her purpose was not to
obtain justice for the wrong committed. There is no evidence that she was a
woman of loose morals or that she had any ill motive to falsely accuse
appellant.
On the other hand, appellants denial and alibi were unsubstantiated and
self-serving; hence, they deserve no weight in law. They cannot stand
against Catherines positive testimony.
In the assailed Order, the trial court noted that the prosecutions Motion
was unopposed. It ruled that the increase in the penalty did not place
appellant in double jeopardy.
Hence, this appeal.[13]
The Issues
In his Brief,[14] appellant raises this sole alleged error:

The lower court has committed an error in convicting the accused-appellant

of the crimes charged and on meting out on him the supreme penalty of
death, more particularly in Criminal Cases Nos. 0532-97 and 0534-97.
An appeal from a criminal conviction, especially one involving the death
penalty, throws the whole case open for review. Thus, it becomes the duty of
the reviewing court to correct any error in the appealed judgment, whether
or not it is made the subject of an assignment of error. [15] In this light, the
Court believes that a second issue needs to be taken up, namely:
Whether the trial court erred in increasing the penalties via the assailed
Order.
This Courts Ruling
The trial court was correct in convicting appellant in accordance with the
challenged Decision, but was wrong in imposing the new penalties through
the assailed Order.
First Issue: Appellants Culpability
After a thorough review of the pleadings, the transcripts of stenographic
notes and other records of the case, we are convinced that the court a
quo did not err in giving credence to the testimonies of the victim and the
other prosecution witnesses. The testimony of private complainant, detailing
how she was abused by appellant on two separate occasions and how he
tried to rape her once more, was clear and convincing. We quote at length:
Q While you were in your house on that date, September 29, 1996, 10:00
oclock in the morning, do you remember of any unusual incident that
transpired if any?
A Yes, sir.
Q What was that unusual incident that transpired?
A After my mother left, I was pulled sir.
Q By whom, who pulled you?
A My step father, sir.
Q Where were you brought, towards what direction?
A Towards the second floor of our house and to the place where we sleep,
sir.

Q By the way, that house where you were living in Brgy. Tibig, Lipa City on
that date September 29, 1996, what kind of house is that?
A It is made of Sawali, sir.
Q How about the flooring, how many floors does it have?
A Three (3) steps sir.
Q What do you mean by three (3) steps?
A Our stairs is made of three (3) steps, sir.
Court:
From the ground floor?
A Yes, sir.
Q What is located after going this stairs composed of three (3) steps?
A That is the place where we sleep sir.
Q After you [were] pulled upstairs to where you usually sleep by Eladio
Viernes, what did Eladio Viernes do to you after reaching that upper
portion of your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A He undressed me sir.
Q What were you wearing that Eladio Viernes took of[f] from your body?
A I was wearing a skirt which was my uniform sir.
Q What else I[f] any were taken of[f] from your body by Eladio Viernes?
A My blouse, sando and my skirt and my panty sir.
Q After Eladio Viernes took of[f] your clothing, after removing your clothing
what did Eladio Viernes do on your body?
A He placed himself on top of me.
Q When Eladio Viernes placed himself on top of you, what was he wearing
if any?
A None sir.
Q By the way, when Eladio Viernes pulled you to where you usually sleep,
what was his wearing at that time?

A He was wearing pants, sir.

Q You said that after Eladio Viernes took of[f] all your clothing he went on
top of you you said he was already naked, what did he do with hi[s]
pants before he went on top of you?
A He mashed [m]y breast sir.
Q What else did he do [to] you aside from mashing your breast?
A He inserted his penis into my vagina.
Q By the way, while he was mashing your breast, what were you doing if
you did anything?
A I was fighting him back sir.
Q What did Eladio Viernes do when you fought him back while he was
mashing your breast?
A He was slapping me sir.
Q When he inserted his penis into your vagina, what did you feel?
A Painful, sir.
Q Was Eladio Viernes able to actually insert his penis[?]
Atty. Dimaandal
Leading your honor.
Q After Eladio Viernes inserted his private organ into your private organ,
what else did he do if anything more?
A He did pumping motion, sir.
Q For how long did he do this pumping motion, while his penis was inside
your vagina?
A About three (3) minutes sir.
Q After three (3) minutes when Eladio Viernes did this pumping motion
while his penis was inside your vagina, what else did he do if he did
anything more?
A He removed his private organ sir.[16]
We also quote the testimony of the victim regarding appellants attempt
to rape her:
Q When was the second time, after September 26, 1996?
A In May 1997 but I do not remember the exact date sir.
Q Are you sure about the date?

Atty. Dimaandal
That is the answer of the witness.
Prosecutor
Thats why I am asking, are you sure about the date?
A May 19, 1997 sir.
Q By the way, in [the] second incident [where] Eladio Viernes according to
you raped you again, where did this happen?
A At Barangay Tibig, Lipa City.
Q In what particular place in Bgy. Tibig were you raped for the second time
by Eladio Viernes?
A In the upper portion of our house at the place where we are sleeping sir.
Q The same place where the second rape was committed?
A Yes, sir.
Q Around what time did this happen, this second rape happened?
Atty. Dimaandal
We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A Noontime sir.
Q How did this happen?
A He again pulled me sir.
Q By the way on that second occasion, where was your mother?
A She was working sir.
Q You said that you were again pulled, where were you brought by Eladio
Viernes at the same time around?
A The upper portion of our house and at the place where we were sleeping
sir.
Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to
you?
A He undressed me sir.
Q What kind of wearing apparel that you were wearing that were taken off
by Eladio Viernes on that same occasion?

A I was wearing a skirt sir.

Q After you were undressed by Eladio Viernes what did Eladio Viernes do
to you if he did anything?
A He again placed himself on top of me sir.
Q What was he wearing he placed himself on top of you if he was wearing
anything?
A He was wearing pants sir.
Q When he placed himself on top of you, where was his pants?
A He removed pants sir.
Q When Eladio Viernes went on top of you, what did you [sic] do if he
anything more on the second time around?
A He again mashed my breast sir.
Q What did you do when Eladio Viernes again mashed your breast?
A I was fighting him back sir.
Q What else did he do aside from mashing your breast, what did Eladio
Viernes do to you?
A He was inserting his penis into my vagina sir.
Q When Eladio Viernes was inserting his penis into your vagina, what did
you do?
A I was struggling sir.
Q When you struggled, what happened to that effort of Eladio Viernes to
insert his penis into your vagina?
A It was not inserted sir.
Q What did Eladio Viernes do when he failed to insert his penis into your
vagina?
A He just placed it between my thighs sir.
Q After placing his penis between your thighs, what else did Eladio Viernes
do if he did anything?
Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He
just place on my thigh, there was no vagina [sic].
Q You said that Eladio Viernes placed his penis in your thighs, in what
particular part of your thighs?
Atty. Dimaandal

Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q What did Viernes do after he put his penis between the inner portion of
your two thighs?
A [H]e placed his penis between my thighs and he again did the pumping
motion sir.[17]
Pertinent portions of the testimony of complainant regarding her second
defilement in the hands of appellant read as follows:
Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?
A I was at home sir.
Q What were you doing?
A I just arrived from school sir.
Q You said that you were in your house, where was this house located on
that date, August 18, 1997?
A At Barangay Tibig sir.
Q You said that you had just arrived from school, when you arrived in your
house in Brgy. Tibig, Lipa City on August 18, 1997 around 12 noon,
whom did you meet in your house if you met anybody there?
A My step father sir.
Q Meaning Eladio Viernes?
A Yes sir.
Q Seeing Eladio Viernes in your house on that date August 18, 1997
around 12 noon, what did he do if he did anything upon seeing him or
meeting you?
A He instructed our companions in the house to clean the motor tricycle
sir.
Q After instructing your companions in your house to clean the motor
tricycle, what else did Eladio Viernes do, if he did anything more?
A He asked me to fetch two (2) containers of water sir.

Q By the way, these your companions of your house, [sic] who where
given the instruction by Eladio Viernes to clean the motor tricycle, who
are these companions [sic] of your house?
A My two brothers and one step brother, sir.
Q How old were these two brothers of yours and your one step brother
who were given the instruction by Eladio Viernes to clean the motor
tricycle?
A My step brother was 12 years old; my two brothers were six and 5 years
old sir.
Q How far was this tricycle from your house?
A Near the street sir.
Q Around how many meters if you can calculate was this tricycle from your
house or can you point distance from the place where you are sitting
now to any place inside the court room?
Interpreter
Witness pointing to the railings inside the Court room as their house and
the witness pointed to the western wall of the court room as the place
where the tricycle was to be around 7 meters sir.
Q What did your two (2) brothers and one (1) step brother do if they did
anything more upon receiving the instruction from your step father
Eladio Viernes to clean the motor tricycle?
A They followed the instruction of my step father to clean the tricycle sir.
Q How about you when you were instructed by your step father to fetch
two (2) containers of water, what did you do?
A I brought the water near the comfort room sir.
Q After you brought the two (2) containers of water to the place were you
said a while ago, what did Eladio Viernes do to you if he did anything?
A He followed me sir.
Q After Eladio Viernes followed you, what did he do [to] you if he did
anything?
A I was frightened sir.
Q Why?
Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.
Court

Continue.
Q Why did you get frightened?
A Because I felt that he will repeat the same thing sir.
Q What do you mean repeat the same thing?
A He will again repeat raping me sir.
Q When you got frightened, what did you do?
A I tried to struggle sir.
Q Why did you struggle, what was Eladio Viernes doing [to] you?
A He pulled up my skirt and when I was trying to go out from the comfort
room he was stopping me from going out sir.
Q What happened to your struggle, to free from the hold of Eladio Viernes
when you were inside the comfort room?
A I could not go out [o]f the comfort room because I was held by my step
father sir.
Q After Eladio Viernes pulled up your skirt, what did he do with you if he
did anything more?
A He pulled down my panty sir.
Q Up to what portion was that panty of yours pulled down?
Interpreter
Witness pointing to her ankle
Q After Eladio Viernes pulled down your panty up to your ankle, what did
he do to you?
A He was inserting his penis into my vagina, sir.
Q What was your position in relation to Eladio Viernes when he was
inserting his penis into your vagina?
A I was standing sir.
Q How about Eladio Viernes, where was he in relation to you while he was
inserting his penis into your vagina?
A He was at my back sir.
Q What happened to this effort of Eladio Viernes in trying to insert his
private organ into your private organ?
A It was inserted sir.

Q You said that you were standing, what was the form or what was the
position of your body aside from the fact that you were standing when
Eladio Viernes was able to insert his penis into your vagina while he
was at your back?
A I was standing and I was struggling sir.
Q When Eladio Viernes was actually able to insert his penis into your
vagina, what was the position of your body aside from the fact that you
were standing?
A I was standing with my knees bent sir.
Q After Eladio Viernes was able to insert his penis into your vagina while
you are in a standing position, how long was his penis inside your
vagina?
A About three (3) minutes sir.[18]
Catherine impressed the trial court as a decent woman [who has] not
been shown to be of loose morals or one who goes out with different men
any time of the day or night.[19] A rape victim who testifies in a categorical,
straightforward, spontaneous and frank manner -- and remains consistent -is a credible witness.[20] It is well-entrenched that the trial court is in the best
position to assess the credibility of witnesses and their testimonies because
of its unique opportunity to observe them firsthand and to note their
demeanor, conduct and attitude on the stand. [21] In the absence of any
showing that its assessment is flawed, an appellate tribunal is bound by it.
Despite the tender age of complainant, her accounts on direct and crossexamination were replete with details that jibed on material points.
[22]
Considering her young age, it would have been highly improbable for her
to fabricate a charge so humiliating to her and her family, had she not been
truly subjected to the painful experience of sexual abuse.[23]
The moral ascendancy of appellant as the common-law husband of
complainants mother takes the place of force and intimidation as an element
of rape,[24] although the presence of such element is apparent from
Catherines testimony.
Alibi and Corroboration
Appellant denies having raped Catherine on September 29, 1996,
claiming she was at her grandmothers house in San Guillermo, while he was
outside his house digging a toilet pit. Allegedly, in March 1997, he was on
duty as a security guard at the Smart Tower; and on August 18, 1997, he was
busy the whole day plying his tricycle route.

The trial court correctly disbelieved his alibi. Alibi and denial, if
unsubstantiated by clear and convincing evidence, are negative and selfserving evidence that deserve no weight in law. They cannot be given
greater evidentiary value over a credible witness testimony on affirmative
matters.[25] Except for Lina Linatocs corroboration, the only evidence
supporting the alibi and denial of appellant is his own say-so. And Lina
happens to be his common-law wife; thus, her testimony is necessarily
suspect and cannot prevail over the testimonies of more credible witnesses.
[26]
Negative testimony cannot prevail over the offended partys positive
identification of the accused as her rapist.[27]
Finally, for alibi to prosper, it must be shown that the accused was in
another place at the time the crime was committed, and that it would have
been physically impossible for him to be at the scene of the crime at the
time it was committed.[28] Such physical impossibility was not proven in the
present case. The Smart Tower where appellant worked as a
security guard was located also in Barangay Tibig, Lipa City, and was only a
thirty-minute walk from his house. The tricycle station, on the other hand,
was only 1000 meters away. Note that he had a motorized tricycle at his
disposal. His alibi, therefore, is unworthy of credence.
Attempt to Settle the Case
Appellant strongly denies the prosecutions assertion that he attempted to
settle the case with complainants family.
We remain unconvinced. Instead, we concur with the finding of the RTC
that the letter dated November 25, 1997 -- addressed to Orlando and
Catherine Linatoc, signed by appellant and delivered by Lina Linatoc -- was
admissible evidence against appellant. Perusal of the letter reveals that he
attempted to bribe Orlando with P150,000 or a house and lot and a promise
of an additional P100,000 in exchange for dropping the charges against him.
[29]
Under Section 27, Rule 130 of the Rules of Court, an offer of compromise
by the accused may be received in evidence as an implied admission of guilt.
Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary
surrender.
We disagree. The act of surrender must be spontaneous, accompanied by
an acknowledgment of guilt, or an intention to save the authorities the
trouble and the expense that search and capture would require. [30] Going to

the police station to clear his name does not show any intent of appellant to
surrender unconditionally to the authorities.[31]
Medicolegal Officers Testimony
Appellant avers that the medicolegal officer who examined complainant
admitted being unsure of her findings.
We disagree with the assessment by appellant of the testimony of the
medicolegal officer. However, even if we discount the testimony of the latter,
complainants testimony by itself can sustain the formers conviction. Medical
examination is not an indispensable requirement, and its absence does not
affect the verdict of conviction, if sufficient evidence is presented to prove
the crime charged.[32] When a rape complainant, especially one of tender age
like Catherine, says that she has been raped, she in effect says all that is
necessary to show that she has indeed been raped.
Civil Indemnity and Moral Damages
The Solicitor General takes issue with the damages awarded by the
RTC. In the assailed Order, it ordered appellant to pay P50,000 in civil
indemnity, P10,000 in moral damages and P5,000 in exemplary damages for
every count of consummated rape; and P25,000 in civil indemnity for the
attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a
case of consummated rape to P75,000 if the crime was committed with, or
effectively qualified by, any of the circumstances under which the death
penalty is authorized by the applicable amendatory laws. [33] Moral damages
are pegged at P50,000 without further need of pleading or proof.
Exemplary damages, on the other hand, are granted when an
aggravating circumstance, which is not offset by a mitigating circumstance,
attended the commission of the crime. In several cases, the relationship
between the appellant and the rape victim justifies the award of exemplary
damages, as in this case.[34]
Second Issue: Modification of Penalties
One day after the promulgation of the April 6, 1998 Decision, the
prosecution filed a Motion for Reconsideration seeking the imposition of the
death penalty on appellant for the two cases of consummated rape

and reclusion temporal for the attempted rape, in accordance with Section
11 of RA 7659. The prosecution argued that the Motion would not place
appellant in double jeopardy, because what is sought is just the imposition of
the proper penalty as provided by law. [35] The trial court concurred with the
prosecution and granted the Motion in the assailed Order, saying that the
Motion was unopposed and that there was no violation of appellants right
against double jeopardy.[36]
We disagree. Conflicting decisions rendered over the years both allowing
the prosecution to seek the reconsideration of a conviction and prohibiting it
therefrom necessitate a review of the rule on the modification of judgments
of conviction. Early on, in People v. Ang Cho Kio,[37] the Court, citing Article 2
of Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot
move
to
increase
the
penalty
imposed
in
a
promulgated
judgment. Reopening the case for the purpose of increasing the penalty as
sought by the government would place the accused in double jeopardy. This
ruling was followed in People v. Pomeroy[38] and People v. Ruiz.[39]
The 1964 amendment of the Rules, however, allowed the fiscal to move
for the modification or the setting aside of the judgment before it became
final or an appeal was perfected. [40] Under this amendment, a judgment
acquired finality and the trial court lost jurisdiction only in the following
cases: (1) after the 15-day period to appeal lapsed, [41] (2) when the
defendant voluntarily submitted to the execution of judgment, (3) when the
defendant perfected the appeal,[42] (4) when the accused withdrew the
appeal, (5) when the accused expressly waived in writing the right to appeal,
[43]
and (6) when the accused filed a petition for probation. [44] Under this
amendment, the trial court had plenary power to alter or revise its judgment
in accordance with the requirements of law and justice.
In 1985, Section 7 of Rule 120 was amended to include the phrase upon
motion of the accused effectively resurrecting the Ang Cho Kio ruling
prohibiting the prosecution from seeking a modification of a judgment of
conviction.[45] As amended, the provision was worded as follows:
SEC. 7. Modification of judgment. A judgment of conviction may, upon
motion of the accused, be modified or set aside by the court rendering it
before the judgment has become final or appeal has been perfected. A
judgment in a criminal case becomes final after the lapse of the period for
perfecting an appeal, or when the sentence has been partially or totally
satisfied or served, or the accused has expressly waived in writing his right
to appeal, or the accused has applied for probation.
Under this Rule, a judgment of conviction, before it became final, could
be modified or set aside upon motion of the accused. [46] It obviously aims to
protect the accused from being put anew to defend himself from more
serious offenses or penalties which the prosecution or the court may have

overlooked in the original trial. It does not however bar him from seeking or
receiving more favorable modifications.
Significantly, the present Rules, as amended last year, retained the
phrase upon motion of the accused, as follows:
SEC. 7. Modification of judgment. A judgment of conviction may, upon
motion of the accused, be modified or set aside before it becomes final or
before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to appeal, or has applied
for probation.
Therefore, the assailed Order is erroneous and reversible. The trial court
cannot increase the penalties without the consent of the accused.
We close this Decision with an exhortation to the defense counsel to be
more circumspect in defending appellant and others similarly
situated. Counsel should have immediately objected to the Motion for
Reconsideration in the trial court. Because of this failure to take exception,
the RTC judge meekly granted the relief prayed for and condemned the
accused, inter alia, to two death sentences.
Before this Court, counsel was again caught flat-footed by not raising the
erroneous basis of the assailed Order. We cannot disregard such serious
lapse. We urge counsel, as well as all the members of the bench and the bar,
to be more vigilant in protecting the rights of the accused -- especially those
in jeopardy of the death penalty -- and to keep abreast of legal
developments. Indeed, the learning process in law never ceases.[47] Utmost
dedication to duty and excellence is expected of every lawyer.
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed
Order
is ANNULLED and SET
ASIDE, while
the
assailed
Decision
is AFFIRMED and REINSTATED with the MODIFICATION that the awards of
moral damages are increased to P50,000 and those for exemplary damages
to P25,000 for each consummated rape, pursuant to current jurisprudence. [48]
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. RONNIE ABOLIDOR,
CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused.
CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J.:

This is an appeal from the decision[1] dated January 31, 2000 of the
Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948,
convicting Claudio Barcimo, Jr. @ Noc-noc, Ronnie Abolidor and Francisco
Comoda of the crime of murder, sentencing them to suffer the penalty
of reclusion perpetua and ordering them to pay P100,000.00 as civil
indemnity, P16,000.00 as actual damages and P30,000.00 as moral and
exemplary damages.
Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted
for Murder in an Information alleging:
That on or about the 14th day of June 1993, in the Municpality of New Lucena,
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and helping one another
together with another unidentified person, armed with firearms of unknown
caliber, with deliberate intent and decided purpose to kill, with treachery,
superior strength and evident premeditation, did then and there, willfully,
unlawfully and feloniously attack and shoot Thelma Subosa with said
firearms hitting the latter on the head, chest and other parts of her body
which caused the death of said Thelma Subosa immediately thereafter.
CONTRARY TO LAW.[2]
Upon arraignment,[3] the three accused pleaded not guilty. Trial on the
merits ensued.
The victim, Thelma Subosa, was the mother of 14 children with her
deceased husband, Primo Subosa. Subsequently, she cohabited with her
common-law husband Warlito Huesca and lived together with some of her
children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito
Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the
victim, her children namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and
Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca, were
awakened by the forcible opening of the door of their house. Four men
entered the house and declared a hold up. The victim pleaded not to be
harmed. Instead, accused Ronnie Abolidor tied her mouth with a
handkerchief to silence her. Then appellant Claudio Barcimo, Jr. shot the
victim several times causing her instantaneous death.[4]

Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr.

and Ronnie Abolidor since they slept on the same mat with the victim and a
kerosene lamp was near the victims head. [5] Both testified that they knew
Ronnie Abolidor because he was their neighbor for several years, and Claudio
Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco
Comoda was later identified by the witnesses at the police station.[6]
Roselyn also testified that on June 12, 1993, at the burial of their
stepfather, the victim told her that it was Claudio Barcimo, Jr. @ Noc-Noc who
killed Warlito Huesca.[7]
For his part, appellant denied any participation in the killing of Thelma
Subosa and claimed that he could not have done it because he was a good
friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he was
with Brgy. Capt. Buol in a celebration at the house of Brgy. Capt. Gerardo
Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at
around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that
the mahjong game lasted until 4:00 a.m. the following day; that he and Capt.
Buol went back to New Lucena at about 6:00 a.m. of June 14, 1993; and on
the next day, he left for Manila for treatment of tuberculosis.[8]
After trial, the trial court convicted the three accused on January 31, 2000
in a decision, the dispositive portion of which reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all
the three accused, namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor
alias Ronnie and Francisco Comoda, beyond reasonable doubt (Rule 133, Sec.
2, Revised Rules of Court) of the offense of Murder under Art. 248, R.P.C. as
alleged in the Information, this Court hereby renders judgment sentencing all
the said accused to suffer the penalty of imprisonment consisting
of Reclusion Perpetua, with all the attendant accessory penalties, to pay
P100,000.00 as indemnity for death to the heirs of the late Thelma Sobusa,
to pay the sum of P16,000.00 as actual damages, and P30,000.00 by way of
moral and exemplary damages and to pay the costs.
SO ORDERED.[9]
Only Claudio Barcimo, Jr. appealed the decision raising the following
assignment of errors:

A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF

PROSECUTION WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA
AND IN NOT APPRECIATING THE TESTIMONY OF THE AUNT OF SAID
WINTNESSES AS CORROBORATED BY THE BARANGAY CAPTAIN OF
THE PLACE WHERE THE INCIDENT HAPPENED THAT THE SAID
PROSECUTION WITNESSES HAVE NOT IDENTIFIED THE KILLERS.
B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS
ATTENDANT IN THE COMMISSION OF THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS
ATTENDANT IN THE COMMISSION OF THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY
SURRENDER OF THE ACCUSED.[10]
Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and
Roselyn as one of the assailants is doubtful because when asked whether
they know the assailants, they replied in the negative.
The contention is without merit.
By challenging his identification by the witnesses of the prosecution, as
one of the assailants of the victim, the appellant attacks the credibility of
said witnesses and the probative weight of their testimonies. However, when
the issue of credibility of witnesses is in question, the findings of facts of the
trial court, its calibration of the testimonies of witnesses and its assessment
of the probative weight thereof, as well as its conclusions anchored on said
findings are accorded by the appellate court high respect if not conclusive
effect, precisely because of the unique advantage of the trial court in
observing and monitoring at close range the demeanor, deportment and
conduct of the witnesses as they testify, unless the trial court has
overlooked, misconstrued or misinterpreted cogent facts of substance which
if considered might affect the result of the case.[11]
In the case at bar, there is no showing that the trial court overlooked,
misunderstood, misapplied or misconstrued any fact of substance that might
materially affect the outcome of the case. The trial court found the collective
testimonies of the prosecution witnesses Ellyn and Roselyn to be:

generally impressionable but their natural naivet and inexperience make

them reliable witnesses. Their statements are generally free from any bias or
prejudice as to be slanted or malicious. It is observed that the testimonies of
Ellyn and Roselyn Sobusa are direct, straightforward and delivered without
any hesitancy whatsoever.[12]
The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively
identified appellant as the one who shot the victim. Although the incident
occurred during nighttime, the house of the victim was sufficiently
illuminated by the kerosene lamp placed near the head of the victim, which
provided enough light for purposes of identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any
unusual incident that happened?
A. Yes, sir.
Q. What is that incident about?
A. At around that time I was awakened by the sound of the opening of
the door. I saw four (4) persons entered our house and one them
said, This is a hold up. My mother then pleaded, Do not kill
me.Have mercy.
Q. What happened after your mother pleaded have mercy?
A. There was a shot and I ducked. Then another shot was fired which I
do not know anymore because I lied with my face down.
Q. Do you know the person who said this is a hold up?
A. Yes, sir.
Q. Who is he?
A. Nocnoc.
Q. How far is this Nocnoc when you said he shot your mother?
A. Very near.

Q. What was the position of your mother by the time she was shot by
Nocnoc?
A. She was lying down.
xxxxxxxxx
Q. Miss witness, this incident happened at around 2:00 oclock in the
morning, why are you sure that Ronnie Abolidor was one of the
four persons who entered your house?
A. Because we have a kerosene lamp placed very near the head of my
mother.
Q. How far is that kerosene lamp from your mother?
A. Witness demonstrates about 5 to 6 inches more or less.
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from
the kerosene lamp?
A. Nocnoc was situated on the feet of my mother.
Q. What was the position of Nocnoc when he shot your mother?
A. He was standing.[13]
Considering the illumination from the kerosene lamp, and Ellyns proximity
to her mother and to the appellant, she could have clearly seen and
recognized the appellant when he shot the victim.
In People v. Prieto,[14] we ruled that the illumination provided by kerosene
lamp or wicklamps, and flashlights, moonlight or starlight may, in proper
situations, be considered as sufficient illumination, making the attack on the
credibility of witnesses solely on that ground unmeritorious.
Moreover, Roselyn testified that she was familiar with the voice of the
appellant as he was a friend of his stepfather and she visited appellants
house several times.[15] The voice of a person is an acceptable means of
identification where it is established that the witness and the accused knew
each other personally and closely for a number of years. Once a person has
gained familiarity with another, identification becomes quite an easy task

even from a considerable distance. [16] We also note that appellant did not
deny that Warlito Huesca was his good friend and that he visited their house
many times.[17]
The credibility of the prosecution witnesses Ellyn and Roselyn is not
adversely affected by their failure to immediately report the identities of the
perpetrators to the responding authorities immediately after the
incident. Indubitably, fear stifled the witnesses from voicing their knowledge
of the identities of the perpetrators. There is no rule that a witness should
immediately name the suspect in a crime. [18] Nevertheless, the delay was not
that long as when the police authorities investigated the witnesses in the
afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo, they
named appellant and accused Ronnie Abolidor as two of the perpetrators.[19]
To escape criminal liability, appellant invokes the defense of alibi and
denial. He asserts that he could not have done it considering that Warlito
Huesca, the common-law husband of the victim, was his good friend and at
the time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buol
in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong.
We are not convinced.
It is well settled that positive identification, where categorical and
consistent and not attended by any showing of ill motive on the part of the
eyewitnesses testifying on the matter, prevails over alibi and denial which, if
not substantiated by clear and convincing evidence, are negative and selfserving evidence undeserving weight in law.[20] Hence, the defense of denial
and alibi cannot prosper in the light of the positive identification by
eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant was the one
who shot their mother.
We agree with the trial courts appreciation of the presence of qualifying
circumstance of treachery. There is treachery when the offender commits any
of the crimes against persons, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party
might make. It is settled that there is treachery if the victim, when killed, was
sleeping or had just awakened, because in such cases the victim was in no
position to put up any form of defense.[21]

In the case at bar, the victim had just awakened from sleep because of
the forcible opening of their door. When she was shot by appellant, she was
lying down on the mat with a handkerchief tied around her mouth. Obviously,
in this position she can not defend herself from the aggression of the
perpetrators.
The trial court did not err in disregarding the mitigating circumstance of
voluntary surrender. To benefit an accused, the following requisites must be
proven, namely: (1) the offender has not actually been arrested; (2) the
offender surrendered himself to a person in authority; and (3) the surrender
was voluntary. A surrender to be voluntary must be spontaneous, showing
the intent of the accused to submit himself unconditionally to the authorities,
either because he acknowledges his guilt, or he wishes to save them the
trouble and expense necessarily incurred in his search and capture.
Voluntary surrender presupposes repentance.[22] In People v. Viernes,[23] we
held that going to the police station to clear ones name does not show any
intent to surrender unconditionally to the authorities.
In the case at bar, appellant surrendered to the authorities after more
than one year had lapsed since the incident and in order to disclaim
responsibility for the killing of the victim. This neither shows repentance or
acknowledgment of the crime nor intention to save the government the
trouble and expense necessarily incurred in his search and capture. Besides,
at the time of his surrender, there was a pending warrant of arrest against
him.[24] Hence, he should not be credited with the mitigating circumstance of
voluntary surrender.
Appellant is guilty of Murder, qualified by treachery, for the killing of
Thelma Sobusa. Article 248 of the Revised Penal Code, as amended, imposes
the penalty of reclusion perpetua to death for Murder. The trial court was
correct in imposing the penalty of reclusion perpetua, there being no
aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2
of the Revised Penal Code.
The trial court awarded the amount of P100,000.00 as civil indemnity to
the heirs of the victim. Said amount must be reduced to P50,000.00, in line
with prevailing jurisprudence.[25]
The award of actual damages must also be modified. While appellant
admitted the amount of P19,000.00 as actual damages, [26] the trial court only
awarded the amount of P16,000.00.[27] Ordinarily, receipts should support

claims of actual damages, but where the amount claimed was admitted, it
should be granted.[28] Consequently, the heirs of the victim is entitled to be
awarded the amount of P19,0000.00 as actual damages.
The trial court likewise erred when it awarded the amount of P30,000.00
as moral and exemplary damages without indicating what amount
constitutes moral damages and exemplary damages. In murder and
homicide cases, the award of moral damages should be substantiated by
evidence.[29] In the case at bar, the prosecution failed to present proof of
moral damages.Therefore, the same should be deleted.
On the other hand, exemplary damages must be awarded in view of the
attendance of treachery which qualified the killing to Murder. Under Article
2230 of the Civil Code, exemplary damages as part of the civil liability may
be imposed when the crime was committed with one or more aggravating
circumstances. The term aggravating circumstances as used therein is to be
understood in its broad or generic sense since the law did not specify
otherwise. The ordinary qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the criminal, rather than to
the civil liability of the offender. Thus, the heirs of the victim are entitled to
exemplary damages in the amount of P25,000.00.[30]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial
Court of Iloilo City, Branch 31, in Criminal Case No. 40948, insofar as it finds
Claudio Barcimo, Jr. @ Noc-noc guilty beyond reasonable doubt of the crime
of murder and sentences him to suffer the penalty of reclusion perpetua is
AFFIRMED with the MODIFICATION that appellant is ORDERED to pay the
heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity,
P19,000.00 as actual damages and P25,000.00 as exemplary damages. The
award of moral damages is DELETED.
Costs de oficio.
G.R. No. L-37271

July 1, 1933

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
MAGDALENA CALISO, defendant-appellant.

ISLANDS, plaintiff-appellee,

Juan
Sumulong
Attorney-General Jaranilla for appellee.

for

appellant.

ABAD SANTOS, J.:

The appellant in this case was convicted of the crime of murder by the Court
of First Instance of Occidental Negros, and sentenced to suffer the penalty
of reclusion perpetua, to indemnify the parents of the deceased in the sum of
P1,000, with the accessory penalties prescribed by law, and to pay the costs.
On this appeal, her counsel de oficio attacks the findings of fact of the trial
court, but does not raise any question of law.
The questions of fact involved in this case are fully discussed in well
considered decision of the trial court, presided over by then Judge Quirico
Abeto, which decision reads as follows:
Se halla acusada Magdalena Caliso del delito de asesinato de un nio
de 9 meses de edad, ocurrido en La Carlota, Negros Occidental, el dia
8 de febrero del presente ao, 1932. La querella alega que la acusada,
siendo una criada de los Sres. Esmeralda (Emilio), voluntaria, ilegal y
criminalmente y con el proposito de satisfacer una venganza,
administro cierta cantidad de acido acetico concentrado, que es una
sustancia venenosa, a Emilio Esmeralda, Jr., un nio de 9 meses de
edad, causandole quemaduras en la boca, en la garganta, en los
intestinos y otras partes vitales de los organos internos que le
produjeron necesariamente la muerte de la victima, quien sucumbio
pocas horas despues; que en la comision de este delito, han concurrido
las circunstancias agravantes de alevosia, abuso de confianza y que el
acto se ha cometido en la propia morada de los padres de la victima.
Despues de presentadas las pruebas, tanto de la acusacion, como de
la defensa, y despues de oidos los brillantes informes aducidos tanto
por el Fiscal Provincial, como por el abogado de oficio de la acusada, el
Juzgado se ha reservado la decision para este dia, no sin antes felicitar
tanto a la acusacion como a la defenda, la primera por lo concienzudo
en la reunion y presentacion de sus pruebas, y la segunda por el
interes grande con que ha demostrado a favor de la acusada. El
Juzgado ha querido tomar tiempo para decidir esta causa, porque se da
cuenta de lo grave que es el delito cometido y de las circunstancias
tanto de la acusada como de los ofendidos en esta causa. Por un lado,
esta la acusada, que es una mujer que pertenece al sexo debil, en la
primavera de su vida, a quien una sentencia podria privar de todos los
beneficios que la vida le ofrece. Por otro lado, una madre loca de dolor

que ha perdido al unico hijo varon de la familia y que considera a la

causada como la persona que le ha arrebatado su unico cario. Por eso
el Juzgado ha querido, hasta donde le ha sido posible, poner toda su
atencion en todos los detalles de las pruebas, observando hasta los
menores actos de los testigos y de la acusada.
Y de las pruebas presentadas, el Juzgado encuentra que en la tarde del
dia 8 de febrero de 1932, mientras los esposos. Sres. Emilio Esmeralda
y Flora Gonzalez estaban durmiendo tomando la siesta,
repentinamente la Sra. de Esmeralda se desperto porque oyo un grito
agudo de su hijo Emilio Esmeralda, de 9 meses de edad, que estaba
durmiendo en una cama al lado opuesto del sitio donde estaba ella
durmiendo con su marido. Cuando la Sra. de Esmeralda llego, seguida
de su marido, a la cama donde habia dejado dormido a su hijo, al
levantar el mosquitero de la cama, percibio inmediatamente un olor
fuerte de acido acetico y encontro a su hijo, que seguia llorando
fuertemente, con los ojos en blanco, los labios hinchados y
blanquecinos y la cara amoratada, y al levantarle percibio olor de acido
acetico en la respiracion del nio. Entonces grito preguntando quien
habia puesto acido acetico en la boca de su hijo, y como ella es
farmaceutica de profesion, se acordo inmediatamente de un antidoto
que podia neutralizar los efectos del acido acetico y ella misma saco
agua de cal y mojando un algodon hidrofilo, limpio la boca del nio, al
mismo tiempo que mandaba a su marido que llamara por telefono al
doctor. Pocos momentos despues llego el Dr. Augusto Locsin, quien
segun su declaracion, noto inmediatamente el olor de acido acetico en
la respiracion del nio, y quiso hacer la primera cura, lavando el
estomago del nio, pero la madre no quiso que el lavado llegara hasta
el estomago, por el temor de lastimar la garganta del chiquillo con el
'catheter', y por este motivo el lavado solamente se pudo hacer hasta
la garganta del nio. Despues de algun tiempo, llegaron, procedentes
de Bacolod, los Dres. Orosa y Ochoa, quienes por telefono habian sido
llamados tambien por el padre de la victima. El Dr. Orosa es el jefe
medico del Hospital Provincial de esta provincia, y el Dr. Ochoa es uno
de los medicos residentes en dicho hospital, especialista en las
enfermedades de los cinco sentidos. Ambos doctores declararon
positivamente que habian percibido el olor de acido acetico en la
respiracion del nio, y habiendo ellos concluido que el chiquillo habia
tomado acido acetico, aplicaron la cura para eliminar dicha sustancia
del organismo del nio, y despues de hacer las primeras curas,

llevaron al nio al Hospital Provincial y alli murio pocos minutos

despues de haber llegado.
Ambos doctores, asi como el Dr. Locsin, son unanimes en la afirmacion
de que la muerte del chiquillo se debio al envenenamiento por medio
de acido acetico, y todos, especialmente el Dr. Ochoa, coinciden en la
opinion de que la muerte ha sido por asfixia, pues el acido acetico ha
hecho estragos en la laringe del nio y este no pudo respirar. El Dr.
Ochoa que, como se ha dicho, es un especialista en los cinco sentidos,
examino la boca y la garganta del nio y encontro alli quemaduras
ocasionadas, segun el, por el acido acetico. Y tan seguros estan los
doctores de que el nio habia tomado acido acetico y que la muerte
del mismo se debio a esta sustancia, que el mismo Dr. Orosa, que es
un medico de muy larga experiencia y un experto cirujano, le aseguro
al Fiscal que no habia necesidad de autopsia para llegar a una
conclusion rayana a la seguridad sobre la causa de la muerte del
chiquillio, y que aun cuando la autopsia demostrara que no existia
acido acetico en los intestinos de, nio, ya porque este habia sido
absorbido por el organismo, o ya porque el estomago habia sido
lavado, el estaba segurismo de que la muerte se debio al
envenenamiento por acido acetico, porque el habia olido esa
sustancia, cuyo olor es inconfundible, en la respiracion del nio y ha
visto los estragos de la sustancia en la garganta y en la boca del
occiso. Ambos medicos, de un modo positivo, sin dudar ni un
momento, aseguraron al Juzgado de que la causa de la muerte, como
se ha repetido varias veces, es por envenenamiento por acido acetico.
Y el Juzgado esta conforme en que en tales circunstancias, no habia
necesidad de autopsia para que el Juzgado pueda concluir, en vista de
las afirmaciones de los medicos basadas en los hechos por ellos
encontrados, que la muerte ha sido por envenenamiento por acido
acetico.
El Juzgado no tiene duda alguna de la competencia de estos dos
doctores, sobre todo tratandose de la opinion del Dr. Ochoa, que es un
especialista en los cinco sentidos y que ha reconocido la garganta y la
boca del nio, en las cuales encontro quemaduras pruducidas por aciso
acetico.
Aparte de esto, la madre del occiso, que es una farmaceutica,
acostumbrada a oler y distinguir sustancias, percibio el olor del acido

acetico en los primeros momentos en que alzo a su hijo de la cama. El

marido de esta seora, Sr. Emilio Esmeralda, tambien es un quimico y
aseguro tambien haber olido el olor fuerte del acido acetico desde los
primeros momentos. Aparte de estas dos personas que pueden
equivocarse, ya por su pasion o por las preocupaciones de momento
por estar interesados por su hijo, esta el Sr. Julian Gomeri, otro quimico
que vivia en la misma casa, quien aseguro al Juzgado que al entrar en
el cuarto donde estaba el chiquillo en brazos de su madre, olio
inmediatamente el olor sofocante del acido acetico, tanto es asi que
pregunto inmediatamente quien habia puesto acido acetico en la cama
del nio y en seuida se puso a buscar por si habia dicha sustancia en la
cama del nio, pero no encontro ninguna botella de acido acetico, ni
rastro de esta sustancia en la cama, sino en la respiracion del nio.
Por eso el Juzgado repite que esta probado fuera de toda duda racional
que el nio Emilio Esmeralda, Jr., murio a consecuencia de
envenenamiento de acido acetico, y es insostenible la teoria de que
pubo haber tenido una indigestion por haber ingerido jugo de naranja
de California despues de haber tomado leche, y de que el olor del
acido acetico podia derivarse del vomito dle chiquillo por la mezcala
del jugo de naranja con la leche. Tres medicos y tres quimicos es
imposible que confundan el olor del jugo de naranja que se ha vuelto
acido al mezclarse con la leche, con el olor fuerte del acido acetico
concentrado.
Habiendo llegado a esta conclusion de que la muerte del nio Emilio
Esmeralda, Jr., se debio a envenenamiento por acido acetico, la otra
cuestion que el Juzgago tiene que resolver es: quien le administro esta
sustancia.
Desde este punto las pruebas son todas circunstanciales unicamente.
Es un hecho probado que dias antes de este suceso, al volver el Sr.
Emilio Esmeralda a su casa, procedente de la fabrica de la Central La
Carlota, a eso de la madrugada, not cierto bulto que se movia en los
bajos de su cama en el cuarto-habitacion de el y de su seora cuando
esta pasaba algunos dias en La Carlota. Temiendo que algun ladron se
habia introducido debajo de la cama, cogio su revolver y amenazo con
dispararle un tiro al que estaba alli metido si no salia. Efectivamente
de alli salio un hombre y, todo temblando, le dijo al Sr. Esmeralda que

el no era un ladron, sino que estaba alli porque habia sido llamado por
la acusada con quien estaba en relaciones amorosas. El Sr. Esmeralda
entonces le recrimino por su acto y le dejo marchar, conminandole que
no volviera a repetir el acto. Cuando la Sra. Flora Gonzalez llego a La
Carlota algunos dias despues, o sea en el dia de autos, el Sr.
Esmeralda, despues del desayuno y estando entonces ausente la
acusada por haber ido al mercado, le conto a su seora lo que habia
sucedido en uno de los dias pasados, o sea, el haber sorprendido a un
hombre en su propio cuarto y debajo de su misma cama, acudiendo a
una cita que tuvo con la acusada. La Sra. de Esmeralda, dada su
educacion y por ser mujer al fin, se sintio muy ofendida e indignada
por el acto de su criada y, muy nerviosa, espero la vuelta de la
acusada, y cuando esta llego, la Sra. Esmeralda la busco en la cocina,
la empezo a insultar de pies a cabeza, recriminandola por su acto
inmoral y por haberse permitido ocultar a su amante en el propio
cuartro de sus amos, y despues de regaar a la acusada, se volvio a su
cuarto, y pareciendole poco la recriminacion que acababa de hacer a la
acusada, otra vez la Sra. de Esmeralda volvio a la cocina a reprenderla
de nuevo, y como no se calmaban los nervios de la Sra. de Esmeralda
en estas dos ocasiones, a medida que volvia a la cocina, emprendia
nuevos insultos a la acusada, en terminos que cuando la Sra. de
Esmeralda puso a dormir a su hijo en la cama, cuando encontro algo
sucias las fundas de la almohada, otra vez se fue a la cocina y volvio a
amonestar a la acusada recriminandola y diciendola que solamente
sabia tener amantes y no sabia cumplir sus deberes como criada.
Apenas dos horas escasas de ocurrir estos insultos, ocurrio el suceso
que dio lugar a la muerte del nio Emilio Esmeralda, Jr.
Procediendo por eliminacin, el Ministerio Fiscal ha tratado de probar al
Juzgado, y asi alega en su informe, que en el momento de ocurrir el
incidente del envenenamiento del nio, solamente estaban en aquel
dia viviendo en la casa donde ocurrio el suceso, diez personas, a saber:
los esposos Esmeralda, sus dos hijas, Lilia y Elsa, el nio Emilio
Esmeralda, Jr., Julai Gomeri, Jose Colmenares, Catalino Ramos, una
criada de unos 12 aos de edad, llamada Magdalena Soriano, y la aqui
acusada. El Ministerio Fiscal dice que no pueden ser autores dle
envenenamiento, ni el Sr. Esmeralda, ni su esposa. El Juzgado, desde
luego, esta conforme con esta eliminacion. No es posible que estos
sean los autores de tal envenenamiento; ademas de ser padres, la
actitud de la madre, enloquecida de dolor por la muerte de su hijo,

aleja toda duda. Seria absurda la mas remota suposicion de que estas
personas fuesen los autores de tal envenenamiento. No podia ser Elsa
Esmeralda porque esta, aparte de sus pocos aos, estaba durmiendo
con su hermanito en la misma cama donde ocurrio el incidente. No
podia ser Lilia, ni la criada Magdalena Soriano, porque ambas estaban
entonces en el retrete, segun las pruebas; ademas que no podia caber
la suposicion de que, o Magdalena Soriano, o Lilia hayan administrado
equivocadamente acido acetico al nio dormido, por cuanto que la
botella que lo contenia estaba en la cocina, segun la acusada misma,
cerca del cantaro de agua donde ella habia puesto, y la acusada,
segun ella misma, estaba toda la tarde en la cocina fregando platos, de
tal manera que si Magdalena Soriano o Lilia hubiesen querido alcanzar
la botella de acido acetico, la acusada los hubiera visto. Julian Gomeri
estaba dormido en su cuarto; era un compaero del Sr. Esmeralda en
el trabajo, amigo intomo de la familia y no ha tenido ningun disgusto
con ningun miembro de ella y no hay motivo alguno para atribuir que
el haya puesto en la boca del nio acido acetico. Jose Colmenares
estaba en la fabrica de la Central, que dista medio kilometro de la casa
ocupada por los Sres. de Esmeralda, ocupado en sus trabajos como
empleado de dicha Central. Catalino Ramos estaba ausente entonces
en la localidad, pues se encontraba en el pueblo de Talisay. Eliminadas
estas personas, solamente queda la acusada como posible autora del
acto de administrar acido acetico al nio Emilio Esmeralda, Jr.
Desde luego, la prueba de que la acusada, pocas horas antes del
suceso, era la unica de la casa que habia recibido insultos de la madre
del nio, es una prueba circunstancial contra ella. Ninguno tenia
motivos de resentimiento hacia ningun miembro de la familia del
occiso mas que la acusada. Ella misma ha admitido durante su
testimonio que en aquel dia ella habia sido reprendida por su ama.
Cuando el nio Emilio Esmeralda, Jr., dio un grito agudo que hizo
despertar a su madre, Julian Gomeri, que estaba dormido en el otro
cuarto, pudo abrir los ojos y vio a la acusada saliendo de la puerta de
la sala y dirigiendose hacia la cocina. Por esta sala habia que pasar al
salir del cuarto donde estaba dormido el nio, para ir a la cocina; y la
distancia de la puerta de esta sala al sitio donde estaba durmiendo el
nio habia apenas 4 o 5 metros. La acusada no ha podido desmentir
esta declaracion de Julian Gomeri, ni ha podido dar explicacion alguna
por que en aquel preciso momento ella salia de la sala para ir a la
cocina. Es posible que despues de haberse puesto el acido acetico en

la boca del nio, este no haya podido gritar inmediatamente, sino

algunos segundos despues al sentir los efectos del acido, de tal
manera que la acusada tuvo tiempo para abandonar el sitio y volver a
la cocina y estando en la sala, el nio dio el primer grito que le hizo
abrir los ojos a Julian Gomeri. Este hecho es otra prueba circunstancial
bastante fuerte, a juicio del Juzgado, contra la acusada. Cuando la
madre del nio estaba curando a este, ordeno a la acusada y a
Magdalena Soriano a que hirvieran agua en la cocina, y mientras estas
dos criadas cumplian la orden, la acusada, sin motivo alguno plausible,
le puso las manos debajo de las narices de Magdalena Soriano y le
dijo: "Mis manos estan oliendo acido acetico porque se ha derramado
algo alli cuando hice vinagre esta maana con acido acetico." Esta
explicacion no pedida hecha por la acusada no parece indicar otra cosa
mas que algun temor que abrigaba por si alguien pudiese oler acido
acetico en sus manos. Otra prueba circunstancial contra la acusada es
el hecho de que en la casa ella era la unica que tenia bajo su custodia
esta botella Exhibit A que contenia acido acetico. Magdalena Soriano
no sabia siquiera donde estaba puesta esta botella. Cuando la Sra. de
Esmeralda busco esta botella, cuyo recuerdo le trajo a la memoria al
oler el acido acetico en la boca de su hijo, la acusada fue quien saco la
botella de la cocina y le entrego a la Sra. de Esmeralda, diciendola,
poco mas o menos, estas palabras: "Seora, aqui esta botella; no ha
salido de la cocina."
La acusada, al declarar en la silla testifical como testigo a su favor, al
ser preguntada por el Juzgado si ha olido acido acetico al entrar en el
cuarto, se inmuto algun tanto; pero inmediatamente se repuso y nego
rotundamente haber olido acido acetico. El Juzgado le dirigio varias
veces esta pregunta, y la acusada insistio en su negativa. El Juzgado le
pregunto si conocia el acido acetico y el olor del mismo, y afirmo que si
y volvio a afirmar que no habia percibido tal olor en el cuarto al entrar
y durante todo el tiempo que habia permanecido alli. Ahora bien, tres
medicos imparciales, does quimicos y una farmaceutica, aparte de
Magdalena Soriano, han olido el inconfundible olor de acido acetico en
el cuarto. La unica que no ha podido oler dicha sustancia es la
acusada. En la comisionde un crimen, el unico que tiene interes en
negar la existencia de un cuerpo del delito es casi siempre, o sin casi,
el autor del mismo. Y esta actitud de la acusada de negar una cosa tan
evidente y sobre la cual el Juzgado no tiene duda alguna, corrobora, a

juicio del Juzgado, todas las pruebas circunstanciales que se han

presentado por la acusacion.
La defensa hace enfasis en el hecho de que la acusada, lejos de
escaparse, entro en el cuarto para ayudar a la madre del nio para
salvar a este, y tanto es asi que la misma acusada, segun Julian
Gomeri, tan pronto como la Sra. de Esmeralda pidio algodon, fue la
que saco de las manos de Julian Gomeri el algodon y lo entrego a la
Sra. de Esmeralda. Este hecho no es, a juicio del Juzgado, suficiente
para demostrar la inocencia de la acusada. Cuantas veces ha
sucedido que el que ha realizado un acto criminal, se arrepiente de su
crimen y trata de remediarlo! El que acaba de herir a un hombre,
despues de pasado el primer momento de obcecacion, si el pudiera
curarlo, indudablemente no se encontraria mejor medico para el
herido. Tambien puede suceder que la acusada, habiendo querido
causar daos unicamente a la criatura, haya querido usar de toda su
habilidad para que los efectos del dao no fuesen tan grandes. La
actitud de la acusada, por tanto, es perfectamente explicable y no
incompatible con su culpabilidad. Otra actitud de la acusada que
parece tener bastante peso es su actitud cuando ella volvio por la
tarde del dia siguiente del suceso a la estacion de policia cuando el
Jefe de Policia le dijo que volviera en aquella tarde. Y el abogado de la
acusada tiene razon para hacer enfasis sobre esta circunstancia. La
acusada ha sido arrestada casi a media noche del mismo dia del
suceso. Fue puesta en libertad a las 11 de la maana del dia siguiente,
en vista de que no llegaba orden de arresto contra ella; pero el Jefe de
Policia le dijo que volviera a las 3 en punto de la tarde, y a las 3 de
aquella tarde la acusada volvio al edificio municipal. El abogado de la
acusada arguye que una conciencia criminal no procederia como ha
procedido la acusada; ella se hubiera escapado. El Juzgado ha
considerado detenidamente este aspecto de la cuestion; ha meditado
largamente sobre este acto de la acusada; pero la conclusion del
Juzgado es que si la acusada volvio en la tarde de aquel dia al edificio
municipal, era porque la acusada no sabia que el nio Emilio
Esmeralda, Jr., habia muerto. Ademas, ella debia saber que, mujer que
era, no podia ir a ninguna parte sin que le alcanzaran las autoridades
correspondientes y, por tanto, era mejor para ella presentarse ante las
autoridades aparentando tener una conciencia tranquila y preparando
en esa forma su futura defensa. El Juzgado cree que desde el momento
en que la acusada mostro solicitud suma para salvar la vida del nio

que ella habia segado en momentos de colera, la acusada ya habia

concebido su plan de defensa.
Se dira tal vez quo no es usual que, habiendo la madre del nio
ofendido a la acusada, esta, en lugar de tomar venganza de la madre,
que muchas oportunidades hubiera ella tenido porque, segun ha
tratado de resaltar el abogado de la defensa, la acusada dormia en el
mismo cuarto de los esposos Esmeralda y preparaba la comida de
estos, haya dirigido su accion vengadora a una inocente criatura,
maxime teniendo en consideracion que la acusada es una mujer y las
mujeras, por regla general, son mas caritativas que los hombres. En
primer lugar, ya sea un hombre, ya sea una mujer, cuando estan
obcecados por el odio y la venganza, ya no consideran las
circunstancias y procuran dirigir su venganza al que les ha ofendido alli
mismo donde es mas facil ejecutar. En este caso, el nio Emilio
Esmeralda, Jr., era el que dormia mas cerca a la puerta entrando
inmediatamente, procedente de la cocina, y era el que, por su tierna
edad, podia sentir inmediatamente los efectos del acido acetico,
pudiendo asi ejecutar su venganza con mayor seguridad de su parte.
Causando dao al nio, que, por ser el unico varon de la familia, era el
mas querido por los Sres. de Esmeralda, se causaba mayor dao a la
Sra. de Esmeralda. El Juzgado, desde luego, acepta la teoria de que la
mujer es mucha mas caritativa que el hombre y mucho mas debil del
consenso comun; pero precisamente por ser mas caritativa, por ser
mas debil, cuando la mujer se vuelve mala y quiere vengarse, su
venganza busca al mas debil tambien y sobre este hace recaer esa
venganza, y la experiencia diaria nos ensea que los seres mas
debiles, sean hombres o mujeres, cuando se vuelven malos, son
peores enemigos; y no es nada extrao, por tanto, que la acusada,
temiendo atacar al Sr. Esmeralda y a la Sra. de Esmeralda, porque
contra ellos no tenia asegurada la ejecucion de su venganza, ha
escogido como victima a una criatura indefensa de 9 meses de edad.
Por las consideraciones expuestas, el Juzgado encuentra probado fuera
de toda duda racional que Emilio Esmeralda, Jr., de 9 meses de edad,
fallecio el dia 8 de febrero de 1932, a consecuencia de
envenenamiento por acido acetico concentrado, y que la acusada,
aprovechando la ocasion en que sus amos estaban durmiendo,
administro una pequea cantidad de esta sustancia a dicho nio,

quemandole de este modo la boca y la garganta, a consecuencia de lo

cual dicho nio fallecio.
Se declara, por tanto, a la acusada Magdalena Caliso culpable del
delito de asesinato, y estimando en la comision del delito la
concurrencia de la circunstancia agravante de alevosia, porque se trata
de un ser indefenso, y de la circunstancia de haberse realizado el acto
en la propia morada de los padres de la victima, cuyas circunstancias
estan compensadas con las circunstancias atenuantes de falta de
instruccion y de haber obrado la acusada a impulsos de un sentimiento
que la hayan producido arrebato y obcecacion, le condena a la pena
de reclusion perpetua, a indemnizar a los padres del occiso en la suma
de P1,000, con las accesorias de ley, y a pagar las costas del juicio. Asi
se ordena.
We agree to the conclusions of fact reached by the trial court. As to the
application of the law to the facts of the case, we are inclined to the
proposition advanced by the Attorney-General that in the commission of the
crime the aggravating circumstance of grave abuse of confidence was
present since the appellant was the domestic servant of the family and was
sometimes the deceased child's amah. The circumstance of the crime having
been committed in the dwelling of the offended party, considered by the
lower court as another aggravating circumstance, should be disregarded as
both the victim and the appellant were living in the same house. (U.S. vs.
Rodriguez, 9 Phil., 136; U.S. vs. Destrito and De Ocampo, 23 Phil., 28.)
Likewise, threachery cannot be considered to aggravate the penalty as it is
inherent in the offense of murder by means of poisoning (3 Viada, p. 29).
Similarly the finding of the trial court that the appellant acted under an
impulse so powerful as naturally to have produced passion and obfuscation
should be discarded because the accused, in poisoning the child, was
actuated more by a spirit of lawlessness and revenge than by any sudden
impulse of natural and uncontrollable fury (People vs. Hernandez, 43 Phil.,
104, 111) and because such sudden burst of passion was not provoked by
prior unjust or improper acts of the victim or of his parents (U.S. vs. Taylor, 6
Phil., 162), since Flora Gonzalez had the perfect right to reprimand the
defendant for indecently converting the family's bedroom into a rendezvous
of herself and her lover.
The aggravating circumstance of abuse of confidence being offset by the
extenuating circumstance of defendant's lack of instruction considered by

the lower court, the medium degree of the prescribed penalty should,
therefore, be imposed, which, in this case, is reclusion perpetua.
The penalty imposed by the lower court upon the appellant being thus within
the limits fixed by law, the judgment appealed from is affirmed with costs. So
ordered.

G.R. No. L-49430, People v. Lora, 113 SCRA 366

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
DECISION
March 30, 1982
G.R.
No.
L-49430
PEOPLE
OF
THE
PHILIPPINES,
plaintiff-appellee,
vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accused-appellant.
PER CURIAM:The defendant Belinda Lora y Vequizo alias Lorena Sumilew was
accused in the Court of First Instance of Davao of serious illegal detention
with murder in an amended information which reads as follows:
, J.:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in
the Court of First Instance of Davao of serious illegal detention with murder
in an amended information which reads as follows:
The undersigned accuses the above-named accused of the crime of Serious
Illegal Detention with Murder under Art. 267 in relation to Articles 248 and 48
of the Revised Penal Code, committed as follows:

That on or about May 28, 1976, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the abovementioned accused being
then a private person, wilfully, unlawfully and feloniously and for the purpose
of extorting ransom from spouses Ricardo Yap and Myrna Yap, illegally
detained their three (3) year old child Oliver Yap, a minor, from May 28 to 29,
1975 and with treachery, evident premeditation and with intent to kill
wilfully, unlawfully and feloniously attacked, assaulted Oliver Yap by tying his
mouth with stocking, placing him inside a Pallmall cigarette box, covering the
said box with a mat and piece of sack and filing the same with other boxes in
the third floor (bodega) of the house owned by said spouses Ricardo Yap and
Myrna Yap, thereby inflicting upon said Oliver Yap the following to wit:
Asphyxia due to suffocation" which caused the death of said Oliver Yap.
That the commission of the foregoing offense was attended by the following
aggravating circumstances: (1) taking advantage of superior strength; (2)
disregard of the respect due the offended party on account of his age; (3)
that the crime was committed in the dwelling of the offended party; (4) that
the crime was committed with abuse of confidence, she being a domestic
helper (maid) or obvious ungratefulness; (5) that craft, fraud and disguise
was employed; and (6) that the crime was committed with cruelty, by
deliberately and inhumanly augmenting the suffering of the victim.
Contrary to law.
According to the trial judge, "he has appointed as counsel de oficio Atty.
Hildegardo Inigo a bar topnotcher with considerable practice," in view of the
gravity of the offense.
Upon motion of the counsel for the accused, the arraignment was postponed
to enable him to study the charge against the accused. Thereafter, after
being arraigned, the accused Belinda Lora in the presence and with the
assistance of her counsel, entered a plea of guilty in Visayan dialect, which is
her native dialect.
The Court thereafter directed the prosecution to present its evidence and the
counsel for the "accused manifested that the evidence of the defense would
be presented only for proving mitigating circumstances.

Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez,
Fidencio Bisnar, Ricardo Yap, Agaton Bonahos, Emmanuel Mesias, Rolando
Estillori and Juan Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew",
applied as a housemaid in the household of the spouses Ricardo Yap and
Myrna Yap at 373 Ramon Magsaysay Avenue, Davao City. The spouses had a
store on the ground floor; a mezzanine floor was used as their residence;
while the third floor was used as a bodegafor their stocks. They had two
children, Emily and Oliver Yap. Oliver was 3 years and five months old. 1
Belinda Lora was accepted as a housemaid in the residence of the Yaps and
reported for work the following day, May 27, 1975. Her duties were to wash
clothes and to look after Oliver Yap. 2
On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her
mother-in-law and her husband panicky because their son, Oliver, and the
maid, accused Belinda Lora were missing. The mother-in-law had found a
ransom note at the stairway to the mezzanine floor. The note said that Oliver
was to be sold to a couple and that the writer (defendant herein) needed
money for her mother's hospitalization. 3 Four pieces of residence
certificates were also found inside the paper bag of the maid. One residence
certificate bore the No. 1941785 with the name Sumiliw, Lorena Pamintil. 4
The incident was reported immediately to the police. Mrs. Yap, accompanied
by one Mrs. Erlinda Velez, went to look for Oliver and the housemaid. Not
finding them in Davao City, they went to Digos and Bansalan (Davao) and
looked in the hospitals there. The residence certificate in the name of Lorena
Sumiliw was issued in Digos and the ransom letter stated that the mother of
the defendant was very sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at
their residence. The first call was received by Mrs. Yaps's mother-in-law while
the second call was received by Ricardo Yap. Lorena Sumiliw (defendant), the
caller, instructed Ricardo Yap to bring the amount of P3,000.00 to the island
infront of the (Davao) Regional Hospital and to go there alone without any

policeman or companion, after which his son (Oliver) would be left to the
security guard of the hospital at the emergency exit. 6
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI,
the money was marked with Mrs. Yap's initials "MY". 7
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the
Regional Hospital at 9:30 in the evening of May 28, 1975. He placed the
money near the Imelda Playground. He proceeded to the hospital and looked
for his child from the security guard. However, the security guard said
nobody left a boy with him. 8 Ricardo Yap stayed at a corner looking and
calling for his child but could not locate him. After ten minutes, he went back
to where he had placed the money but the money was not there anymore.
He waited until 11:00 o'clock, after which he went home. 9
The following morning, May 29, 1975, Mrs. Yap received a phone call from
the accused informing her that her son was at the Minrapco Terminal and
that she was asking for another P 3,000.00. Mrs. Yap proceeded to the
terminal whereupon she learned that the terminal had moved to a place near
a theatre. When Myrna Yap arrived at the place, she saw the accused board a
Minica bus. She followed and grabbed the accused. 10 As the accused said
that Mrs. Yap's son was brought to the Regional Hospital they proceeded
there. Upon arriving there, a couple, Mr. and Mrs. Bonahos said that the Yap
son was in Panacan. Mrs. Yap and the accused went to Panacan. After arriving
at Panacan the accused told Mrs. Yap that her son was in the custody of a
woman whom she paid P 100.00 and that the woman would return her son at
6:00 o'clock P.M. that day. Mrs. Yap therefore, made the accused sign a
promissory note that she would return Oliver on the same day. 11 After the
accused boarded a bus for Surigao, Mrs. Yap listed down the bus number and
the seat number and reported to Lt. Mesias of the Davao City Police Force
that the "kidnapper" was on board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the
body of the accused was taken an improvised pouch containing 36 pieces of
P 50.00 bills and 24 pieces of P 20.00 bills. The money had initials reading
"MY" below the serial numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in
his house, Ricardo Yap noticed that blood was dripping from the ceiling. He

went upstairs, which was being utilized as a bodega, to verify, and found his
son placed inside the carton of Marlboro cigarettes. The head of the child
was inside the carton while his feet protruded outside. 14 His mouth was tied
with stockings. 15 The child was already dead. 16 He had died of "asphyxhia
due to suffocation. 17
The defendant presented evidence only for the purpose of proving alleged
mitigating circumstances. She claims that she did not intend to kill the child.
18
To support her plea for mercy, she stated that she had three children aged
from one to five years whom she left in Pagadian. 19 On objection to the
materiality of the evidence, the appellant's counsel pleaded that she be
allowed to prove those facts for "humanitarian consideration" which might
enable the Supreme Court to review the penalty with compassion. 20
The defendant capped her testimony with the following plea:
A I would request the Honorable Court that LIFE IMPRISONMENT will be the
penalty imposed upon me because I really committed the crime. I did not
really intend to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir. 21
On cross-examination, the defendant admitted that she gagged the child's
mouth with stockings; placed the child inside the box with head down and
legs up; that she covered the box with some sacks and boxes and left the
child in that condition inside the storeroom of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was
previously shouting, "was already slow and to make sure that his voice would
not be heard I closed the door. 23
On the basis of the plea of guilt of the defendant and the evidence of the
prosecution, the court convicted the defendant with complex crime of serious
illegal detention with murder and imposed, among others, the extreme
penalty of death.

Hence, this automatic review.

The guilt of the defendant is so patent that there is no further need to
discuss the evidence. The only task remaining after the plea of guilty and the
presentation of the undisputed evidence for the prosecution is to determine
the crime committed, the penalty to be imposed and the aggravating and
mitigating circumstances to be appreciated. The crime actually committed is
not the complex crime of kidnapping with murder, as found by the trial court,
but the simple crime of murder qualified by treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11
of theRevised Penal Code. The essence of kidnapping or serious illegal
detention is the actual confinement or restraint of the victim or the
deprivation of his liberty. 24
Where there is no showing that the accused intended to deprive their victims
of their liberty for some time and for some purpose, and there being no
appreciable interval between their being taken and their being shot from
which kidnapping may be inferred, the crimes committed were murder and
frustrated murder and not the complex crimes of kidnapping with murder
and kidnapping with frustrated murder. 25
In the instant case. the gagging of the child with stockings, placing him in a
box with head down and legs upward and covering the box with some sacks
and other boxes were only the methods of the defendant to commit murder.
The child instantly died of suffocation. This is evident from the testimony of
Dr. Juan Abear, Jr. who performed the autopsy on May 30, 1975 at 8 o' clock
in the morning. When Dr. Abear conducted the autopsy, the body of the child
was already in a state of decomposition. Dr. Abear opined that the child must
have died three days before the autopsy. 26 In other words, the child died
practically on the very day that the child was stuffed into the box on May
28,1975.
The demand for ransom did not convert the offense into kidnapping with
murder. The defendant was well aware that the child would be suffocated to
death in a few moments after she left. The demand for ransom is only a part
of the diabolic scheme of the defendant to murder the child, to conceal his
body and then demand money before the discovery of the cadaver.

There is treachery because the victim is only a 3-year old child. 27 The
commission of the offense was attended with the aggravating circumstances
of lack of respect due to the age of the victim, cruelty and abuse of
confidence.
The circumstance of lack of respect due to age applies in cases where the
victim is of tender age as well as of old age. This circumstance was applied in
a case where one of the victims in a murder case was a 12-year-old boy. 28
In the instant case, the victim was only 3 years old. The gagging of the
mouth of a three-year-old child with stockings, dumping him with head
downwards into a box, and covering the box with sacks and other boxes,
thereby causing slow suffocation, is cruelty. There was also abuse of
confidence because the victim was entrusted to the care of the appellant.
The appellant's main duty in the household is to take care of the minor child.
There existed a relation of trust and confidence between the appellant and
the one against whom the crime was committed and the appellant made use
of such relation to commit the crime.
When the killer of the child is the domestic servant of the family and was
sometimes the deceased child's amah the aggravating circumstance of
grave abuse of confidence is present. 29
On the other hand, the defendant invokes the following as mitigating
circumstances, namely; (1) she pleaded guilty; (2) she did not intend to
commit so grave a wrong, (3) she was overcome by fear that her mother will
die unless she is able to raise money for her mother's hospitalization, thus;
she committed kidnaping for ransom (4) the appellant should live so that her
children who are of tender years would not be deprived of a mother; and (5)
we have a compassionate society. 30
The only mitigating circumstance that may be appreciated in favor of the
defendant is her voluntary plea of guilt. Her contention that she had no
intention to kill the child lacks merit. The defendant was well aware that her
act of gagging the mouth of the child with stockings, placing him with head
down and feet up in a box and covering the box with sacks and other boxes
would result to the instant suffocation of the child.
There being three aggravating circumstances, namely, lack of respect due to
the tender age of the victim, cruelty and abuse of confidence and only one

mitigating circumstance in favor of the defendant, she deserves the death

penalty imposed upon her by the lower court.
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime
of murder qualified with treachery and appreciating the aggravating
circumstances already indicated above, We hereby impose the penalty of
death with costs de oficio.
With this modification, the rest of the decision is hereby affirmed.
Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De
Castro, Melencio-Herrera, Ericta, Plana and Escolin, JJ., concur.
G.R. No. L-63243 February 27, 1987
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ROSALIO LAGUARDIA, DANTE BARTULAY, BALTAZAR BERAN, and
RAYMUNDO BARTULAY, accused-appellant.

CRUZ, J.:
In this automatic review of the death sentence imposed upon the lone
accused-appellant, we are asked to determine if, while concededly guilty of
robbery, he should also be held for the killing of the victim notwithstanding
that this was actually done by another person. The Solicitor General says the
judgment should be affirmed because of the proven conspiracy between the
accused-appellant and the actual killer. The defense, on the other hand,
impliedly admits the conspiracy only with respect to the robbery but not as
regards the murder which it claims was not part of the original plan.
The facts, as derived by the lower court from the evidence adduced at the
trial, are briefly narrated as follows:
On September 6, 1979, at about 10:30 o'clock in the evening, Dante Bartulay
and Baltazar Beran, the herein accused-appellant, signaled to a stop a truck
owned by Fortune Tobacco Corporation then being driven by Miguel Chua on
the zigzag road in Kilometer 36 inside the Iwahig Penal Colony at Puerto
Princess in Palawan City. Beran approached one side of the truck and

pretended to borrow a screwdriver and while Chua looked for the tool
Bartulay shouted from the other side of the truck, "This is a hold-up!" With
guns drawn, the two men ordered Chua and his three companions, Benigno
Caca, Frank Morante, and Eduardo Aniar, to alight. Bartulay forced Chua to
lie face down on the ground about 3 meters away from his companions.
Bartulay was pointing a gun at Chua's head. On orders of Bartulay, Beran got
the wallets and watches of the four. Bartulay asked about the money they
were carrying and Chua pointed to its location. Beran got it and gave it to
Bartulay. The money amounted to about P100,000.00. Then, again on orders
of Bartulay, Beran herded the three companions inside the panel where they
were locked. It was while they were still inside the panel that Beran and the
others heard two gunshots. When Beran got off the truck, he saw Chua still
lying on the ground but now bleeding in the head. Thereafter, Beran drove
the truck from the scene of the crime while Bartulay followed in a
motorcycle. Somehow, Caca and Morante managed to escape by jumping
from the truck through a secret exit of the panel. They subsequently reported
the occurrence to the law-enforcement authorities who, returning to the
scene of the crane the following day, found Chua already dead. 1 Beran was
arrested on September 8, 1979, with the amount of P4,500.00 in his
possession and upon questioning pointed to the place where he had hidden
the pistol he had used during the hold-up. 2 Further investigation disclosed
that the motorcycle and guns by Bartulay and Beran were owned by Rosalio
Laguardia, who was Identified by Beran as the mastermind of the
crime. 3 The money stolen was supposed to have been divided in the house
of Raymundo Bartulay Dante's brother. 4
Dante Bartulay could not be tried at the time because he was at large.
Baltazar Beran was found guilty of robbery with homicide and sentenced to
death. Rosalio Laguardia was convicted (presumably as a principal by
inducement) and sentenced to life imprisonment. Raymundo Bartulay was
acquitted for insufficient evidence. 5
This case involves Baltazar Beren only as Laguardia later withdraw his
appeal.
In finding Beran guilty and sentencing him to death, the trial court made the
following conclusion:
... It is undisputed that the crime committed by the accused was
robbery with homicide, and the killing of the victim was done

with the use of a gun. The heinous act was preceded by taking of
the wallets, the watches and the money from the victim of the
robbery. Whenever a homicide has been committed as a
consequence, or on the occasion, of a 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
(Pp. v. Darwin Veloso y Militante, alias Carlito Villareal, accusedappellant, G.R. No. 32900, Feb. 25, 1982). In the case at bar,
evidence is strong and clear that Baltazar Beran did not
endeavor to prevent the homicide of the killing (sic) of Mike Chua
by Dante Bartulay ... 6
The accused-appellant now faults the trial court for holding inter alia that
Beran should be held guilty of the homicide committed on the occasion of
the robbery notwithstanding that he was not the one who actually killed
Chua; that he should have tried to prevent the killing of Chua but did not;
and that the aggravating circumstances of treachery, evident premeditation,
nighttime and use of a motor vehicle should not have been appreciated
against him.
The accused-appellant suggests that the case 7 cited by the lower court in
convicting him is not applicable because the crime involved therein was
robbery with homicide committed by a band whereas the robbery in the
instant case was perpetrated only by two persons. The trial judge did err in
this respect. Nevertheless, as the Solicitor General correctly points out, the
offense, while not covered by Article 296 of the Revised Penal Code, still
comes under Article 294(l) which may also impose the death penalty "when
by reason or on occasion of the robbery, the crime of homicide shall have
been committed" even if cuadrilla is not present.
Under this provision, it is enough to show conspiracy among the participants
in the crime of robbery to render each and every one of them liable for any
homicide that may be committed by reason or on the occasion of such
robbery. And in the instant case, evidence of such conspiracy is not lacking.
Indeed, it is not disputed that Bartulay and Beran together went to the scene
of the crime and lay in wait for Chua's truck; that they together pretended to
borrow a screwdriver from the victim; that while Bartulay pointed a gun at
Chua and his companions, Beran divested them of their cash and watches;
that Beran got the bag containing P100,000.00 on orders of Bartulay; that
also on the latter's orders, Beran locked up Chua's three companions in the

panel; that Beran drove the stolen truck away from the scene of the crime
while Bartulay followed in the motorcycle; and that Beran later got P4,500.00
as his share of the stolen money.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it, whether they
act through the physical volition of one or all proceeding severally or
collectively.8 It is also a settled rule that conspiracies need not be established
by direct evidence of acts charged but may and generally must be proved by
a number of indefinite acts, conditions, and circumstances which vary
according to the purpose accomplished. The very existence of a conspiracy is
generally a matter of inference deduced from certain acts of the persons
accused, done in pursuance of an apparent criminal or unlawful purpose in
common between them. The existence of the agreement, or joint assent of
the minds, need not be proved directly. 9
Confronted with the established fact of conspiracy to commit the robbery,
the accused-appellant cannot plead that he should not be held responsible
for the murder on the ground that he did not conspire to commit it or that he
had no opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery was conclusively
shown by the concurrent and coordinate acts of the accused, and homicide
was committed as a consequence or on the occasion of the robbery, all the
accused are guilty of robo con homicidio whether or not they actually
participated in the killing." 10
That rule was applied in People v. Puno, 11 where the accused and
confederate Tenarife, in pursuance of a preconceived plan, boarded a jeep
and help up its passengers, with Tenarife killing one of them after divesting
him of his wallet and his watch. Puno himself robbed another passenger but
did not participate in the shooting of the deceased victim. Nonetheless he
was held guilty of robbery with homicide as the killing was committed by
Tenarife in connection with the robbery which Puno and Tenarife had
conspired to commit.
Generally, when robo con homicidio has been proven, all those
who had taken part in the robbery are guilty of the complex
crime unless it appears that they endeavored to prevent the
homicide (U.S. v. Macalalad, 9 Phil. 1; Decisions of Supreme

Court of Spain dated Feb. 23 and April 30, 1972 and June 19,
1980; 3 Viada, Codigo Penal 347, 354, 358). 12
It may be observed that, although Puno did not actually take part
in the killing of Oyong by Tenarife, his presence in the jeepney
was a crucial factor that emboldened his confederate in
perpetrating that homicidal act with impunity. 13
In People v. Veloso,

14

this Court held:

... Well entrenched is the rule that whenever a homicide has

been committed as a consequence, or on the occasion, of a
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 clearly appears that they endeavored
to prevent the homicide.
That decision cited the earlier case of People v. Mangulabnan,
categorically declared:

15

where it was

... in order to determine the existence of the crime of robbery

with homicide it is enough that a homicide would result by
reason or on the occasion of the robbery (Decision of Supreme
Court of Spain of Nov. 26, 1892, and Jan. 7, 1878, quoted in 2
Hidalgo's Penal Code, p. 267, and 259-260, respectively). This
High Tribunal speaking of the accessory character of the
circumstances leading to the homicide, has also held that it is
immaterial that the death would supervene by mere
accident(Decision of Sept. 9, 1886, Oct. 22, 1907, April 30, 1910
and July 14, 1917), provided that the homicide be produced by
reason or on the occasion of robbery, inasmuch as it is only
the resultobtained, 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
(Decision of Jan. 12, 1889 see Cuello Calon's Codigo, Penal pp.
501-502; Emphasis supplied).
It is futile therefore for the accused-appellant to argue that he was inside the
panel with the companions of Chua when the latter was killed by Bartulay
and could not have stopped the shooting. The undisputed fact is that the

killing was committed on the occasion of the robbery which Beran and
Bartulay plotted and were carrying out together. In the absence of clear
evidence that he endeavored to prevent it, Beran is as guilty of the homicide
as Bartulay although it was Bartulay who pulled the trigger.
Concerning the aggravating circumstances which the accused-appellant
insists should not have been taken against him, the Court notes that no
specific finding regarding such circumstances was made by the trial judge,
who simply meted out the penalties without explanation. The trial judge,
notably, did not say why, after finding both Beran and Laguardia guilty, the
former should be sentenced to death and the latter only to life imprisonment.
If any error has been committed with respect to Laguardia's penalty and
the circumstances so indicate it is too late to correct it now as the same
has long since become final. By withdrawing his appeal, Laguardia may have
benefited from the trial judge's carelessness.
The trial court also does not clearly impute to Beran any ag gravating
circumstance and merely hints at nighttime and use of motor vehicle almost
in passing. This is another censurable flaw in the decision. It is no wonder
that the case itself is perplexed over the accused-appellant's assignment of
error that the trial court had taken the said several aggravating
circumstances against him.
In any event, it is clear that, as alleged in the amended information, the
crime committed by Beran was aggravated by despoblado and justified the
imposition on him of the death penalty as prescribed by Article 294 of the
Revised Penal Code. The evidence shows that the accused lay in wait for the
truck being driven by Chua at an isolated portion of Highway 36, choosing
that particular spot where they could commit the crime they were planning
without disturbance or discovery and with easy opportunity for
escape. 16 The use of motor vehicles is also appreciated because the
conspirators drove away from the scene of the crime to facilitate their
escape and also to prevent the other passengers of the truck, whom they
took with them, from reporting the offense to the authorities. 17
Nighttime is rejected, however, because it was not especially sought, as
Chua's trip schedule and not the discretion of the culprits determined the
time of its commission. Evident premeditation is, of course, inherent in the
crime of robbery and was not proved in the commission of the killing. As for
treachery, there is no evidence of its employment as none of the witnesses

actually saw the shooting of Chua, being all inside the panel when they
heard the fatal shots.
Miguel Chua was only 32 years old at the time he was killed and left a wife
and three children aged, respectively, 11, 10 and 8, the youngest a daughter.
To provide for his family, he was willing to work even at night, not unaware
perhaps, given the condition of the times, of the dangers that lurked in the
desolate routes he traveled, considering especially the sizeable amounts of
money he often carried. If he was nonetheless undeterred, it was probably
because, like the promising young man that he was, he had a dream for the
future. Tragically, that dream died with him on the lonely stretch of road
where greed lay in ambush with a gun.
The indemnity for the death of Chua is increased to P30,000.00. Funeral
expenses amounted to P16,500.00. 18As the victim was earning at the time
of his death a monthly compensation of P2,500.00, 19 consisting of salary and
commission, or P30,000.00 annually, and could have lived about 24 more
years, 20 his total earnings for the period would have amounted to
P720,000.00. The heirs are also entitled to this amount plus P10,000.00
moral damages and P10,000.00 exemplary damages. 21
WHEREFORE, the appealed decision is AFFIRMED as MODIFIED but in view of
the provisions of the new Constitution, the death penalty is reduced
to reclusion perpetua. The accused-appellant shall also pay the civil
indemnity specified above, and costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez,
Jr., Paras, Feliciano, Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.
G.R. No. 178541

March 27, 2008

PEOPLE
OF
THE
vs.
ANGELO ZETA, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:

PHILIPPINES, Plaintiff-Appellee,

For review is the Decision dated 30 June 2006 of the Court of Appeals in CAG.R. CR-H.C. No. 02054,1 affirmingin toto the Decision2 dated 29 November
2002 of the Quezon City Regional Trial Court (RTC), Branch 88, in Criminal
Case No. Q-95-63787, finding accused-appellant Angelo Zeta and his wife,
Petronilla Zeta (Petronilla), guilty of murder.
The facts are as follows:
On 6 November 1995, an Information 3 was filed before the RTC charging
appellant and Petronilla of Murder, thus:
That on or about the 28th day of October 1995, in Quezon City, Philippines,
the said accused, conspiring together, confederating with and mutually
helping each other, with intent to kill, did then and there, willfully, unlawfully
and feloniously with evident premeditation, treachery, assault, attack and
employ personal violence upon the person of RAMON GARCIA y LOPEZ by
then and there shooting the latter with the use of a .45 cal. pistol hitting him
on the different parts of his body, thereby causing the instant and immediate
cause of his death, to the damage and prejudice of the heirs of said RAMON
GARCIA Y LOPEZ.
When arraigned on 20 December 1995, appellant and Petronilla, assisted by
their respective counsels de parte, pleaded "Not Guilty" to the charge of
murder.4 Trial on the merits thereafter ensued.
The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria
Cristina Freyra (Dr. Freyra), Police Inspector Solomon Segundo (Inspector
Segundo), Rey Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco Garcia
(Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and SPO2 Wakab
Magundacan (SPO2 Magundacan). Their testimonies, taken together, bear
the following:
On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain
Melvin Castillo (Melvin) had a drinking spree outside the house of Rey located
at No. 30-B Tacio Street, La Loma, Quezon City. At about 2:00 in the morning
of the same date, a car stopped in front of the three. Appellant was driving
the car while Petronilla was seated beside him. Petronilla opened the cars
window and asked Edwin if he knows Ramon and the latters address at No.
25-C General Tinio Street, La Loma, Quezon City. Edwin replied that he did
not know Ramon or his address. Thereafter, appellant and Petronilla left on
board the car and proceeded to General Tinio Street, La Loma, Quezon City.5

At about 2:15 in the morning of the same date, the car boarded by appellant
and Petronilla stopped in front of Ramons house at No. 25-C General Tinio
Street, La Loma, Quezon City. After parking nearby, appellant and Petronilla
alighted from the car and proceeded to Ramons house. Petronilla repeatedly
called Ramon. Aleine (niece of Cristina Mercado, Ramons common-law wife)
was awakened by the repeated calls and opened the door. Petronilla
requested Aleine to call Ramon. Aleine told Petronilla that she would wake up
Ramon who was then sleeping with Cristina at the second floor of the house.
Aleine invited appellant and Petronilla inside the house but the two replied
that they would just wait for Ramon outside. Aleine proceeded to the second
floor of the house and knocked at the door of Ramons room. Ramon woke
up. Subsequently, Aleine went downstairs and proceeded to the dining table.
While Ramon was walking down the stairs, appellant suddenly entered the
house and shot Ramon several times on different parts of the body with a
caliber .45 Llama pistol. Upon seeing appellant shooting Ramon, Aleine hid
inside the restroom. When the gunshots ceased, Aleine went out of the
restroom and saw Ramon sprawled and bloodied on the ground floor.6
Edwin, Rey and Melvin were still drinking when they heard the gunshots.
They rushed to the direction of Ramons house. When they were nearing
Ramons house, Petronilla suddenly stepped out of the main door of Ramons
house followed by appellant. Melvin uttered, "Mamamatay tao." Petronilla
merely looked at them and entered the car. Appellant also proceeded inside
the car and thereafter the car sped away.7
Subsequently, Aleine went out of the house and called for help. Edwin, Rey
and Melvin approached her. They carried Ramon and placed him inside a
vehicle owned by a neighbor. While they were on their way to the Chinese
General Hospital, Ramon told Aleine that the one who shot him was "asawa
ni Nellie na kapitbahay namin sa Las Pias." Ramon died due to gunshot
wounds while being operated on at the Chinese General Hospital. Thereafter,
the police arrived at the crime scene and recovered several empty bullet
shells and slugs.8
At about 10:55 the following morning, SPO2 Magundacan received a report
that a carnapped vehicle was parked along Lakandula Street, P. Tuazon Blvd.,
Quezon City. SPO2 Magundacan proceeded thereat and saw appellant about
to board a car armed with a gun visibly tucked in his waist. SPO2
Magundacan approached appellant and asked him for a license and/or
registration papers of the gun but appellant did not show any. SP02

Magundacan also inquired from Petronilla, who was inside the car also armed
with a gun tucked in her waist, if she had a license but Petronilla likewise
failed to show any. Thus, SPO2 Magundacan brought appellant and Petronilla
to Police Precinct 8, Project 4, Quezon City, for investigation. Subsequently,
appellant and Petronilla, upon the request of the La Loma police, were turned
over to the police station for investigation as regards the killing of Ramon.
Appellant and Petronilla were thereafter charged with murder.9
The prosecution also adduced documentary and object evidence to buttress
the testimonies of its witnesses, to wit: (1) death certificate of Ramon; 10 (2)
sworn statement of Aleine;11 (3) request for autopsy examination of Ramons
body;12 (4) medico-legal report issued and signed by Dr. Freyra stating that
Ramon died due to gunshot wounds;13 (5) anatomical sketch of a human
body signed by Dr. Freyra indicating the location of the gunshot wounds on
Ramons body;14 (6) physical science report stating that a paraffin test was
conducted on both hands of Ramon and they were found negative for
gunpowder nitrates;15 (7) handwritten sketch made by Edwin depicting the
streets of Tacio and General Tinio;16 (8) request for ballistic examination of
the object evidence recovered from the crime scene; 17 (9) ballistic report
issued and signed by Inspector Segundo stating that the bullet extracted
from Ramons body and other bullets recovered from the crime scene were
similar to the bullets of the caliber .45 Llama pistol seized from
appellant;18 (10) certification from the Personnel Division of the Philippine
Long Distance Telephone Company (PLDT) affirming that Ramon was its
regular employee from 14 February 1981 up to 27 October 1995 and that he
was receiving a monthly salary of P13,687.00 plus other benefits;19 (11)
summary of expenses and receipts for the wake of Ramon; 20 (12) joint
affidavit of SPO2 Magundacan and a certain PO2 Ronald Zamora; 21 (13)
photographs showing the spot where appellant and Petronilla stood while
waiting for Ramon, the stairs where Ramon walked down shortly before he
was shot several times by appellant, the area inside Ramons house where
appellant positioned himself while shooting at Ramon, and the location
where Ramon fell down after he was shot several times by appellant; 22 (14)
nine empty shells and seven deformed slugs fired from a caliber .45 pistol
which were recovered by SPO1 Villarin from the crime scene; 23 (15) a
deformed slug fired from a caliber .45 pistol which was extracted from
Ramons body; (16) test bullets fired from the caliber .45 Llama pistol seized
from appellant;24 (17) the caliber .45 Llama pistol with Serial Number C27854 seized from appellant;25 and (18) a calling card recovered from Ramon

with the print label "Cristine Rent A Car," "Angelo D. Zeta" and with
telephone numbers and addresses.26
For its part, the defense presented the testimonies of appellant, Petronilla,
and Annabelle Vergara (Annabelle) to refute the foregoing allegations. Their
version of the incident is as follows:
On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and
Annabelle (housemaid of the couple) were in the couples house at Cainta,
Rizal.27 Later, appellant took Petronillas caliber .38 pistol and went to his
brothers (Jose Zeta, Jr.) house in Marikina arriving therein at around 12:00
midnight. Jose was out of the house so appellant waited for him. At about
2:30 in the morning of 28 October 1995, Jose arrived. Thereafter, appellant
demanded from Jose the return of his three firearms, one of which is a caliber
.45 pistol. Jose, however, handed only the caliber .45 pistol to appellant.
Appellant berated Jose for refusing to return the two other firearms. Irked,
Jose drew a gun. Appellant also drew the caliber .45 pistol and shot Jose four
times. Jose fell down on the ground. Afterwards, appellant left the house,
took Joses car which was parked near the house, and proceeded to Police
Precinct 8, Project 4, Quezon City, where he waited for a certain Tony
Tolentino whom he claims to be a policeman assigned at the Southern Police
District. At about 9:00 in the morning of 28 October 1995, the policeman on
duty at Precinct 8 informed appellant that the latters car parked inside the
precinct was a carnapped vehicle. The policemen searched the car and found
several guns including the caliber .45 and the caliber .38. Appellant was
thereupon detained and charged with illegal possession of firearms and
carnapping.28
At about 10:00 in the morning of 28 October 1995, Petronilla received a
telephone call informing her that appellant was at Police Precinct 8, Project 4,
Quezon City. She immediately proceeded thereat and presented documents
relative to her ownership and license of the caliber .38 seized from appellant.
Thereafter, she went home at about 11:00 in the evening.29
On 2 November 1995, Petronilla visited appellant at Precinct 8. During the
visit, Aleine arrived at Precinct 8 and pointed to appellant and Petronilla.
Subsequently, appellant and Petronilla were informed by the police that they
were suspects in the killing of Ramon. Thereafter, they were charged with
murder.30

After trial, the RTC rendered a Decision on 29 November 2002 convicting

appellant and Petronilla of murder. It held that appellant and Petronilla
conspired in killing Ramon. It also ruled that Ramons killing was attended by
the aggravating circumstances of evident premeditation and nocturnity. In
conclusion, it imposed the death penalty on appellant while Petronilla was
merely sentenced to reclusion perpetua "owing to her being a mother and
her lesser degree of participation in the killing of Ramon." The fallo of the
decision reads:
Accordingly, based on the evidence presented by the prosecution and the
defense and finding both accused guilty beyond reasonable doubt of the
crime of MURDER attended by the aggravating circumstances of evident
premeditation and nocturnity without being offset by any mitigating
circumstances, the accused Angelo Zeta is hereby sentenced to death by
lethal injection. The wife and co-accused Petronilla Zeta, although a coconspirator in the commission of the offense charged, is hereby sentenced to
RECLUSION PERPETUA owing to her being a mother and her lesser degree of
participation in the act of murder.
The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify
in SOLIDUM the heirs of the victim in the amount of P50,000.00 for the death
of Ramon Garcia; P146,000.00 for the hospital and burial expenses;
and P1,642,440.00 for the lost income of the deceased reckoned at 10 years
of productive life, plus costs.
The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in
favor of the Government to be kept by the Philippine National Police as
mandated by law.31
On 9 December 2002, the RTC issued an Order forwarding the records of the
instant case to Us for automatic review because of the death penalty
imposed on appellant.32
On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC
stating that she would appeal her conviction to this Court.33
On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw
Appeal before us34 stating that:
After a thorough review of the available stenographic notes obtained by the
close relatives of the accused-appellant from the Regional Trial Court, the

undersigned counsel found out that there are no testimonial and/or

documentary evidence presented before the lower Trial Court that could
sufficiently serve as justifiable basis to warrant the reversal of the appealed
decision rendered insofar as PETRONILLA ZETA is concerned.
Moreover, the undersigned counsel sustained serious physical injuries that
render difficult to further handle the appeal that will require lengthy
preparation of appellants brief and other legal pleadings as may be required
under the Rules of Court.
Consequently, after discussion with accused-appellant PETRONILLA ZETA, the
undersigned counsel informed her that he is now constrained to withdraw his
appearance in the above-entitled appealed case.
Upon being informed of the health predicament of the undersigned counsel
and after being enlightened about the weakness of the appeal, accusedappellant PETRONILLA ZETA willfully and voluntarily decided to WITHDRAW
the appeal and do hereby signify to the Honorable Court that she is no longer
interested in the further prosecution of her appeal. She, likewise, has no
objection to the withdrawal of the appearance of Atty. Alfredo E. Anasco, as
her counsel in the above-entitled case.
WHEREFORE, it is respectfully prayed that the above-entitled appeal be
ordered withdrawn and the MOTION TO WITHDRAW APPEAL be GRANTED,
and the withdrawal of appearance of counsel be given due course.
On 28 September 2004, we issued a Resolution granting Petronillas motion
to withdraw appeal.35
On 22 November 2005, we issued a Resolution remanding the instant case to
the Court of Appeals for proper disposition pursuant to our ruling in People v.
Mateo.36 On 30 June 2006, the Court of Appeals promulgated its Decision
affirming in toto the Decision of the RTC. Thus:
Thus, after finding that the trial courts conclusions are supported by the
evidence presented and in full accord with existing law and jurisprudence,
We find no reason to set it aside.
WHEREFORE, based on the foregoing premises, the appeal is hereby
DISMISSED. The November 29, 2002 Decision of the Regional Trial Court of
Quezon City, Branch 88 in Criminal Case No. Q-95-63787 is AFFIRMED.37

Appellant elevated the present case before us on the following grounds:

I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE FACT THAT THE PROSECUTION WITNESSES
DID NOT POSITIVELY IDENTIFY HIM;
II.
THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL
AND ALIBI INTERPOSED BY THE ACCUSED-APPELLANT;
III.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE FACT THAT HIS GUILT WAS UNDER A SHADOW OF
DOUBT.38
Apropos the first issue, appellant claims that although Edwin and Rey
positively identified Petronilla as the one who asked them about Ramon and
his address shortly before the incident occurred, the two, nevertheless, failed
to identify appellant as Petronillas companion during the said questioning.
He also argues that Aleines testimony identifying him as the one who shot
Ramon during the incident is not morally certain because Aleine narrated
that she saw only the side portion of his face and the color of the shirt he
wore during the incident.39
It appears that Edwin and Rey did not actually see appellant shoot Ramon
during the incident. Nonetheless, Aleine saw appellant shoot Ramon on that
fateful night. Her positive identification of appellant and direct account of the
shooting incident is clear, thus:
ATTY. A. OLIVETTI (DIRECT EXAMINATION)
Q. Aleine Mercado, are you the same Aleine Mercado who is listed as
one of the witnesses in this case?
WITNESS
A. Yes, sir.

Q. Do you know the accused in this case?

A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. Will you please look around and point before the Honorable Court
the person of the accused in this case?
A. Yes, sir. That man wearing yellow T-shirt and that lady who is also
wearing yellow shirt. (witness pointing to a man who when asked of his
name identified himself as Angelo Zeta and to a lady beside Angelo
Zeta who when asked of her name identified herself as Petronilla Zeta.)
xxx
Q. On October 28, 1995, at about 2:15 in the morning, do you
remember if there was an unusual incident that happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living with your
auntie and Tito Ramon Garcia in Gen. Tinio, La Loma, Quezon City. Will
you please describe before the Honorable Court the residence or your
house at that time where you were living with your auntie and Tito
Ramon Garcia?
A. It is a small house we were living in. It has a mezzanine and it
measures 4 x 3 meters, sir.
xxxx

Q. Do you know the person who shot your Tito Ramon Garcia?
A. Yes, sir.
Q. Will you please tell the Honorable Court the name of the person who
shot Ramon Garcia?
A. Angelo Zeta.
Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?
A. Inside our house, sir.
Q. And how was he able to enter your house?
A. Our door then was opened, sir.
Q. Why was your door opened at that time?
A. I heard a woman calling for my Tito Ramon and so I opened the
door, sir.
Q. What time was this Madam Witness?
A. 2:15.
Q. 2:15 in the afternoon?
A. 2:15 in the morning, your honor.
xxxx
ATTY. A. OLIVETTI
Q. And who was that woman that you saw was outside calling Mr.
Ramon Garcia?
A. Petronilla Zeta, sir.
Q. When you opened the door and you saw this woman, what
happened between you and her?

A. She asked me if a certain Ramon Garcia was there.

Q. What was your reply?
A. I told her he was sleeping. He was upstairs.
Q. And what did the woman do after that if she did anything?
A. She told me to call for my Tito Ramon.
Q. What did you do after she asked you to call Mr. Ramon Garcia?
A. I told her to enter before I call my Tito Ramon but they answered
that they will remain outside.
Q. And so after they refused to enter the house, what did you do as
they were asking you to call Mr. Ramon Garcia?
A. I told them to wait and then I went upstairs.
Q. What did you do upstairs?
A. I knocked at the door to wake up my Tito Ramon.
xxxx
Q. And was your Tito Ramon able to wake up?
A. When I felt that they were awakened, I went downstairs.
Q. Where in particular downstairs did you go?
A. Near our dining table, sir.
Q. How long was it from the door? How far was it from the door?
A. Two-arms-length, sir, or "dalawang dipa," sir.
Q. And what happened as you stood by downstairs?
A. While Tito Ramon was going down, sir, Angelo Zeta suddenly
entered our house and immediately shot him several times.

Q. How far were you from Mr. Angelo Zeta when you saw him?
I withdraw that.
How far were you from Mr. Angelo Zeta when you saw him suddenly
entered the house and shot Mr. Ramon Garcia?
A. Less than one meter, sir.
x x x x.
Q. Where was Petronilla Zeta at that time that the shooting occurred?
A. She was outside the door, sir.
xxxx
Q. What did you do as you were standing and while Mr. Angelo Zeta
was shooting Mr. Ramon Garcia inside the house?
A. When I heard two shots, I run to the C.R. or comfort room.
Q. As you were in the C.R., what happened?
A. I heard successive shots, sir.
Q. How long did you stay in the C.R.?
A. Until the shots had stopped . . . Until the firing had stopped, sir.
Q. And you sensed that the firing had stopped, what did you do?
A. I slowly opened the door to take a look if Angelo Zeta and
companion were still there.
Q. And what did you see?
A. They were no longer there, sir.
Q. And you saw that they have guns, what did you do?

A. I went out of the C.R. and I returned to the place where I was before
where I was previously standing.
Q. And what did you see when you reached that portion that you are
talking about?
A. I saw Tito Ramon lying frustrate and blooded.
Q And what did you do when you see (sic) him on that particular
condition?
A. I peeped at the door to find out if Angelo Zeta and companion were
still there.
Q. And what did you see?
A. They were no longer there.
Q. And what did you do after that?
A. I knocked at the door of the owner of the house to ask for help.40
It should be emphasized that the testimony of a single witness, if positive
and credible, as in the case of Aleine, is sufficient to support a conviction
even in the charge of murder.41
Appellants argument that Aleines testimony identifying him as the one who
shot Ramon is not morally certain because she saw only the side portion of
his face and the color of the shirt he wore during the incident, deserves scant
consideration. A person can still be properly identified and recognized even
by merely looking at the side portion of his face. To be sure, Aleine
recognized and identified appellant in the police line-up and during trial as
the one who shot Ramon. Experience dictates that precisely because of the
unusual acts of violence committed right before their eyes, witnesses can
remember with a high degree of reliability the identity of criminals at any
given time.42 A startling or frightful experience creates an indelible
impression in the mind that can be recalled vividly. 43 It bears stressing that
Aleine was less than one meter away from appellant when the latter shot
Ramon. The crime scene was also well-lighted during the incident because
there was a fluorescent bulb inside the house.44

The testimonies of Aleine and of the other prosecution witnesses are in

harmony with the documentary and object evidence submitted by the
prosecution. The RTC and the Court of Appeals found their testimonies to be
credible and trustworthy. The rule is that the findings of the trial court, its
calibration of the testimonies of the witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings
are accorded respect if not conclusive effect. This is more true if such
findings were affirmed by the appellate court. When the trial courts findings
have been affirmed by the appellate court, said findings are generally
binding upon this Court.45
Anent the second and third issues, appellant contends that his conviction is
unwarranted based on the following reasons: (1) the prosecution failed to
establish any possible motive for the appellant to kill Ramon; (2) there is an
inconsistency in the testimony of the prosecution witnesses regarding the
type and color of the car boarded by appellant and Petronilla before and after
the incident. Edwin testified that appellant and Petronilla left the scene on
board a gold-colored Mitsubishi Lancer; while SPO2 Magundacan
narrated that he apprehended appellant while the latter was about to board
a blue Toyota Corona Macho; (3) Jose could have been the one who fatally
shot Ramon and appellant could have been mistakenly identified as Jose
because they have the same physical appearance and facial features; (4) if
appellant was indeed the one who shot Ramon, he could have immediately
confessed such crime to the police just like what he did after killing Jose; and
(5) there is no proof that appellant is the husband of a certain "Mely."
Ramons dying declaration to Aleine was that it was the husband of "Mely,"
his former neighbor in Las Pinas, who shot him. Further, Petronillas
nickname could either be "Nellie" or "Nelia" and not "Mely" as referred to by
Ramon.46
Lack of motive does not preclude conviction when the crime and the
participation of the accused in the crime are definitely shown, particularly
when we consider that it is a matter of judicial knowledge that persons have
killed or committed serious offenses for no reason at all. Motive gains
importance only when the identity of the culprit is doubtful. 47 Where a
reliable eyewitness has fully and satisfactorily identified the accused as the
perpetrator of the felony, motive becomes immaterial to the successful
prosecution of a criminal case. 48 It is obvious from the records that Aleine
positively and categorically identified appellant as the person who shot

Ramon during the incident. Her testimony was corroborated on relevant

points by Edwin and Rey.
There is no inconsistency in the testimonies of the prosecution witnesses
regarding the car boarded by appellant and Petronilla in leaving the crime
scene and, subsequently, at the time they were apprehended. Edwin testified
that appellant and Petronilla left the scene after the incident which was
between 2:15 and 2:30 in the morning on board a gold-colored Mitsubishi
Lancer.49 SPO2 Magundacan told the court that he apprehended appellant at
around 10:55 in the morning of the same day while the latter was about to
board a blue Toyota Corona Macho.50 In his affidavit attached to the
records, Jan Ryan Zeta, son of Jose, narrated that Jose was shot by appellant
at about 4:00 in the morning of the same date. 51 Appellant admitted that
after shooting Jose on the early morning of 28 October 1995, he took the
latters Toyota Corona Macho and left.52 Thus, it is probable that after leaving
the crime scene at La Loma on board a gold Mitsubishi Lancer at about 2:15
or 2:30 in the morning, appellant and Petronilla then proceeded to Marikina
and took Joses blue Toyota Corona Macho. This explains why the car of
appellant and Petronilla used in leaving the crime scene was different from
that which they used at the time of their apprehension.
Appellants theory of alibi that it was physically impossible for him to be at
the crime scene in La Loma when the incident occurred because he was in
Marikina, and that Jose could have been the one who fatally shot Ramon is
flimsy and cannot prevail over the positive and credible testimony of Aleine.
Appellant was mistakenly identified as Jose because they have the same
physical appearance and facial feature. In addition, the empty bullet shells
and slugs recovered from the crime scene were found to have the same
characteristics as those of the bullets of appellants caliber .45 Llama pistol.
Further, there is no testimonial or documentary proof showing that it was
Jose who shot Ramon. Appellant himself testified that he met Jose in the
latters house in Marikina at about 2:30 in the morning of 28 October 1995.
On the other hand, the shooting of Ramon at La Loma, Quezon City occurred
at about 2:15 in the morning of the same date. Hence, it was impossible for
Jose to be at La Loma, Quezon City and to have shot Ramon at such time and
place.
It is insignificant whether Petronilla was referred to by Ramon in his dying
declaration as "Mely" or "Nellie." As correctly observed by the Court of
Appeals, Ramon sustained twelve gunshot wounds and was catching his

breath when he uttered the name or nickname of Petronilla as the wife of

appellant. Thus, understandably, he could not have spoken clearly in such a
difficult situation. Moreover, Ramon referred to "Nellie" or "Mely" as his
former neighbor in Las Pias. Likewise, appellant and Petronilla admitted that
Ramon was their former neighbor in Las Pias.53
We now go to the propriety of the penalty imposed and the damages
awarded by the RTC which the Court of Appeals affirmed.
The RTC held that the killing of Ramon qualifies as murder because of the
presence of the aggravating circumstances of evident premeditation and
nighttime or nocturnity. It is a rule of evidence that aggravating
circumstances must be proven as clearly as the crime itself. 54
Evident premeditation qualifies the killing of a person to murder if the
following elements are present: (1) the time when the offender determined
to commit the crime; (2) an act manifestly indicating that the culprit clung to
his resolve; and (3) a sufficient interval of time between the determination or
conception and the execution of the crime to allow him to reflect upon the
consequence of his act and to allow his conscience to overcome the
resolution of his will if he desired to hearken to its warning.55
The first two elements of evident premeditation are present in the case at
bar.
The time manifesting Petronilla and appellants determination to kill Ramon
was when they, at about 2:00 in the morning of 28 October 1995, repeatedly
asked Edwin about Ramon and the latters address, and when they
subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon, and appellants
subsequent act of shooting him at around 2:15-2:30 in the morning of 28
October 1995 indicate that they had clung to their determination to kill
Ramon.
The third element of evident premeditation, however, is lacking in the instant
case. The span of thirty minutes or half an hour from the time appellant and
Petronilla showed their determination to kill Ramon (2:00 in the morning of
28 October 1995) up to the time appellant shot to death Ramon (2:15-2:30 in
the morning of 28 October 1995) could not have afforded them full
opportunity for meditation and reflection on the consequences of the crime

they committed.56 We have held that the lapse of thirty minutes between the
determination to commit a crime and the execution thereof is insufficient for
a full meditation on the consequences of the act.57
The essence of premeditation is that the execution of the criminal act must
be preceded by cool thought and reflection on the resolution to carry out the
criminal intent during a space of time sufficient to arrive at a calm judgment.
To justify the inference of deliberate premeditation, there must be a period
sufficient in a judicial sense to afford full opportunity for meditation and
reflection and to allow the conscience of the actor to overcome the resolution
of his will if he desires to hearken to its warning. Where no sufficient lapse of
time is appreciable from the determination to commit the crime until its
execution, evident premeditation cannot be appreciated.58
Nonetheless, we find that treachery attended the killing of Ramon.
There is treachery when the offender commits any of the crimes against a
person, employing means, methods or forms in the execution thereof which
tend directly and specially to ensure its execution, without risk to himself
arising from any defensive or retaliatory act which the victim might
make.59 The essence of treachery is a deliberate and sudden attack that
renders the victim unable and unprepared to defend himself by reason of the
suddenness and severity of the attack. Two essential elements are required
in order that treachery can be appreciated: (1) the employment of means,
methods or manner of execution that would ensure the offenders safety
from any retaliatory act on the part of the offended party who has, thus, no
opportunity for self-defense or retaliation; and (2) a deliberate or conscious
choice of means, methods or manner of execution. Further, this aggravating
circumstance must be alleged in the information and duly proven.60
In the case at bar, treachery was alleged in the information and all its
elements were duly established by the prosecution.
It has been established that Ramon, still groggy after having been awakened
by Aleine, was walking down the stairs when appellant suddenly shot him.
The suddenness and unexpectedness of the appellants attack rendered
Ramon defenseless and without means of escape. Appellant admitted that
he was a member of a gun club and was proficient in using his caliber .45
Llama pistol.61 In fact, he was good at shooting a moving target during his
practice.62 He also stated that he owned five firearms. 63 Evidently, appellant
took advantage of his experience and skill in practice shooting and in guns to

exact the death of Ramon. There is no doubt that appellants use of a

caliber .45 Llama pistol, as well as his act of positioning himself in a shooting
stance and of shooting Ramon several times on the chest area and on other
parts of body, were obviously adopted by him to prevent Ramon from
retaliating or escaping. Considering that Ramon was unarmed, groggy from
sleep, and was casually walking down narrow stairs unmindful of the danger
that lurked behind, there was absolutely no way for him to defend himself or
escape.
As regards the appreciation by the RTC of the aggravating circumstance of
nocturnity, it should be underscored that nocturnity or nighttime is, by and of
itself, not an aggravating circumstance. It becomes so only when (1) it was
especially sought by the offender; or (2) it was taken advantage of by him; or
(3) it facilitated the commission of the crime by ensuring the offenders
immunity from capture.64
Although the crime in the instant case was committed between 2:15 and
2:30 in the morning, no evidence was presented showing that nighttime was
especially and purposely sought by appellant to facilitate the commission of
the crime, or that it was availed of for the purpose of impunity. Moreover, the
crime scene was well-lighted by a fluorescent bulb. We have held that
nocturnity is not aggravating where the place of the commission of the crime
was well-illuminated.65
Even if we were to assume that nocturnity was present in the case at bar,
this cannot still be appreciated in view of the presence of treachery that
attended the killing of Ramon. Nighttime cannot be considered an
aggravating circumstance separate from treachery, since nighttime is
absorbed in treachery.66
Accordingly, the death penalty imposed by the RTC on appellant should be
modified. Article 248 of the Revised Penal Code states that murder is
punishable by reclusion perpetua to death. Article 63 of the same Code
provides that if the penalty is composed of two indivisible penalties, as in the
instant case, and there are no aggravating or mitigating circumstances, the
lesser penalty shall be applied. Since there is no mitigating or aggravating
circumstance in the instant case, and treachery cannot be considered as an
aggravating circumstance as it was already considered as a qualifying
circumstance, the lesser penalty of reclusion perpetua should be imposed.67

The award of damages and its corresponding amount rendered by the RTC
should also be modified in line with current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramons death, the award
of moral damages amounting toP50,000.00 is also proper since it is
mandatory in murder cases, without need of proof and allegation other than
the death of the victim.68
The heirs of Ramon are also entitled to exemplary damages in the amount
of P25,000.00, since the qualifying circumstance of treachery was firmly
established.69
The amount of actual damages should be reduced from P146,000.00
to P115,473.00 per computation of the official receipts attached to the
records.701avvphi1
The heirs of Ramon should also be indemnified for loss of earning capacity
pursuant to Article 2206 of the New Civil Code. 71 Consistent with our previous
decisions,72 the formula for the indemnification of loss of earning capacity is:
Net
Capacity

Earning = Life Expectancy x Gross Annual Income (GAI) - Living

Expenses
= 2/3 (80 - age of deceased) x (GAI - 50% of GAI).

Ramons death certificate states that he was 37 years old at the time of his
demise.73 A certification from Ramons employer, Philippine Long Distance
Telephone Company, shows that Ramon was earning an annual gross income
of P164,244.00.74
Applying the above-stated formula, the indemnity for the loss of earning
capacity of Ramon is P2,354,163.99, computed as follows:
Net Earning Capacity

= 2/3 (43) x (P164,244.00 - P82,122.00)

= 28.66 x P82,122.00
= P2,354,163.99

WHEREFORE, after due deliberation, the Decision of the Court of Appeals

dated 30 June 2006 in CA-G.R. CR-H.C. No. 02054 is hereby AFFIRMED with

the following MODIFICATIONS: (1) the penalty of death imposed on appellant

is lowered to reclusion perpetua; (2) appellant is ordered to pay the heirs of
Ramon Garcia the amounts of P50,000.00 as moral damages and P25,000.00
as exemplary damages; (3) the award of actual damages is reduced
to P115,473.00; and (4) the indemnity for Ramons loss of earning capacity is
increased toP2,354,163.99. The award of civil indemnity in the amount
of P50,000.00 is maintained.
Appellants caliber .45 Llama pistol with Serial Number C-27854 is hereby
confiscated in favor of the Government.
SO ORDERED.
G.R. No. 84163 October 19, 1989
LITO
vs.
THE
PEOPLE
OF
THE
APPEALS, respondents.

VINO, petitioner,
PHILIPPINES

and

THE

COURT

OF

Frisco T. Lilagan for petitioner.

RESOLUTION

GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the
resolution of this Court dated January 18, 1989 denying the herein petition is
whether or not a finding of guilt as an accessory to murder can stand in the
light of the acquittal of the alleged principal in a separate proceeding.
At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left
their house at Burgos Street, Poblacion, Balungao, Pangasinan to go to the
house of Isidro Salazar to watch television. At around 11:00 P.M., while
Ernesto, the father of Roberto, was resting, he heard two gunshots.
Thereafter, he heard Roberto cry out in a loud voice saying that he had been
shot. He saw Roberto ten (10) meters away so he switched on the lights of
their house. Aside from Ernesto and his wife, his children Ermalyn and Julius
were also in the house. They went down to meet Roberto who was crying and

they called for help from the neighbors. The neighbor responded by turning
on their lights and the street lights and coming down from their houses. After
meeting Roberto, Ernesto and Julius saw Lito Vino and Jessie Salazar riding a
bicycle coming from the south. Vino was the one driving the bicycle while
Salazar was carrying an armalite. Upon reaching Ernesto's house, they
stopped to watch Roberto. Salazar pointed his armalite at Ernesto and his
companions. Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col.
Bernardo Cacananta took his ante-mortem statement. In the said statement
which the victim signed with his own blood, Jessie Salazar was Identified as
his assailant.
The autopsy report of his body shows the followingGunshot wound
POE Sub Scapular-5-6-ICA. Pal
1 & 2 cm. diameter left
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension Hemathorax

Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint
filed by PC Sgt. Ernesto N. Ordono in the Municipal Trial Court of Balungao,
Pangasinan. However, on March 22, 1985, the municipal court indorsed the
case of Salazar to the Judge Advocate General's Office (JAGO) inasmuch as
he was a member of the military, while the case against Vino was given due
course by the issuance of a warrant for his arrest. Ultimately, the case was
indorsed to the fiscal's office who then filed an information charging Vino of
the crime of murder in the Regional Trial Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then
commenced with the presentation of evidence for the prosecution. Instead of
presenting evidence in his own behalf, the accused filed a motion to dismiss

for insufficiency of evidence to which the prosecutor filed an answer. On

January 21, 1986, 2 a decision was rendered by the trial court finding Vino
guilty as an accessory to the crime of murder and imposing on him the
indeterminate penalty of imprisonment of 4 Years and 2 months of prision
correccional as minimum to 8 years of prision mayor as maximum. He was
also ordered to indemnify the heirs of the victim in the sum of P10,000.00
being a mere accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having been denied, he
interposed an appeal to the Court of Appeals. In due course, a Decision was
rendered affirming the judgment of the lower court. 3
Hence, the herein petition for review wherein the following grounds are
invoked:
1. THAT AN ACCUSED CAN NOT BE CONVICTED AS AN
ACCESSORY OF THE CRIME OF MURDER FOR HAVING AIDED IN
THE ESCAPE OF THE PRINCIPAL IF SAID ACCUSED IS BEING
CHARGED SOLELY IN THE INFORMATION AS PRINCIPAL FOR THE
SIMPLE REASON THAT THE CRIME PROVED IS NOT INCLUDED IN
THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE
CONSIDERED SUFFICIENT IN LAW TO CONVICT AN ACCUSED
UNDER ARTICLE 19, PARAGRAPH 3 OF THE REVISED PENAL CODE
MUST BE DONE IN SUCH A WAY AS TO DECEIVE THE VIGILANCE
OF THE LAW ENFORCEMENT AGENCIES OF THE STATE AND THAT
THE "ESCAPE" MUST BE ACTUAL;
3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF
THE PRINCIPAL VIOLATES PROCEDURAL ORDERLINESS. 4
During the pendency of the appeal in the Court of Appeals, the case against
Salazar in the JAGO was remanded to the civil court as he was discharged
from the military service. He was later charged with murder in the same
Regional Trial Court of Rosales, Pangasinan in Criminal Case No. 2027-A. In a
supplemental pleading dated November 14, 1988, petitioner informed this
Court that Jessie Salazar was acquitted by the trial court in a decision that
was rendered on August 29, 1988.

The respondents were required to comment on the petition. The comment

was submitted by the Solicitor General in behalf of respondents. On January
18, 1989, the Court resolved to deny the petition for failure of petitioner to
sufficiently show that respondent court had committed any reversible error in
its questioned judgment. Hence, the present motion for reconsideration to
which the respondents were again required to comment. The required
comment having been submitted, the motion is now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in
the information as a principal for the crime of murder, can he thereafter be
convicted as an accessory? The answer is in the affirmative.
Petitioner was charged as a principal in the commission of the crime of
murder. Under Article 16 of the Revised Penal Code, the two other categories
of the persons responsible for the commission of the same offense are the
accomplice and the accessory. There is no doubt that the crime of murder
had been committed and that the evidence tended to show that Jessie
Salazar was the assailant. That the petitioner was present during its
commission or must have known its commission is the only logical conclusion
considering that immediately thereafter, he was seen driving a bicycle with
Salazar holding an armalite, and they were together when they left shortly
thereafter. At least two witnesses, Ernesto and Julius Tejada, attested to
these facts. It is thus clear that petitioner actively assisted Salazar in his
escape. Petitioner's liability is that of an accessory.
This is not a case of a variance between the offense charged and the offense
proved or established by the evidence, and the offense as charged is
included in or necessarily includes the offense proved, in which case the
defendant shall be convicted of the offense proved included in that which is
charged, or of the offense charged included in that which is proved. 5
In the same light, this is not an instance where after trial has begun, it
appears that there was a mistake in charging the proper offense, and the
defendant cannot be convicted of the offense charged, or of any other
offense necessarily included therein, in which case the defendant must not
be discharged if there appears to be a good cause to detain him in custody,
so that he can be charged and made to answer for the proper offense. 6
In this case, the correct offense of murder was charged in the information.
The commission of the said crime was established by the evidence. There is
no variance as to the offense committed. The variance is in the participation

or complicity of the petitioner. While the petitioner was being held

responsible as a principal in the information, the evidence adduced,
however, showed that his participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser. An accused can be
validly convicted as an accomplice or accessory under an information
charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an
accessory right then and there. The degree of responsibility of petitioner was
apparent from the evidence. At any rate, this lapse did not violate the
substantial rights of petitioner.
The next issue that must be resolved is whether or not the trial of an
accessory can proceed without awaiting the result of the separate charge
against the principal. The answer is also in the affirmative. The
corresponding responsibilities of the principal, accomplice and accessory are
distinct from each other. As long as the commission of the offense can be
duly established in evidence the determination of the liability of the
accomplice or accessory can proceed independently of that of the principal.
The third question is this-considering that the alleged principal in this case
was acquitted can the conviction of the petitioner as an accessory be
maintained?
In United States vs. Villaluz and Palermo, 7 a case involving the crime of
theft, this Court ruled that notwithstanding the acquittal of the principal due
to the exempting circumstance of minority or insanity (Article 12, Revised
Penal Code), the accessory may nevertheless be convicted if the crime was
in fact established.
Corollary to this is United States vs. Mendoza, 8 where this Court held in an
arson case that the acquittal of the principal must likewise result in the
acquittal of the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there was no basis
for the conviction of the accessory.
In the present case, the commission of the crime of murder and the
responsibility of the petitioner as an accessory was established. By the same
token there is no doubt that the commission of the same offense had been
proven in the separate case against Salazar who was charged as principal.
However, he was acquitted on the ground of reasonable doubt by the same

judge who convicted Vino as an accessory. The trial court held that the
identity of the assailant was not clearly established. It observed that only
Julius Tejada identified Salazar carrying a rifle while riding on the bicycle
driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian who were listed in the
information, who can corroborate the testimony of Julius Tejada, were not
presented by the prosecution.
The trial court also did not give due credit to the dying declaration of the
victim pinpointing Salazar as his assailant on the ground that it was not
shown the victim revealed the identity of Salazar to his father and brother
who came to his aid immediately after the shooting. The court a quo also
deplored the failure of the prosecution and law enforcement agencies to
subject to ballistic examinations the bullet slug recovered from the body of
the victim and the two empty armalite bullet empty shells recovered at the
crime scene and to compare it with samples taken from the service rifle of
Salazar. Thus, the trial court made the following observation:
There appears to be a miscarriage of justice in this case due to
the ineptitude of the law enforcement agencies to gather
material and important evidence and the seeming lack of
concern of the public prosecutor to direct the production of such
evidence for the successful prosecution of the case. 9
Hence, in said case, the acquittal of the accused Salazar is predicated on the
failure of the prosecution to adduce the quantum of evidence required to
generate a conviction as he was not positively identified as the person who
was seen holding a rifle escaping aboard the bicycle of Vino.
A similar situation may be cited. The accessory was seen driving a bicycle
with an unidentified person as passenger holding a carbine fleeing from the
scene of the crime immediately after the commission of the crime of murder.
The commission of the crime and the participation of the principal or
assailant, although not identified, was established. In such case, the Court
holds that the accessory can be prosecuted and held liable independently of
the assailant.
We may visualize another situation as when the principal died or escaped
before he could be tried and sentenced. Should the accessory be acquitted
thereby even if the commission of the offense and the responsibility of the

accused as an accessory was duly proven? The answer is no, he should be

held criminally liable as an accessory.
Although in this case involving Vino the evidence tended to show that the
assailant was Salazar, as two witnesses saw him with a rifle aboard the
bicycle driven by Vino, in the separate trial of the case of Salazar, as above
discussed, he was acquitted as the trial court was not persuaded that he was
positively identified to be the man with the gun riding on the bicycle driven
by Vino. In the trial of the case against Vino, wherein he did not even adduce
evidence in his defense, his liability as such an accessory was established
beyond reasonable doubt in that he assisted in the escape of the assailant
from the scene of the crime. The identity of the assailant is of no material
significance for the purpose of the prosecution of the accessory. Even if the
assailant can not be identified the responsibility of Vino as an accessory is
indubitable.
WHEREFORE, the motion for reconsideration is denied and this denial is
FINAL.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN

ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can
be held liable as a principal, not simply as an accessory, where it is proven
that the said victim was actually alive but subsequently died as a direct
result of such concealment and burial. Nonetheless, in the present case,
Appellant Garcia can not be held liable as a principal because the
prosecution failed to allege such death through drowning in the

Information. Neither may said appellant be held liable as an accessory due to

his relationship with the principal killer, Appellant Ortega, who is his brotherin-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants
Benjamin Ortega, Jr. and Manuel Garcia from the Decision, [1] dated February
9, 1994 written by Judge Adriano R. Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an
Information[3] dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, without any justifiable cause, with treachery and evident
premeditation and with abuse of superior strenght (sic) and with
deliberate intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and stab repeatedly with a pointed weapon
on the different parts of the body one ANDRE MAR MASANGKAY y
ABLOLA, thereby inflicting upon the latter serious physical injuries
which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by
counsel de oficio,[4] pleaded not guilty to the charge.[5] Accused John Doe was
then at large.[6] After trial in due course, the court a quo promulgated the
questioned Decision. The dispositive portion reads:[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel
Garcia y Rivera [g]uilty beyond reasonable doubt of the crime
charged, the Court hereby sentenced (sic) them to suffer the penalty
of RECLUSION PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum
of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay
and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty.
Evaristo P. Velicaria[8] who took over from the Public Attorneys Office as
counsel for the accused.

The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses
as follows:[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at
about 5:30 in the afternoon, he, the victim Andre Mar Masangkay,
Ariel Caranto, Romeo Ortega, Roberto San Andres were having a
drinking spree in the compound near the house of Benjamin Ortega, Jr.
at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they
were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who
were [already] drunk arrived and joined them. That victim Andre Mar
Masangkay answered the call of nature and went to the back portion
of the house. That accused Benjamin Ortega, Jr. followed him and later
they [referring to the participants in the drinking session] heard the
victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo
ako!) That he and Ariel Caranto ran towards the back portion of the
house and [they] saw accused Benjamin Ortega, Jr., on top of Andre
Mar Masangkay who was lying down in a canal with his face up and
stabbing the latter with a long bladed weapon. That Ariel Caranto ran
and fetched Benjamin Ortega, Sr., the father of accused Benjamin,
Jr. That he [Quitlong] went to Romeo Ortega in the place where they
were having the drinking session [for the latter] to pacify his brother
Benjamin, Jr. That Romeo Ortega went to the place of the stabbing
and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre
Mar Masangkay from the canal and brought Andre Mar to the well and
dropped the latter inside the well. That Romeo Ortega, Benjamin
Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12
inches high, 2 feet in length and 11 to 12 inches in weight to the body
of Andre Mar Masangkay inside the well. That Romeo Ortega warned
him [Quitlong] not to tell anybody of what he saw. That he answered
in the affirmative and he was allowed to go home. That his house is
about 200 meters from Romeo Ortegas house. That upon reaching
home, his conscience bothered him and he told his mother what he
witnessed. That he went to the residence of Col. Leonardo Orig and
reported the matter. That Col. Orig accompanied him to the
Valenzuela Police Station and some police officers went with them to

the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia
were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before
he was presented as witness in this case. That he narrated the
incident to his mother on the night he witnessed the killing on October
15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he
arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one
Boyet were already having [a] drinking spree and he joined
them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not
yet in the place. That the stabbing happened between 12:00 midnight
and 12:30 a.m. That they drank gin with finger foods such as pork and
shell fish. That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined
them at about 11:00 p.m. That there was no altercation between
Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar
Masangkay, during the drinking session. That at about 12:30 a.m.
Andre Mar Masangkay answered the call of nature and went to the
back portion of the house. That he cannot see Andre Mar Masangkay
from the place they were having the drinking session. That he did not
see what happened to Andre Mar Masangkay. That he only heard
Masangkay asking for help. That accused Manuel Garcia was still in
the drinking session when he heard Masangkay was asking for
help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and
neighbors. That when he heard Andre Mar Masangkay was asking for
help, he and Ariel Caranto ran to the back portion of the house and
saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing
the latter. That Andre Mar Masangkay was lying down with his back in
the canal and Benjamin Ortega, Jr. on top stabbing the former. That he
did not see any injuries on Benjamin Ortega, Jr. That he called Romeo
Ortega to pacify his brother Benjamin, Jr. That he did not do anything
to separate Benjamin Ortega, Jr. and Masangkay. That he knows that
Andre Mar Masangkay was courting Raquel Ortega. That Raquel
Ortega asked permission from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m.That there was no trouble that occurred
during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that
Diosdado Quitlong is his neighbor for about 9 years. That on October
16, 1992 at 5:00 in the morning, he was summoned by Diosdado

Quitlong and reported to him the stabbing incident that occurred at

Daangbakal near the subdivision he is living. That he relayed the
information to the Valenzuela Police Station and a police team under
police officer Param accompanied them to the place. That he asked
the police officers to verify if there is a body of person inside the
well. That the well was covered with stones and he asked the police
officers to seek the help of theneighbors (sic) to remove the stones
inside the well. That after the stones were removed, the body of the
victim was found inside the well. That the lifeless body was pulled out
from the well. That the body has several stab wounds. That he came
to know the victim as Andre Mar Masangkay. That two men were
arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of
the well with several stab wounds. That Diosdado Quitlong told him
that he was drinking with the victim and the assailants at the time of
the incident. That Benjamin Ortega, Jr. stabbed the victim while the
latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified
that he conducted [an] autopsy on the cadaver of Andre Mar
Masangkay on October 16, 1992 at the Valenzuela Memorial Homes
located at Macarthur Highway. That he prepared the autopsy report
and the sketch of human head and body indicating the location of the
stab wounds. That the cause of death is multiple stab wounds,
contributory, [a]sphyxia by submersion in water. That there were 13
stab wounds, 8 of which were on the frontal part of the body, 2 at the
back and there were contused abrasions around the neck and on the
left arm. There was stab wound at the left side of the neck. That the
contused abrasion could be produced by cord or wire or rope. That
there is (an) incised wound on the left forearm.That the stab wounds
which were backward downward of the body involved the lungs. That
the victim was in front of the assailant. That the stab wound on the
upper left shoulder was caused when the assailant was in front of the
victim. That the assailant was in front of the victim when the stab
wound near the upper left armpit was inflicted as well as the stab
wound on the left chest wall. That the stab wound on the back left
side of the body and the stab wound on the back right portion of the
body may be produced when the assailant was at the back of the
victim. That the assailant was in front of the victim when the stab

wound[s] on the left elbow and left arm were inflicted. That the large
airway is filled with muddy particles indicating that the victim was
alive when the victim inhaled the muddy particles. The heart is filled
with multiple hemorrhage, loss of blood or decreased of blood. The
lungs is filled with water or muddy particles. The brain is pale due to
loss of blood.The stomach is one half filled with muddy particles which
could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the
body of the victim. That he cannot tell if the assailant or the victim
were standing. That it is possible that the stab wounds was (sic)
inflicted when both [referring to participants] were standing or the
victim was lying down and the assailant was on top. That he cannot
tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o
clock in the morning, went home, changed his clothes and went to work.
[10]
After office hours, he and Benjamin Ortega, Jr. passed by the canteen at
their place of work. After drinking beer, they left at eight o clock in the
evening and headed home. En route, they chanced on Diosdado Quitlong
alias Mac-mac and Andre Mar Masangkay, who invited them to join their own
drinking spree. Thereupon, Appellant Garcias wife came and asked him to go
home because their daughter was still sick. To alleviate his daughters illness,
he fetched his mother-in-law who performed a ritual called tawas. After the
ritual, he remained at home and attended to his sick daughter. He then fell
asleep but was awakened by police officers at six o clock in the morning of
the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of
Appellant Manuel Garcia.[12] According to him, between eleven and twelve o
clock in the evening, Masangkay left the drinking session. Thirty (30) minutes
after Masangkay left, he also left the drinking place to urinate. [13] He went

behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating.[14] After he was
through, Masangkay approached him and asked where his sister was. He
answered that he did not know. Without warning, Masangkay allegedly boxed
him in the mouth, an attack that induced bleeding and caused him to fall on
his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing
him. Masangkay then gripped his neck with his left arm and threatened to kill
him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid
being stabbed, grabbed Masangkays right hand which was holding the
knife. Quitlong was able to wrest the knife from Masangkay and, with it, he
stabbed Masangkay ten (10) times successively, in the left chest and in the
middle of the stomach. When the stabbing started, Ortega moved to the left
side of Masangkay to avoid being hit. [15] Quitlong chased Masangkay who ran
towards the direction of the well. Thereafter, Ortega went home and treated
his injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police
officers in front of his house. Taking him with them, the lawmen proceeded to
the well. From the railroad tracks where he was asked to sit, he saw the
police officers lift the body of a dead person from the well. He came to know
the identity of the dead person only after the body was taken to the police
headquarters.[16]
The Trial Courts Discussion
The trial court explained its basis for appellants conviction as follows:[17]
The Court is convinced that the concerted acts of accused Benjamin
Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying
and dumping the victim Andre Mar Masangkay who was still alive and
breathing inside the deep well filled with water, head first and threw
big stones/rocks inside the well to cover the victim is a clear indication
of the community of design to finish/kill victim Andre Mar
Masangkay. Wounded and unarmed victim Andre Mar Masangkay was
in no position to flee and/or defend himself against the three
malefactors. Conspiracy and the taking advantage of superior
strength were in attendance. The crime committed by the accused is
Murder.

Concert of action at the moment of consummating the crime and the

form and manner in which assistance is rendered to the person
inflicting the fatal wound may determine complicity where it would not
otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the
amount of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: [18]
I. The trial court erred in holding that there is conspiracy on the
basis of the prosecutions evidence that at the time both
accused and one Romeo Ortega lifted the body of Andrew
Masangkay from where he succumbed due to stab wounds
and brought and drop said body of Andrew Masangkay to the
well to commit murder;
II. The trial court erred in finding and holding that Andrew
Masangkay was still alive at the time his body was dropped in
the well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega
Jr. is guilty only of homicide alone.
On the basis of the records and the arguments raised by the appellants and
the People, we believe that the question to be resolved could be simplified
thus: What are the criminal liabilities, if any, of Appellants Ortega and
Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of
homicide. Appellant Garcia deserves acquittal.

First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of the crime
and positively identified appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and alibi. As to which
of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard,
the trial court held:[19]
The Court has listened intently to the narration of the accused and
their witnesses and the prosecution witnesses and has keenly
observed their behavior and demeanor on the witness stand and is
convinced that the story of the prosecution is the more believable
version. Prosecution eyewitness Diosdado Quitlong appeared and
sounded credible and his credibility is reinforced by the fact that he
has no reason to testify falsely against the accused. It was Diosdado
Quitlong who reported the stabbing incident to the police
authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses
demeanor and deportment on the stand as they rendered their testimonies,
its evaluation of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected.[20]
In the instant case, we have meticulously scoured the records and found
no reason to reverse the trial courts assessment of the credibility of the
witnesses and their testimonies[21]insofar as Appellant Ortega is
concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and
logical. Thus, it clearly deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on
the unbelievable. Appellant Ortega claimed that after he was able to free
himself from Masangkays grip, he went home, treated his injuries and slept.
[22]
This is not the ordinary reaction of a person assaulted. If Ortegas version
of the assault was true, he should have immediately reported the matter to
the police authorities, if only out of gratitude to Quitlong who came to his

rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. [23] The natural tendency of a person
under attack is to defend himself and not to persist in choking a defenseless
third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of
such superiority. It must be shown that the accused purposely used
excessive force that was manifestly out of proportion to the means available
to the victims defense.[24] In this light, it is necessary to evaluate not only the
physical condition and weapon of the protagonists but also the various
incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned nothing about
Appellant Ortegas availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a
drinking spree with Andrew Masangkay and where you witnessed
a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we
were drinking in the house of Mr. Benjamin Ortega, Sr., because
the house of Benjamin Ortega Sr. and the house of his son
Benjamin Ortega, Jr. are near each other.
xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin

Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y
Ducay, Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that
time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega,
Jr. arrived drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted
by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto,
Romeo Ortega, Roberto San Andres, myself and Andrew
Masangkay. Andrew Masangkay answer to a call of nature and
went to the back portion of the house, and Benjamin Ortega, Jr.
followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag,
tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a
call of nature and after you heard huwag, tulungan nyo ako
coming from the mouth of the late Andrew Masangkay, what
happened next?

A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew
Masangkay and he was stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the
stabbing was done telling us the particular position of the late
Andrew Masangkay and how Benjamin Ortega, Jr proceeded with
the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then
Benjamin Ortega, Jr. was nakakabayo and with his right hand with
closed fist holding the weapon, he was thrusting this weapon on
the body of the victim, he was making downward and upward
motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew
Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas
Appellant Ortega, Jr. was only five feet and five inches tall. [27] There was no
testimony as to how the attack was initiated. The accused and the victim
were already grappling when Quitlong arrived. Nothing in the foregoing
testimony and circumstances can be interpreted as abuse of superior
strength.Hence, Ortega is liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court is based
on mere assumption and conjecture x x x.[28] Allegedly, the medico-legal
finding that the large airway was filled with muddy particles indicating that

the victim was alive when the victim inhaled the muddy particles did not
necessarily mean that such muddy particles entered the body of the victim
while
he
was
still
alive. The Sinumpaang
Salaysay of
Quitlong
stated, Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin
Ortega, Jr. Thus, the prosecution evidence shows Masangkay was already
dead when he was lifted and dumped into the well. Hence, Garcia could be
held liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par. 1, of the
Revised Penal Code states that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be
different from that which he intended. The essential requisites for the
application of this provision are that (a) the intended act is felonious; (b) the
resulting act is likewise a felony; and (c) the unintended albeit graver wrong
was primarily caused by the actors wrongful acts. In assisting Appellant
Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was
committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being an accessory in the crime of
homicide.[30]Although Appellant Garcia may have been unaware that the
victim was still alive when he assisted Ortega in throwing the body into the
well, he is still liable for the direct and natural consequence of his felonious
act, even if the resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer showed
that the victim at that time was still alive, and that he died subsequently of
drowning.[31] That drowning was the immediate cause of death was medically
demonstrated by the muddy particles found in the victims airway, lungs and
stomach.[32] This is evident from the expert testimony given by the medicolegal officer, quoted below:[33]
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of
Exhibit N, beginning with tracheo-bronchial tree, that is sentence
immediately after paragraph 10, 2.5 cms. Will you please explain
this?
A The trancheo-bronchial tree is filled with muddy particles.

Q I ask you a question on this. Could the victim have possibly get this
particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be
inhaled.
Q So, in short, you are telling or saying to us that if there is no
inhaling or the taking or receiving of muddy particles at that time,
the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the
anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of
blood going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy
particles?
A Yes, sir.

Q And, precisely, you are now testifying that due to stab wounds or
asphyxia, the lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of
blood.
Q And, of course, loss of blood could be attributed to the stab wound
which is number 13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood
that accumulate at the thoraxic cavity and this was admixed with
granular materials?
Q And what cause the admixing with granular materials on said
particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by
asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the
stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles
now came in, in that particular portion of the body and caused
admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will
you please explain the same?

A The hemoperitoneum there are 900 cc of blood that accumulated

inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please
explain the same?
A The victim could have taken these when he was submerged in
water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of the following
medical findings may show that drowning is the cause of death:[34]
1. The presence of materials or foreign bodies in the hands of the
victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself
from drowning.
2. Increase in volume (emphysema aquosum) and edema of the
lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents
corresponding to the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage
found in the medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It
was proven that his airpassage, or specifically his tracheo-bronchial tree, was

filled with muddy particles which were residues at the bottom of the
well. Even his stomach was half-filled with such muddy particles. The
unrebutted testimony of the medico-legal officer that all these muddy
particles were ingested when the victim was still alive proved that the victim
died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the
felony that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill.[35]
In spite of the evidence showing that Appellant Garcia could be held
liable as principal in the crime of homicide, there are, however, two legal
obstacles barring his conviction, even as an accessory as prayed for by
appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The
prosecutions evidence itself shows that Garcia had nothing to do with the
stabbing which was solely perpetrated by Appellant Ortega. His responsibility
relates only to the attempted concealment of the crime and the resulting
drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is
that an accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. Constitutionally, he has a right to be
informed of the nature and cause of the accusation against him. To convict
him of an offense other than that charged in the complaint or information
would be a violation of this constitutional right. [36] Section 14, par. 2, of the
1987 Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has

been
duly
notified
and
his
unjustifiable. (Underscoring supplied)

failure

to

appear

is

In People vs. Pailano,[37] this Court ruled that there can be no conviction
for rape on a woman deprived of reason or otherwise unconscious where the
information charged the accused of sexual assault by using force or
intimidation, thus:
The criminal complaint in this case alleged the commission of the
crime through the first method although the prosecution sought to
establish at the trial that the complainant was a mental retardate.Its
purpose in doing so is not clear. But whatever it was, it has not
succeeded.
If the prosecution was seeking to convict the accused-appellant on the
ground that he violated Anita while she was deprived of reason or
unconscious, such conviction could not have been possible under the
criminal complaint as worded. This described the offense as having
been committed by Antonio Pailano, being then provided with a
scythe, by means of violence and intimidation, (who) did, then and
there, wilfully, unlawfully and feloniously have carnal knowledge of
the complainant, Anita Ibaez, 15 years of age, against her will. No
mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped
Anita while she was unconscious or otherwise deprived of reason -and not through force and intimidation, which was the method alleged
-- would have violated his right to be informed of the nature and cause
of the accusation against him.[Article IV, Sec. 19, Constitution of
1973; now Article III, Sec. 14(2)] This right is safeguarded by the
Constitution to every accused so he can prepare an adequate defense
against the charge against him. Convicting him of a ground not
alleged while he is concentrating his defense against the ground
alleged would plainly be unfair and underhanded. This right was, of
course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person
charged with rape could not be found guilty of qualified seduction,
which had not been alleged in the criminal complaint against him.In
the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not
permit the conviction for homicide of a person held responsible for the

suicide of the woman he was supposed to have raped, as the crime he

was accused of -- and acquitted -- was not homicide but rape. More to
the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where
the accused was charged with the misappropriation of funds held by
him in trust with the obligation to return the same under Article 315,
paragraph 1(b) of the Revised Penal Code, but was convicted of
swindling by means of false pretenses, under paragraph 2(b) of the
said Article, which was not alleged in the information. The Court said
such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide
through drowning in an information that charges murder by means of
stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in concealing x x x the body of the crime, x x x in order to prevent
its discovery, he can neither be convicted as an accessory after the fact
defined under Article 19, par. 2, of the Revised Penal Code. The records show
that Appellant Garcia is a brother-in-law of Appellant Ortega, [38] the latters
sister, Maritess, being his wife. [39] Such relationship exempts Appellant Garcia
from criminal liability as provided by Article 20 of the Revised Penal Code:
ART. 20. Accessories who are exempt from criminal liability. -- The
penalties prescribed for accessories shall not be imposed upon those
who are such with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees with the single exception of
accessories falling within the provisions of paragraph 1 of the next
preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of
the commission of the crime, and without having participated therein,
either as principals or accomplices, take part subsequent to its
commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by
the effects of the crime.

2. By concealing or destroying the body of the crime, or the

effects or instruments thereof, in order to prevent its
discovery.
3. By harboring, concealing, or assisting in the escape of
the principal of the crime, provided the accessory acts
with abuse of his public functions or whenever the author
of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known
to be habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code.This Court is thus mandated
by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00
from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. [40] Of
the expenses alleged to have been incurred, the Court can give credence
only to those that are supported by receipts and appear to have been
genuinely incurred in connection with the death of the victim. [41] However, in
line with current jurisprudence,[42] Appellant Ortega shall also indemnify the
heirs of the deceased in the sum ofP50,000.00. Indemnity requires no proof
other than the fact of death and appellants responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE,
premises
considered,
the
joint
appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is
also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
and P31,790.00
as
actual
damages. Appellant
Manuel
Garcia

is ACQUITTED. His immediate release from confinement is ORDERED unless

he is detained for some other valid cause.
SO ORDERED.
THE

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
CELERINO CASTROMERO, accused-appellant.

vs.

DECISION
PANGANIBAN, J.:
Rape is consummated by the slightest touching of the lips of the female
organ or of the labia of the pudendum. Complete penetration is not
required. The rapist is likewise liable for the injury suffered by the rape victim
as a result of her attempt to escape the assault.
The Case
This is an appeal from the August 17, 1994 Decision [1] of the Regional
Trial Court, Fourth Judicial Region, Branch 10[2] stationed in Balayan,
Batangas in Criminal Case No. 3509 finding appellant guilty of rape with
serious physical injuries.
The Complaint[3] against Appellant Celerino Castromero reads:
The undersigned offended party under oath accuses Celerino Castromero of
the Complex Crime of Rape with Serious Physical Injuries, defined and
penalized under Article 335, in relation to Article 48 and 263 of the Revised
Penal Code, committed as follows:
That on or about the 6th day of February, 1993, at about 2:00 oclock in the
morning, at Barangay Tanggoy, Municipality of Balayan, Province of
Batangas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a knife (balisong) and by means of force
and intimidation did then and there wilfully, unlawfully and feloniously have
carnal knowledge with the offended party Josephine Baon against her will
and consent and as a consequence thereof, the said offended party suffered
serious physical injuries which injuries required medical attendance and
incapacitated her from performing her customary work for a period of more
than ninety (90) days by jumping down through the window of her house.

Contrary to law.
The Complaint[4] was treated as the Information with the approval of
Provincial Prosecutor Carmelo Q. Quizon, after Fourth Asst. Provincial
Prosecutor Rolando E. Silang added his sworn certification that a preliminary
investigation was conducted in accordance with law. When arraigned on July
20, 1993, the accused-appellant, assisted by Counsel de OficioHermogenes
De Castro, pleaded not guilty.[5]
After a pre-trial conference, trial ensued in due course. Subsequently, the
trial court rendered the assailed Judgment, the dispositive portion of which
reads:
WHEREFORE, the Court finds the accused Celerino Castromero GUILTY
beyond reasonable doubt of the crime of Rape With Serious Physical Injuries
and hereby sentences him to reclusion perpetua, to indemnify the victim
Josephine Baon in the sum of P40,000.00, to pay Josephine Baon the sum
of P20,378.95 representing actual damages and to pay the costs.
Considering that the accused is a detention prisoner, he shall be credited
with the period of his detention during his preventive imprisonment.
SO ORDERED.[6]
The Facts
Version of the Prosecution
The prosecution presented three witnesses, namely: (1) Josephine Baon,
the victim; (2) her husband, Esmeraldo Baon, who testified on the medical
expenses for the injuries his wife suffered because of the crime; and
(3) Felipa Baon. The facts gleaned by the trial court from their testimonies
are as follows:
Felipa Baon is the mother-in-law of the alleged victim and was presented to
prove circumstances of the incident which form part of the res gestae. She
testified that the accused is her nephew because the accuseds father is her
first cousin. On February 6, 1993 at around 2:00 oclock in the morning while
asleep in their house in Barangay Tangoy, Balayan, Batangas, she was
awakened by a scream of her daughter-in-law whose house is situated just
five (5) armslength away from theirs. When she came out to help her

daughter-in-law (Josephine Baon), the latter was lying in front of the window
so, she and her husband carried Josephine into their house. Thereat,
Josephine related what happened to her. According to Josephine, the accused
forcibly entered her room, placed himself on top of her and made his penis
touch her vagina for several times. The accused was then holding a
knife. When Josephine was able to free herself from the accused, she jumped
out of the window where she fell into the ground. Thereafter, the assistance
of Barangay Captain Codizal was sought who reported the incident to the
police. Felipa Baon executed a sworn statement when investigated by one
SPO2 William C. Dimaala in the Philippine Orthopedic Hospital where
Josephine was confined for treatment.
The next witness was the private complainant who gave her testimony while
lying on a bamboo bed. She averred that she knows the accused because the
latter is the nephew of her mother-in-law. On February 6, 1993, at around
2:00 oclock in the morning while asleep, she was awakened by the slam of
the kitchen door. She rose and went out of the bedroom to check what
happened and outside the room she met the accused. The accused pointed a
knife at her and warned her not to shout or else she would be killed. She got
scared.
The accused, while holding a knife on the right hand, embraced her behind
the neck, kissed her cheek, and touched her breasts. Then he pulled her
panty until the garter got loose and touched her private parts.Next, accused
pulled down his jogging pants and brief. She kept herself still because of the
accuseds threat to kill her. Accused then removed her skirt, placed himself
on top of her, and tried to insert his penis into her vagina. Because of the
accused movement sideways and her struggle, his penis touched her private
parts.
When she noticed that the accused was no longer holding the knife, she
pushed him away. As she rose up, the accused grabbed her hands and was
about to stab her. So, she immediately jumped out of the window. When she
fell down, she yelled for help from her in-laws who responded and carried her
to their house because she could not move her feet. She requested her
mother-in-law to bring her to the emergency hospital because of the intense
pain she was then suffering. Her in-laws reported the incident to the
barangay captain who looked for the accused and to whom the accused
surrendered.

From the emergency hospital, she was later transferred to the Philippine
Orthopedic Hospital. Upon examination, it was found out that her spinal
column was broken which required her to undergo surgical operation. (Exhs.
E, E-1 to E-5).
On cross-examination, private complainant averred that it is her habit to
sleep at night with lights on in and out of her room especially when her
husband is not around. In the night of February 5, 1993 she slept with the
lights on together with her children, namely: Joanna Marie and Romualdo. It
was at around 2:00 oclock the following morning when she was awakened by
a slam of the door, reason for her to rise-up to check what happened and she
met the accused just outside her room as she went out. The accused then
pulled her and pointed a knife on the left side of her neck and touched her
private parts while they were both standing with the accused in front of her.
When she was already lying down (upon the orders of the accused) the
accused went on top of her embracing her with his right arm which also held
a knife and touched her private parts. The accused tried to insert with his left
hand his penis into her vagina.
As the knife was pointed at her, the accused warned her not to shout or she
would be killed. It was the accuseds left hand that touched her breast
because his right hand held the knife. The accused used both hands in
removing her panty with the knife still on his hand. The accused removed his
jogging pants and brief and the knife was still pointed in her neck. When the
accused tried to insert his penis, it touched her vagina as she put up
resistance and as both of them moved sideways.
The next witness was Esmeraldo Baon, the husband of the offended party
whose gist of the testimony relates to the civil aspect of the crime
charged. He testified on the hospital and surgical expenses and cost of
medicines incurred on account of the injury suffered by the offended party
caused by her jumping out of the window. The witness also identified the
receipts and other relevant documents in support of the expenses
incurred. Although he claimed having incurred expenses in the amount
of P242,198.00,
the
witness
was
able
to
present
receipts
[7]
covering P20,378.95 only (Exhs. D-1 to D-25).
Version of the Defense

Raising denial and alibi, the defense presented two witnesses in the
person of Appellant Celerino Castromero and his wife Juliana. The appellant,
through the Public Attorneys Office, narrated the following version of the
facts:[8]
Juliana Castromero testified that she is the wife of the accused. She said that
at around 6 oclock in the evening of February 5, 1993 she was with her
husband (accused) and their three (3) children at their house in Tanggoy,
Balayan, Batangas. They took their dinner. At about 7 oclock of the same
night her husband went out. Her husband returned before midnight and slept
right away. She was awake till 1 oclock because one of their children had a
stomach ache. When she woke up at 5 oclock in the morning, her husband
was still sleeping. Her husband woke up at 6:00 A.M. After taking his
breakfast, her husband went to his work in Dalig, Balayan, Batangas. Her
husband is a threshing machine operator. While her husband was on his job,
some policemen came to their house and were looking for him. Her husband
was being suspected of entering others (sic) dwelling. (TSN, pp. 2-8, April 7,
1994 and pp. 2-9, April 28, 1994)
Celerino Castromero testified that at around 6 oclock in the evening of
February 5, 1993 he took his supper together with his wife and children. At
about 7 P.M. he left and played (or gambled) in a nearby house. At 11:30
P.M., he went home. After his arrival at their house, he went to sleep right
away. He woke up at 5 oclock of the following morning. He reported for work
in Dalig, Balayan, Batangas being a threshing machine operator. When he
went home at 12 oclock noon, their barangay captain arrived and informed
him that he was being suspected of having committed a crime. The police
invited him to the police station. And at the police station, the police did not
conduct any investigation. He was merely placed or locked up in the jail. He
went to the police station, together with their barangay captain, to explain
his side and not to surrender. He denied vehemently to have committed any
crime. (TSN, pp. 2-18, May 19, 1994).
Error Assigned
The defense raises one error: the court a quo erred in not acquitting the
accused-appellant of the crime charged. [9] Appellant denies the accusation
against him and insists that he was inside his own house at the time of the
alleged rape.
The Courts Ruling

The appeal is not meritorious.

Credibility of Witnesses
In his brief, the appellant simply denies the charge of rape with serious
physical injuries and insists on his alibi. [10] He also alludes to the following as
indications of his innocence: he voluntarily went to the police station with the
barangay captain;[11] he pleaded not guilty to the charge; [12] and he
vehemently denied committing the crime.[13] Finally, he adds, if a reasonable
doubt exists, the verdict must be one of acquittal.[14]
In deciding this appeal, we are guided by the following principles
formulated specifically for the review of rape cases: (1) an accusation of
rape, while easy to make, is difficult to prove and even harder for the person
accused, though innocent, to disprove; (2) because rape, by its very nature,
involves only two persons, the testimony of the complainant should be
scrutinized with the greatest caution; (3) the evidence for the prosecution
must stand or fall on its own merits and must not be allowed to draw
strength from the weakness of the evidence for the defense. [15] On the other
hand, the complainants credibility assumes paramount importance because
her testimony, if credible, is sufficient to support the conviction of the
accused.[16]
After a thorough review of the records in the case at bar, we see no
reason to reverse the trial courts factual finding and conclusion on the
credibility of Josephine Baons testimony;[17]we are likewise unpersuaded by
accused-appellants asseverations. Well-settled is the rule that the
assessment of the credibility of witnesses and their testimonies is a matter
best undertaken by the trial court, because of its unique opportunity to
observe the witnesses firsthand and to note their demeanor, conduct and
attitude under grilling examination. Findings of the trial court on such
matters are binding and conclusive on the appellate court, unless some facts
or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted.[18]
Josephine Baons testimony on how her honor was defiled by appellant
that early dawn was clear, direct and honest. [19] Josephine never wavered in
her account of the rape in spite of the long browbeating she received during
her cross-examination.[20] Her identification of Appellant Castromero as her
violator cannot be disputed because she personally knew appellant who,
aside from being a neighbor, was also a relative of her mother-in-

law. Moreover, she had the opportunity to identify her assailant, since the
crime scene was illuminated by the lights inside and outside her room which
she usually left on, specially in the absence of her husband as was the case
that night.[21] Besides, it is inconceivable that complainant, a decent 26-year
old married Filipina with two young children, would suffer the embarrassment
of having to reveal intimate details of her violation and to undergo all the
difficulties and indignities of a rape prosecution, if her sole motivation was
not to have the real culprit arrested and punished for the outrage committed
against her. Indeed, a rape victim will not come out in the open if her motive
[is] not to obtain justice.[22] In any event, it was not shown that complainant
had any ill motive to falsely testify against Accused Castromero. The accused
himself and his wife Juliana both admitted during trial that they had no
knowledge of any bad blood between them and Josephine Baon or her family.
[23]

Hence, Josephines testimony, which we find credible and worthy of belief,

is sufficient to convict the accused-appellant of the crime charged. The
reliability and credibility of her testimony are bolstered by her narration of
the sordid incident immediately thereafter to her mother-in-law, Felipa
Baon. Based on the foregoing, we are convinced that appellant sexually
assaulted Complainant Josephine Baon.
Appellant Castromeros defense of denial and alibi is inherently weak and
certainly insufficient to outweigh Josephines positive and categorical
assertion of her violation by the former. [24]Furthermore, (f)or alibi to serve as
basis for acquittal, it must be established with clear and convincing
evidence. The requisites of time and place must be strictly met. Appellant
must convincingly demonstrate that it was physically impossible for him to
have been at the scene of the crime at the time of its commission.
[25]
Appellants evidence falls far short of this requirement because his house,
where he was allegedly sleeping at the time the crime was committed, was a
mere fifty meters from the crime scene.[26] Hence, it was not at all physically
impossible or even difficult for appellant to have been at complainants home
at the time of the crime. It seems to this Court that the defense of denial and
alibi was routinely raised faute de mieux.
Was Rape Committed?
In determining whether the rape was consummated or merely attempted,
we observe that in this case there was no complete or perfect penetration of

the complainants sex organ. The salient portions of her testimony are as
follows:
Q While he was on top of you, what was he doing?
A He tried to insert his penis to my vagina.
Q When he was trying to insert his private part to your private part,
what happened?
A His penis touched my vagina.
FISCAL CASTILLO:
May I request Your Honor, that the Tagalog word Ang kanyang pagaari ay lumapat sa aking pag-aari).
Q What happened next?
A Because of the movement sideways his penis touched my private
parts.[27] (Underscoring supplied.)
On cross-examination, Eden stated further:
Q Mrs. witness, you testified that while the accused was on top of
you, he tried to insert his penis, did the accused insert his penis
on your private part?
A Yes sir, the opening of my vagina was touched.[28] (Underscoring
supplied.)
Felipa Baon, on the other hand, declared:
Q When Josefina Baon asked your help and the first time you see (sic)
her at that morning, what was her physical condition?
A She was lying in front of the window.
Q And what did she tell you if she told you anything?
A Josephine Baon told me that the accused forcibly enter her room
and placed himself on top of her and the penis of the accused was

made to touch the vagina for several times. Idinuldol ng idinuldol

ang
kanyang
pag-aari
sa
harap
ni
Josephine
Baon.
[29]
(Underscoring supplied.)
To consummate rape, perfect or complete penetration of the
complainants private organ is not essential. Even the slightest penetration by
the male organ of the lips of the female organ, or labia of the pudendum, is
sufficient.[30] In People vs. Dela Pena,[31] this Court held that the mere
touching of the external genitalia by a penis capable of consummating the
sexual act constitutes carnal knowledge. Josephines testimony that
appellants organ touched the opening of her vagina can lead to no other
conclusion than that the appellants manhood legally invaded, however
slightly, the lips of her private organ. Clearly, rape was consummated in this
case. Because the sexual assault was perpetrated by force and intimidation,
Appellant Castromero is thus guilty of rape pursuant to Article 335 of the
Revised Penal Code.
In relation to the charge that rape was complexed with the crime of
serious physical injuries, we stress the settled principle that a person who
creates in anothers mind an immediate sense of danger that causes the
latter to try to escape is responsible for whatever the other person may
consequently suffer.[32] In this case, Josephine jumped from a window of her
house to escape from Appellant Castromero; as a result, she suffered serious
physical injuries, specifically a broken vertebra which required medical
attention and surgery for more than ninety days. This being the case, the
court a quo correctly convicted Appellant Castromero of the complex crime
of rape with serious physical injuries.
WHEREFORE, the assailed Decision of the trial court is
hereby AFFIRMED. However, the indemnity in favor of Josephine Baon is
hereby INCREASED to fifty thousand pesos (P50,000.00) in line with current
jurisprudence.[33]
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE,
GEORGE COMADRE and DANILO LOZANO, appellants.
DECISION
PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were

charged with Murder with Multiple Frustrated Murder in an information which
reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and by means of treachery and evident
premeditation, availing of nighttime to afford impunity, and with the use of
an explosive, did there and then willfully, unlawfully and feloniously lob a
hand grenade that landed and eventually exploded at the roof of the house
of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT
AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy
Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to
suffer shrapnel wounds on their bodies, per the medical certificates; thus, to
the latter victims, the accused commenced all the acts of execution that
would have produced the crime of Multiple Murder as consequences thereof
but nevertheless did not produce them by reason of the timely and able
medical and surgical interventions of physicians, to the damage and
prejudice of the deceaseds heirs and the other victims.
CONTRARY TO LAW.[1]
On arraignment, appellants pleaded not guilty.[2] Trial on the merits then
ensued.
As culled from the records, at around 7:00 in the evening of August 6,
1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, [3] Rey Camat and
Lorenzo Eugenio were having a drinking spree on the terrace of the house of
Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay
San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of
the terrace listening to the conversation of the companions of his son. [4]
As the drinking session went on, Robert and the others noticed appellants
Antonio Comadre, George Comadre and Danilo Lozano walking. The three
stopped in front of the house.While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school.[5]
The object, which turned out to be a hand grenade, exploded ripping a
hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry

Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and
slumped unconscious on the floor.[6] They were all rushed to the San Jose
General Hospital in Lupao, Nueva Ecija for medical treatment. However,
Robert Agbanlog died before reaching the hospital.[7]
Dr. Tirso de los Santos, the medico-legal officer who conducted the
autopsy on the cadaver of Robert Agbanlog, certified that the wounds
sustained by the victim were consistent with the injuries inflicted by a
grenade explosion and that the direct cause of death was hypovolemic shock
due to hand grenade explosion. [8] The surviving victims, Jimmy Wabe, Rey
Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.[9]
SPO3 John Barraceros of the Lupao Municipal Police Station, who
investigated the scene of the crime, recovered metallic fragments at the
terrace of the Agbanlog house. These fragments were forwarded to the
Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where
SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as
shrapnel of an MK2 hand grenade.[10]
Denying the charges against him, appellant Antonio Comadre claimed
that on the night of August 6, 1995, he was with his wife and children
watching television in the house of his father, Patricio, and his brother,
Rogelio. He denied any participation in the incident and claimed that he was
surprised when three policemen from the Lupao Municipal Police Station
went to his house the following morning of August 7, 1995 and asked him to
go with them to the police station, where he has been detained since.[11]
Appellant George Comadre, for his part, testified that he is the brother of
Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any
involvement in the grenade-throwing incident, claiming that he was at home
when it happened. He stated that he is a friend of Rey Camat and Jimmy
Wabe, and that he had no animosity towards them whatsoever. Appellant
also claimed to be in good terms with the Agbanlogs so he has no reason to
cause them any grief.[12]
Appellant Danilo Lozano similarly denied any complicity in the crime. He
declared that he was at home with his ten year-old son on the night of
August 6, 1995. He added that he did not see Antonio and George Comadre
that night and has not seen them for quite sometime, either before or after
the incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.[13]

Antonios father, Patricio, and his wife, Lolita, corroborated his claim that
he was at home watching television with them during the night in question.
[14]
Josie Comadre, Georges wife, testified that her husband could not have
been among those who threw a hand grenade at the house of the Agbanlogs
because on the evening of August 6, 1995, they were resting inside their
house after working all day in the farm.[15]
After trial, the court a quo gave credence to the prosecutions evidence
and convicted appellants of the complex crime of Murder with Multiple
Attempted Murder,[16] the dispositive portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano
GUILTY beyond reasonable doubt of the complex crime of Murder with
Multiple Attempted Murder and sentencing them to suffer the
imposable penalty of death;
2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay
jointly and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages
and P20,000.00 as moral damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo
Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry
Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their
attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal
Code, as amended. Appellants contend that the trial court erred: (1) when it
did not correctly and judiciously interpret and appreciate the evidence and
thus, the miscarriage of justice was obviously omnipresent; (2) when it
imposed on the accused-appellants the supreme penalty of death despite the
evident lack of the quantum of evidence to convict them of the crime
charged beyond reasonable doubt; and (3) when it did not apply the law and
jurisprudence for the acquittal of the accused-appellants of the crime
charged.[17]

Appellants point to the inconsistencies in the sworn statements of Jimmy

Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the
perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a
suspect. Gerry Bullanday declared that he suspected Antonio Comadre as
one of the culprits because he saw the latters ten year-old son bring
something in the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station
to give a more detailed account of the incident, this time identifying Antonio
Comadre as the perpetrator together with George Comadre and Danilo
Lozano.
A closer scrutiny of the records shows that no contradiction actually
exists, as all sworn statements pointed to the same perpetrators, namely,
Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears
that the first statement was executed a day after the incident, when Jimmy
Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the
injuries they sustained. Coherence could not thus be expected in view of
their condition. It is therefore not surprising for the witnesses to come up
with a more exhaustive account of the incident after they have regained
their equanimity. The lapse of twenty days between the two statements is
immaterial because said period even helped them recall some facts which
they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the
harrowing event which unfolded before their eyes. Minor discrepancies might
be found in their testimony, but they do not damage the essential integrity of
the evidence in its material whole, nor should they reflect adversely on the
witness credibility as they erase suspicion that the same was perjured.
[18]
Honest inconsistencies on minor and trivial matters serve to strengthen
rather than destroy the credibility of a witness to a crime, especially so
when, as in the instant case, the crime is shocking to the conscience and
numbing to the senses.[19]
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely
against appellants. Absent evidence showing any reason or motive for
prosecution witnesses to perjure, the logical conclusion is that no such

improper motive exists, and their testimony is thus worthy of full faith and
credit.
The trial court is likewise correct in disregarding appellants defense of
alibi and denial. For the defense of alibi to prosper, the accused must prove
not only that he was at some other place at the time of the commission of
the crime but also that it was physically impossible for him to be at the locus
delicti or within its immediate vicinity.[20]
Apart from testifying with respect to the distance of their houses from
that of Jaime Agbanlogs residence, appellants were unable to give any
explanation and neither were they able to show that it was physically
impossible for them to be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses Jimmy Wabe, Jaime
Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi
and denial.[21]
It was established that prior to the grenade explosion, Rey Camat, Jaime
Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the
culprits, namely, appellants Antonio Comadre, George Comadre and Danilo
Lozano because there was a lamppost in front of the house and the moon
was bright.[22]
Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of
the Regional Trial Court of San Jose City, Branch 38 erred in rendering the
decision because he was not the judge who heard and tried the case is not
well taken.
It is not unusual for a judge who did not try a case to decide it on the
basis of the record for the trial judge might have died, resigned, retired,
transferred, and so forth.[23] As far back as the case of Co Tao v. Court of
Appeals[24] we have held: The fact that the judge who heard the evidence is
not the one who rendered the judgment and that for that reason the latter
did not have the opportunity to observe the demeanor of the witnesses
during the trial but merely relied on the records of the case does not render
the judgment erroneous. This rule had been followed for quite a long time,
and there is no reason to go against the principle now.[25]
However, the trial courts finding of conspiracy will have to be
reassessed. The undisputed facts show that when Antonio Comadre was in
the act of throwing the hand grenade, George Comadre and Danilo Lozano

merely looked on without uttering a single word of encouragement or

performed any act to assist him. The trial court held that the mere presence
of George Comadre and Danilo Lozano provided encouragement and a sense
of security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule that
to establish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.[26]
A conspiracy must be established by positive and conclusive evidence. It
must be shown to exist as clearly and convincingly as the commission of the
crime itself. Mere presence of a person at the scene of the crime does not
make him a conspirator for conspiracy transcends companionship.[27]
The evidence shows that George Comadre and Danilo Lozano did not
have any participation in the commission of the crime and must therefore be
set free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an
act of giving moral assistance to his criminal act. The ratiocination of the trial
court that their presence provided encouragement and sense of security to
Antonio, is devoid of any factual basis. Such finding is not supported by the
evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.
Time and again we have been guided by the principle that it would be
better to set free ten men who might be probably guilty of the crime charged
than to convict one innocent man for a crime he did not commit. [28] There
being no conspiracy, only Antonio Comadre must answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly
ruled that treachery attended the commission of the crime. For treachery to
be appreciated two conditions must concur: (1) the means, method and form
of execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) such means, methods and form of execution was
deliberately and consciously adopted by the accused. Its essence lies in the

adoption of ways to minimize or neutralize any resistance, which may be put

up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where
the unsuspecting victims were having a drinking spree. The suddenness of
the attack coupled with the instantaneous combustion and the tremendous
impact of the explosion did not afford the victims sufficient time to scamper
for safety, much less defend themselves; thus insuring the execution of the
crime without risk of reprisal or resistance on their part. Treachery therefore
attended the commission of the crime.
It is significant to note that aside from treachery, the information also
alleges the use of an explosive[29] as an aggravating circumstance. Since
both attendant circumstances can qualify the killing to murder under Article
248 of the Revised Penal Code,[30] we should determine which of the two
circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of
explosives, the latter shall be considered as a qualifying circumstance. Not
only does jurisprudence[31] support this view but also, since the use of
explosives is the principal mode of attack, reason dictates that this attendant
circumstance should qualify the offense instead of treachery which will then
be relegated merely as a generic aggravating circumstance. [32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No.
8294[33] which also considers the use of explosives as an aggravating
circumstance, there is a need to make the necessary clarification insofar as
the legal implications of the said amendatory law vis--vis the qualifying
circumstance of by means of explosion under Article 248 of the Revised
Penal Code are concerned. Corollary thereto is the issue of which law should
be applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties
imposed under the old illegal possession of firearms law, P.D. 1866, which
prevailed during the tumultuous years of the Marcos dictatorship. The
amendatory law was enacted, not to decriminalize illegal possession of
firearms and explosives, but to lower their penalties in order to rationalize
them into more acceptable and realistic levels.[34]
This legislative intent is conspicuously reflected in the reduction of the
corresponding penalties for illegal possession of firearms, or ammunitions

and other related crimes under the amendatory law. Under Section 2 of the
said law, the penalties for unlawful possession of explosives are also lowered.
Specifically, when the illegally possessed explosives are used to commit any
of the crimes under the Revised Penal Code, which result in the death of a
person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be
considered only as an aggravating circumstance. Section 3 of P.D. No. 1866
as amended by Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby
further amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Explosives. The penalty of prision mayor in its maximum period
to reclusion temporal and a fine of not less than Fifty thousand pesos
(P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand
grenade(s), rifle grenade(s), and other explosives, including but not limited
to pillbox, molotov cocktail bombs, fire bombs, or other incendiary devices
capable of producing destructive effect on contiguous objects or causing
injury or death to any person.
When a person commits any of the crimes defined in the Revised
Penal Code or special law with the use of the aforementioned
explosives, detonation agents or incendiary devises, which results
in the death of any person or persons, the use of such explosives,
detonation agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the penalty of
death is DELETED.)
x x x x x x x x x.
With the removal of death as a penalty and the insertion of the term xxx
as an aggravating circumstance, the unmistakable import is to downgrade
the penalty for illegal possession of explosives and consider its use merely as
an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA No.
8294 to consider as aggravating circumstance, instead of a separate offense,
illegal possession of firearms and explosives when such possession is used to
commit other crimes under the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the
definition of murder under Article 248, but merely made the use of
explosives an aggravating circumstance when resorted to in committing any
of the crimes defined in the Revised Penal Code. The legislative purpose is to
do away with the use of explosives as a separate crime and to make such
use merely an aggravating circumstance in the commission of any crime
already defined in the Revised Penal Code. Thus, RA No. 8294 merely added
the use of unlicensed explosives as one of the aggravating circumstances
specified in Article 14 of the Revised Penal Code. Like the aggravating
circumstance of explosion in paragraph 12, evident premeditation in
paragraph 13, or treachery in paragraph 16 of Article 14, the new
aggravating circumstance added by RA No. 8294 does not change the
definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot
be made applicable in this case. Before the use of unlawfully possessed
explosives can be properly appreciated as an aggravating circumstance, it
must be adequately established that the possession was illegal or
unlawful, i.e., the accused is without the corresponding authority or permit to
possess. This follows the same requisites in the prosecution of crimes
involving illegal possession of firearm [35] which is a kindred or related offense
under P.D. 1866, as amended. This proof does not obtain in the present
case. Not only was it not alleged in the information, but no evidence was
adduced by the prosecution to show that the possession by appellant of the
explosive was unlawful.
It is worthy to note that the above requirement of illegality is borne out
by the provisions of the law itself, in conjunction with the pertinent tenets of
legal hermeneutics.
A reading of the title[36] of R.A. No. 8294 will show that the qualifier
illegal/unlawful ...possession is followed by of firearms, ammunition, or
explosives or instruments... Although the term ammunition is separated from
explosives by the disjunctive word or, it does not mean that explosives are
no longer included in the items which can be illegally/unlawfully
possessed. In this context, the disjunctive word or is not used to separate but
to signify a succession or to conjoin the enumerated items together.
[37]
Moreover, Section 2 of R.A. 8294,[38] subtitled: Section 3.Unlawful
Manufacture, Sale, Acquisition, Disposition or Possession of Explosives,

clearly
refers
of explosives.

to

the unlawful manufacture,

sale,

or

possession

What the law emphasizes is the acts lack of authority. Thus, when the
second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294
speaks of the use of the aforementioned explosives, etc. as an aggravating
circumstance in the commission of crimes, it refers to those explosives, etc.
unlawfully manufactured, assembled, dealt in, acquired, disposed or
possessed mentioned in the first paragraph of the same section. What is per
se aggravating is the use of unlawfully manufactured or possessed
explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio
Comadre had unlawfully possessed or that he had no authority to possess
the grenade that he used in the killing and attempted killings. Even if it were
alleged, its presence was not proven by the prosecution beyond reasonable
doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires
the averment of aggravating circumstances for their application. [39]
The inapplicability of R.A. 8294 having been made manifest, the crime
committed is Murder committed by means of explosion in accordance with
Article 248 (3) of the Revised Penal Code. The same, having been alleged in
the Information, may be properly considered as appellant was sufficiently
informed of the nature of the accusation against him.[40]
The trial court found appellant guilty of the complex crime of murder with
multiple attempted murder under Article 48 of the Revised Penal Code, which
provides:
Art. 48. Penalty for complex crimes. When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means
of committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code,
which follows the pro reo principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may

quantitatively constitute a cluster of several separate and distinct offenses,
yet these component criminal offenses should be considered only as a single
crime in law on which a single penalty is imposed because the offender was
impelled by a single criminal impulse which shows his lesser degree of
perversity.[41]
Under the aforecited article, when a single act constitutes two or more
grave or less grave felonies the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case. [42] Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the
unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that the
law is constitutional and that the death penalty can be lawfully imposed in
the case at bar.
Finally, the trial court awarded to the parents of the victim Robert
Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as
compensatory damages and P20,000.00 as moral damages. Pursuant to
existing jurisprudence[43] the award of civil indemnity is proper. However, the
actual damages awarded to the heirs of Robert Agbanlog should be modified,
considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.[44]
The award of moral damages is appropriate there being evidence to show
emotional suffering on the part of the heirs of the deceased, but the same
must be increased to P50,000.00 in accordance with prevailing judicial policy.
[45]

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the
injuries they sustained. We find this award inappropriate because they were
not able to present a single receipt to substantiate their claims. Nonetheless,
since it appears that they are entitled to actual damages although the
amount thereof cannot be determined, they should be awarded temperate
damages of P25,000.00 each.[46]

WHEREFORE, in view of all the foregoing, the appealed decision of the

Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95)
is AFFIRMED insofar as appellant Antonio Comadre is convicted of the
complex crime of Murder with Multiple Attempted Murder and sentenced to
suffer the penalty of death. He is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay the surviving
victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday,
P25,000.00 each as temperate damages for the injuries they sustained.
Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of
evidence to establish conspiracy, and they are hereby ordered immediately
RELEASED from confinement unless they are lawfully held in custody for
another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83
of the Revised Penal Code, upon finality of this Decision, let the records of
this case be forwarded to the Office of the President for possible exercise of
pardoning power.
SO ORDERED.
PEOPLE
OF
THE
PHILIPPINES, appellee, vs.
ROBIOS y DOMINGO, appellant.

MELECIO

DECISION
PANGANIBAN, J.:
Where the law prescribes a penalty consisting of two indivisible penalties,
as in the present case for parricide with unintentional abortion, the lesser
one
shall
be
applied
in
the
absence
of
any
aggravating
circumstances. Hence, the imposable penalty here is reclusion perpetua, not
death.
The Case
For automatic review by this Court is the April 16, 1999 Decision [1] of the
Regional Trial Court (RTC) of Camiling, Tarlac (Branch 68), in Criminal Case
No. 95-45, finding Melecio Robios[2] y Domingo guilty beyond reasonable
doubt of the complex crime of parricide with unintentional abortion and

sentencing him to death. The decretal portion of the Decision reads as

follows:
WHEREFORE, finding accused Melecio Robios guilty beyond reasonable doubt
of the complex crime of parricide with unintentional abortion, this Court
hereby renders judgment sentencing him to suffer the penalty of DEATH by
lethal injection. He is also ordered to pay P50,000.00 as civil indemnity for
the death of the victim; and P22,800.00 as actual damages.[3]
In an Information dated May 31, 1995, [4] appellant was accused of killing
his pregnant wife and the fetus inside her. It reads thus:
That on or about March 25, 1995 at around 7:00 a.m. in Brgy. San Isidro,
Municipality of Camiling, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused Melecio Robinos, did
then and there willfully, unlawfully and feloniously stab by means of a bladed
knife 8 inches long, his legitimate wife Lorenza Robinos, who was, then six
(6) months pregnant causing the instantaneous death of said Lorenza
Robinos, and the fetus inside her womb.[5]
When arraigned on July 27, 1995, appellant, with the assistance of his
counsel,[6] pleaded not guilty.[7] After due trial, the RTC convicted him.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) narrates the prosecutions
version of how appellant assaulted his pregnant wife, culminating in a brutal
bloodbath, as follows:
1. On March 25, 1995, at around seven oclock in the morning, fifteen-year
old Lorenzo Robios was in his parents house at Barangay San Isidro in
Camiling, Tarlac. While Lorenzo was cooking, he heard his parents, appellant
Melecio Robios and the victim Lorenza Robios, who were at the sala,
quarrelling.
2. Lorenzo heard his mother tell appellant, Why did you come home, why
dont you just leave? After hearing what his mother said, Lorenzo, at a
distance of about five meters, saw appellant, with a double-bladed knife,
stab Lorenza on the right shoulder. Blood gushed from where Lorenza was hit

and she fell down on the floor. Upon witnessing appellants attack on his
mother, Lorenzo immediately left their house and ran to his grandmothers
house where he reported the incident.
3. At around eight oclock in the morning of the same day, Benjamin Bueno,
the brother of the victim Lorenza Robios, was at the house of his mother
Remedios Bueno at Barangay San Isidro. Benjamin, a resident of Barangay
Mabilang in Paniqui, Tarlac, went to his mothers house for the purpose of
informing his relatives that on the evening of March 24, 1995, appellant had
killed his uncle, Alejandro Robios, at Barangay Mabilang. However while
Benjamin was at his mothers house, he received the more distressing news
that his own sister Lorenza had been killed by appellant.
4. Upon learning of the attack on his sister, Benjamin did not go to her house
because he was afraid of what appellant might do. From his mothers house,
which was about 150 meters away from his sisters home, Benjamin saw
appellant who shouted at him, Its good you would see how your sister died.
5. Benjamin sought the help of Barangay Captain Virgilio Valdez who called
the police station at Camiling, Tarlac. SPO1 Herbert Lugo and SPO3 Tirso
Martin, together with the other members of the PNP Alert Team at Camiling,
Tarlac, immediately went to Barangay San Isidro. The police, together with
Benjamin Bueno and some barangay officials and barangay folk, proceeded
to the scene of the crime where they saw blood dripping from the house of
appellant and Lorenza. The police told appellant to come out of the
house. When appellant failed to come out, the police, with the help of
barangay officials, detached the bamboo wall from the part of the house
where blood was dripping. The removal of the wall exposed that section of
the house where SPO1 Lugo saw appellant embracing [his] wife.
6. Appellant and Lorenza were lying on the floor. Appellant, who was lying on
his side and holding a bloodstained double-bladed knife with his right hand,
was embracing his wife. He was uttering the words, I will kill myself, I will kill
myself. Lorenza, who was lying on her back and facing upward, was no
longer breathing. She appeared to be dead.
7. The police and the barangay officials went up the stairs of the house and
pulled appellant away from Lorenzas body. Appellant dropped the knife which
was taken by SPO3 Martin. Appellant tried to resist the people who held him
but was overpowered. The police, with the help of the barangay officials
present, tied his hands and feet with a plastic rope. However, before he was

pulled away from the body of his wife and restrained by the police, appellant
admitted to Rolando Valdez, a neighbor of his and a barangay kagawad, that
he had killed his wife, showing him the bloodstained knife.
8. Upon examining Lorenza, SPO1 Lugo found that she was already dead. She
was pale and not breathing. The police thus solicited the services of a funeral
parlor to take Lorenzas body for autopsy.Appellant was brought to the police
station at Camiling, Tarlac. However, he had to be taken to the Camiling
District Hospital for the treatment of a stab wound.
9. After the incident, Senior Inspector Reynaldo B. Orante, the Chief of Police
at Camiling, Tarlac, prepared a Special Report which disclosed that:
The victim Lorenza Robios was six (6) months pregnant. She suffered 41 stab
wounds on the different parts of her body.
That suspect (Melecio Robios) was under the influence of liquor/drunk [who]
came home and argued/quarreled with his wife, until the suspect got irked,
[drew] a double knife and delivered forty one (41) stab blows.
Suspect also stabbed his own body and [was] brought to the Provincial
Hospital.
Recovered from the crime scene is a double blade sharp knife about eight (8)
inches long including handle.
10. During the trial of the case, the prosecution was not able to present the
doctor who conducted the autopsy on Lorenza Robios body. Nor, was the
autopsy report presented as evidence.[8]
Version of the Defense
Appellant does not refute the factual allegations of the prosecution that
he indeed killed his wife, but seeks exoneration from criminal liability by
interposing the defense of insanity as follows:
Pleading exculpation, herein accused-appellant interposed insanity. The
defense presented the testimonies of the following:
FEDERICO ROBIOS, 19 years old son of Melecio Robios, testified that his
parents had occasional quarrels[. B]efore March 23, 1995, his father told him

that he had seen a person went [sic] inside their house and who wanted to
kill him. On March 23, 1995, he heard his father told the same thing to his
mother and because of this, his parents quarreled and exchanged heated
words.
LOURDES FAJARDO, nurse of the Tarlac Penal Colony, testified that she
came to know Melecio Robios only in May to June 1996. Every time she
visited him in his cell, accused isolated himself, laging nakatingin sa malayo,
rarely talked, just stared at her and murmured alone.
BENEDICT REBOLLOS, a detention prisoner of the Tarlac Penal Colony,
testified that he and the accused were seeing each other everyday from 6:00
oclock in the morning up to 5:30 oclock in the afternoon. He had observed
that accused sometime[s] refused to respond in the counting of
prisoners. Sometimes, he stayed in his cell even if they were required to fall
in line in the plaza of the penal colony.
DOMINGO FRANCISCO, another detention prisoner of the Tarlac Penal
Colony, testified that as the accuseds inmate, he had occasion to meet and
mingle with the latter. Accused sometimes was lying down, sitting, looking,
or staring on space and without companion, laughing and sometimes crying.
MELECIO ROBIOS, herein accused-appellant, testified that on March 25,
1995, he was in their house and there was no unusual incident that
happened on that date. He did not know that he was charged for the crime of
parricide with unintentional abortion. He could not remember when he was
informed by his children that he killed his wife. He could not believe that he
killed his wife.[9]
In view of the penalty imposed by the trial court, this case was
automatically elevated to this Court for review.[10]
The Issues
Appellant submits for our consideration the following assignment of
errors:
I
The court a quo erred in not giving probative weight to the testimony and
psychiatric evaluation of Dr. Maria Mercedita Mendoza finding the accused-

appellant to be suffering from psychosis or insanity classified under

schizophrenia, paranoid type.
II
The court a quo erred in disregarding accused-appellants defense of insanity.
[11]

The Courts Ruling

The appeal is partly meritorious.
Main Issue
Insanity as an Exempting Circumstance
At the outset, it bears noting that appellant did not present any evidence
to contravene the allegation that he killed his wife. Clear and undisputed are
the RTC findings on the identity of the culprit and the commission of the
complex crime of parricide with unintentional abortion. Appellant, however,
interposes the defense of insanity to absolve himself of criminal liability.
Insanity presupposes that the accused was completely deprived of reason
or discernment and freedom of will at the time of the commission of the
crime.[12] A defendant in a criminal case who relies on the defense of mental
incapacity has the burden of establishing the fact of insanity at the very
moment when the crime was committed. [13] Only when there is a complete
deprivation of intelligence at the time of the commission of the crime should
the exempting circumstance of insanity be considered.[14]
The presumption of law always lies in favor of sanity and, in the absence
of proof to the contrary, every person is presumed to be of sound mind.
[15]
Accordingly, one who pleads the exempting circumstance of insanity has
the burden of proving it.[16] Failing this, one will be presumed to be sane
when the crime was committed.
A perusal of the records of the case reveals that appellants claim of
insanity is unsubstantiated and wanting in material proof. Testimonies from
both prosecution and defense witnesses show no substantial evidence that
appellant was completely deprived of reason or discernment when he
perpetrated the brutal killing of his wife.

As can be gleaned from the testimonies of the prosecution witnesses, a

domestic altercation preceded the fatal stabbing. Thus, it cannot be said that
appellant attacked his wife for no reason at all and without knowledge of the
nature of his action. To be sure, his act of stabbing her was a deliberate and
conscious reaction to the insulting remarks she had hurled at him as attested
to by their 15-year-old son Lorenzo Robios. We reproduce Lorenzos testimony
in part as follows:
Q: Before your father Melecio Robios stabbed your mother, do you
recall if they talked to one and the other?
A: Yes, sir.
ATTY. IBARRA:
Q: Did you hear what they talked about?
A: Yes, sir.
Q: What did you hear?
A: Why did you come home, why dont you just leave?, Sir.
COURT:
In other words, you better go away, you should have not come
back home.
ATTY. IBARRA:
Q: After your mother uttered those words, what did your father do?
A: That was the time that he stabbed my mother, sir.[17]
Furthermore, appellant was obviously aware of what he had done to his
wife. He was even bragging to her brother, Benjamin Bueno, how he had just
killed her. Bueno testified thus:
ATTY. JOAQUIN:
Q: Now, from the house of your mother, can you see the house of
your sister?

A: Yes, sir.
Q: When you arrived at the house of your mother, Lorenzo Robios was
already there in the house of your mother, is that right, Mr.
Witness?
A: Yes, sir.
Q: And he was the one who informed you about your sister already
dead?
A: Yes, Sir.
Q: Did you go near the house of your sister upon learning that she
was already dead?
A: No, sir.
ATTY. JOAQUIN:
Q: Why?
A: My brother-in-law was still amok, Sir.
COURT:
Q: Why do you know that he was amok?
A: Yes, sir, because he even shouted at me, sir.
Q: How?
A: Its good you would see how your sister died, Sir.[18]
Finally, the fact that appellant admitted to responding law enforcers how
he had just killed his wife may have been a manifestation of repentance and
remorse -- a natural sentiment of a husband who had realized the
wrongfulness of his act. His behavior at the time of the killing and
immediately thereafter is inconsistent with his claim that he had no
knowledge of what he had just done. Barangay Kagawad Rolando Valdez
validated the clarity of mind of appellant when the latter confessed to the

former and to the police officers, and even showed to them the knife used to
stab the victim. Valdezs testimony proceeded as follows:
Q: And what did you discover when you went there at the house of
Melecio Robios?
A: When we arrived at the house of Melecio Robios, it was closed. We
waited for the police officers to arrive and when they arrived, that
was the time that we started going around the house and when
we saw blood, some of our companions removed the walling of the
house and at that time, we saw the wife of Melecio Robios lying
down as if at that moment, the wife of Melecio Robios was already
dead, Sir.
Q: When you were able to remove this walling, what did you do?
A: We talked to Melecio Robios, Sir.
xxxxxxxxx
Q: What was he doing when you talked to him?
A: When we saw them they were both lying down and when we got
near, he said he killed his wife and showing the weapon he used,
sir.
Q: What is that weapon?
A: Double bladed weapon, Sir.
COURT:
What is that, knife?
A: Its a double bladed knife, sir.
xxxxxxxxx
COURT:
He admitted to you that he killed his wife?

A: Yes, sir.
Q: How did he say that, tell the court exactly how he tell you that, in
tagalog, ilocano or what?
A: What I remember Sir he said, Pinatay ko ni baket ko meaning I
killed my wife, Sir.[19]
Clearly, the assault of appellant on his wife was not undertaken without
his awareness of the atrocity of his act.
Similarly, an evaluation of the testimonies of the defense witnesses
hardly supports his claim of insanity. The bulk of the defense evidence points
to his allegedly unsound mental condition after the commission of the
crime. Except for appellants 19-year-old son Federico Robios, [20] all the other
defense witnesses testified on the supposed manifestations of his
insanity after he had already been detained in prison.
To repeat, insanity must have existed at the time of the commission of
the offense, or the accused must have been deranged even prior
thereto. Otherwise he would still be criminally responsible. [21] Verily, his
alleged insanity should have pertained to the period prior to or at the precise
moment when the criminal act was committed, not at anytime
thereafter. In People v. Villa,[22] this Court incisively ratiocinated on the matter
as follows:
It could be that accused-appellant was insane at the time he was examined
at the center. But, in all probability, such insanity was contracted during the
period of his detention pending trial. He was without contact with friends and
relatives most of the time. He was troubled by his conscience, the realization
of the gravity of the offenses and the thought of a bleak future for him. The
confluence of these circumstances may have conspired to disrupt his mental
equilibrium. But, it must be stressed, that an inquiry into the mental state of
accused-appellant should relate to the period immediately before or at the
precise moment of doing the act which is the subject of the inquiry, and his
mental condition after that crucial period or during the trial is
inconsequential for purposes of determining his criminal liability. In fine, this
Court needs more concrete evidence on the mental condition of the person
alleged to be insane at the time of the perpetration of the crimes in order
that the exempting circumstance of insanity may be appreciated in his favor.
x x x.[23] (Italics supplied)

Indeed, when insanity is alleged as a ground for exemption from criminal

responsibility, the evidence must refer to the time preceding the act under
prosecution or to the very moment of its execution. If the evidence points to
insanity subsequent to the commission of the crime, the accused cannot be
acquitted.[24]
The testimony of Dr. Maria Mercedita Mendoza, the psychiatrist who
conducted an examination of the mental condition of appellant, does not
provide much help in determining his state of mind at the time of the
killing. It must be noted that she examined him only on September 11, 1995,
or six months after the commission of the crime. [25] Moreover, she was not
able to make a background study on the history of his mental condition prior
to the killing because of the failure of a certain social worker to gather data
on the matter.[26]
Although Dr. Mendoza testified that it was possible that the accused had
already been suffering from psychosis at the time of the commission of the
crime,[27] she likewise admitted that her conclusion was not definite and was
merely an opinion.[28] As correctly observed by the trial court, her
declarations were merely conjectural and inconclusive to support a positive
finding of insanity. According to the RTC:
The testimony of Dr. Maria Mercidita Mendoza, who examined accused at the
National Center for Mental Health, Mandaluyong City, that at the time of
examination accused Melecio Robios was still mentally ill; that accused was
experiencing hallucination and suffering from insanity and it is possible that
the sickness have occurred eight (8) to nine (9) months before examination;
and in her opinion accused was suffering from delusion and
hallucination. And her opinion that at the time accused stabbed himself, he
was not in his lucid interval, is merely her conclusion. xxx xxx xxx Aside from
being her opinion, she conducted the mental, physical and neurological
examinations on the accused seven (7) months after the commission of the
offense. That span of seven (7) months has given accused an opportunity to
contrive and feign mental derangement. Dr. Mendoza had no opportunity to
observed (sic) and assessed (sic) the behavior of the accused immediately
before, during and immediately after the commission of the offense. Her
finding is conjectural, inconclusive. She did not conduct background
examination of the mental condition of the accused before the incident by
interviewing persons who had the opportunity to associate with him.[29]

Hence, appellant who invoked insanity should have proven that he had
already been completely deprived of reason when he killed the victim.
[30]
Verily, the evidence proffered by the defense did not indicate that he had
been completely deprived of intelligence or freedom of will when he stabbed
his wife to death. Insanity is a defense in the nature of a confession or
avoidance and, as such, clear and convincing proof is required to establish its
existence.[31] Indubitably, the defense failed to meet the quantum of proof
required to overthrow the presumption of sanity.
Second Issue:
Proper Penalty
Although the RTC correctly rejected the defense of insanity, it
nonetheless erred in imposing the death penalty on appellant. It imposed the
maximum penalty without considering the presence or the absence of
aggravating and mitigating circumstances. The imposition of the capital
penalty was not only baseless, but contrary to the rules on the application of
penalties as provided in the Revised Penal Code. Even the Office of the
Solicitor General concedes this error in the imposition of the death penalty.[32]
Since appellant was convicted of the complex crime of parricide with
unintentional abortion, the penalty to be imposed on him should be that for
the graver offense which is parricide.This is in accordance with the mandate
of Article 48 of the Revised Penal Code, which states: When a single act
constitutes two or more grave or less grave felonies, x x x, the penalty for
the most serious crime shall be imposed, x x x.
The law on parricide, as amended by RA 7659, is punishable
with reclusion perpetua to death. In all cases in which the law prescribes a
penalty consisting of two indivisible penalties, the court is mandated to
impose one or the other, depending on the presence or the absence of
mitigating and aggravating circumstances.[33] The rules with respect to the
application of a penalty consisting of two indivisible penalties are prescribed
by Article 63 of the Revised Penal Code, the pertinent portion of which is
quoted as follows:
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:
xxxxxxxxx

2. When there are neither mitigating nor aggravating circumstances in the

commission of the deed, the lesser penalty shall be applied. (Italics supplied)
Hence, when the penalty provided by law is either of two indivisible
penalties and there are neither mitigating nor aggravating circumstances,
the lower penalty shall be imposed.[34]Considering that neither aggravating
nor mitigating circumstances were established in this case, the imposable
penalty should only be reclusion perpetua.[35]
Indeed, because the crime of parricide is not a capital crime per se, it is
not always punishable with death. The law provides for the flexible penalty
of reclusion perpetua to death -- two indivisible penalties, the application of
either one of which depends on the presence or the absence of mitigating
and aggravating circumstances.[36]
WHEREFORE, the Decision of the Regional Trial Court of Camiling, Tarlac
(Branch 68) in Criminal Case No. 95-45 is hereby AFFIRMED with
the MODIFICATION that
the
penalty
isREDUCED to reclusion
perpetua. Consistent with current jurisprudence, appellant shall pay the heirs
of the victim the amount of P50,000 as civil indemnity and P22,800 as actual
damages, which were duly proven. No pronouncement as to costs.
SO ORDERED.

G.R. No. L-1935, People v. Balotol, 84 Phil. 289

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
August 11, 1949
G.R.
No.
PEOPLE
OF
THE
vs.
ELADIO BALOTOL, defendant-appellant.

L-1935
PHILIPPINES, plaintiff-appellee,

Baltazar
M.
Villanueva
for
the
appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Luis R. Feria
for the appellee.
OZAETA, J.:
This is an appeal from a sentence of the Court of First Instance of Samar
convicting the appellant of double murder and sentencing him to suffer life
imprisonment and to indemnify the heirs of the deceased Potenciano
Sabasido and Bernardino Lacambra in the sum of P2,000, respectively, and
to pay the costs.
In 1941 the deceased Potenciano Sabasido wounded the appellant. He was
prosecuted for less serious physical injuries, pleaded guilty, and was
sentenced to suffer fifteen days of imprisonment.
On the afternoon of May 24, 1942, the appellant saw Potenciano Sabasido for
the first time since the latter was released from jail, at a cockpit in the barrio
of Silaga, municipality of Santa Rita, Samar. According to the witnesses for
the prosecution Sabasido was standing outside the ring close behind
Bernardino Lacambra with his two hands holding the shoulders of the latter,
witnessing a cockfight. The appellant approached Sabasido from behind and
stabbed him with a bolo in the back. The weapon pierced thru the body of
Sabasido at the abdominal region and wounded Lacambra also. Sabasido fell
face downward and the appellant stabbed him again in the back near the
right shoulder, the bolo again piercing thru his body. Sabasido died
instantaneously and Lacambra, seven days later.
The appellant admits having cause the death of Potenciano Sabasido but
denies having wounded of Bernardino Lacambra. "I do not know who caused
wound of Bernardino Lacambra," he testified. According to him, while he was
walking around the ring of the cockpit looking for a bet, Potenciano Sabasido
saw him and said to him: "So you are the one who filed a complaint against
me. I am going to kill you." At that very moment, he said, Sabasido stabbed
him and hit him on the left forearm above the elbow; that Sabasido again
stabbed him and hit him on his left buttock; that then he held the right arm
of Sabasido with his left hand and stabbed Sabasido on the right side of his
body, "which is a little bit to the back. Sabasido released my hand which was
holding his right arm and then stabbed me from left to right. Then I held his

right wrist with my felt hand and pushed same towards Sabasido's body and I
trust him on his abdomen." After that he ran away, he said.
The accused called two witnesses, Celso Palo and Basillo Lacambra, to
corroborate his story. These two witnesses testified in substance to the same
effect as the accused, except that they added that it was the deceased
Potenciano Sabasido who wounded Bernardino Lacambra accidentally while
the accused was running away and Sabasido was pursuing him.
The trial court did not believe the testimony of the accused and his witnesses
and believed that of the witnesses for the prosecution.
After a careful and thorough study of the record we agree with the trial court.
The nature and the position of the wounds of Potenciano Sabasido
completely belie the theory of the defense. Both wounds pierced thru the
body from back to front and could not have been inflicted by the accused in
the manner claimed by him, that is to say, in a face-to-face fight. Moreover,
the story of the witnesses for the defense as to how Bernardino Lacambra
was wounded, namely, that Sabasido accidentally hit him while he was
pursuing the appellant after the latter had wounded him twice, is
unbelievable. No man with two bolo wounds thru his body, one thru the
abdominal region and the other thru the thorax, could possibly run in pursuit
of another. Those wounds were necessarily so fatal as to cause
instantaneous death. On the other hand, the testimony of the witnesses for
the prosecution as to how both Sabasido and Lacambra were wounded, is
confirmed by the nature and the position of the wounds of the two victims.
The crime committed by the appellant was double murder, defined and
penalized in article 248, in relation to article 48, of the Revised Penal Code.
Article 48 provides that when a single act constitutes two or more grave or
less grave felonies, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. The penalty for murder
is reclusion temporal in its maximum period to death. Since under article 48
this penalty must be applied in its maximum period, the appellant should be
sentenced to death. However, in view of the lack of the necessary number of
votes to impose the death penalty, we are constrained to apply the penalty
next lower in degree, which is life imprisonment.
The judgment is affirmed, with costs.

G.R. Nos. 109131-33 October 3, 1994

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
LEONITO MACAGALING y ATILLANO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sancho F. Ferancullo for accused-appellant.

REGALADO, J.:
On July 19, 1991, two separate informations were filed against accusedappellant Leonito Macagaling y Atillano for the crimes of murder and
homicide and, on October 29, 1991, for an additional charge of illegal
possession of a firearm and ammunition, which were docketed as Criminal
Cases Nos. 1814, 1815 and 1834, respectively, before the Regional Trial
Court, Branch 81, Romblon, Romblon. 1
Assisted by counsel de parte, appellant pleaded not guilty when arraigned in
Criminal Cases Nos. 1814 and 1815 on August 28, 1991. 2 Likewise, appellant
pleaded
not
guilty
when
arraigned
in
Criminal
Case
3
No. 1834 on May 28, 1992. The three cases were thereafter consolidated
and jointly tried under the continuous trial system.
On September 14, 1992, the lower court rendered its decision on the
aforesaid three indictments with the following dispositions:
WHEREFORE, this Court finds the accused LEONITO MACAGALING
Y ATILLANO GUILTY beyond reasonable doubt of the crimes of:
1) Homicide under the Information, dated July 19, 1991, in
Criminal Case No. 1814, and sentences him to an indeterminate
prison term of from TEN (10) years and ONE (1) DAY of prision
mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS AND ONE (1) DAY of reclusion temporal, as maximum,
with the accessory penalties therefor. The accused is ORDERED
to pay the heirs of DENNIS MACAGALING then following amounts:

a) P50,000.00 as indemnity for death and

b) P34,000.00 as actual damages
without subsidiary imprisonment in case of insolvency, and to
pay the costs.
2) Homicide under the information, dated July 19, 1991, in
Criminal Case No. 1815, and sentences him to an indeterminate
prison term of from EIGHT (8) YEARS AND ONE (1) DAY of prision
mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal, as maximum,
with the accessory penalties therefor. The accused is ORDERED
to pay the heirs of the deceased TEOTIMO FAMERONAG the
following amounts:
a) P50,000.00 as indemnity for death;
b) P64,000.00 as actual damages; and
c) P350,000.00 by way of lost earnings
without subsidiary imprisonment in case of insolvency, and to
pay the costs.
3) Illegal Possession of Firearm and Ammunition under the
Information, dated October 29, 1991, in Criminal Case No. 1834,
and sentences him to suffer the penalty of reclusion perpetua,
and to pay the costs.
The .38 caliber revolver (Smith and Wesson original without
serial number) (Exh. E); the five (5) empty shells (Exhs. E-1 to E5); and the live bullet (Exh. E-6) are confiscated in favor of the
government.
After the judgment has become final, the Clerk of Court is
ordered to deliver and deposit the foregoing Exhibits E, E-1 to E6, inclusive, to the Provincial Director, PNP, of the Province of
Romblon properly receipted. Thereafter, the receipt must be
attached to the record of the case and shall form part of the
record.

The period of preventive imprisonment the accused had

undergone shall be credited in his favor to its full extent and the
penalties herein imposed shall be served successively in
accordance with Articles 29 and 70, respectively, of the Revised
Penal Code. 4
The prosecution's version of the incident, as culled from the testimony of its
witnesses in open court, is to the effect that in connection with
the barangay fiesta of Calabasahan, Concepcion, Romblon, a coronation ball
was held in the evening of May 2, 1991 at the public plaza. Present on said
occasion, among others, were Antonieto Fabella, barangay captain of San
Pedro, Concepcion, Romblon; Anita Macagaling, mother of the deceased
Dennis
Macagaling;
Pfc. Roque Fesalbon, investigator of the local police station; and Roger
Lacambra, stepson of Teotimo Fameronag.
At about 10:00 P.M., the aforesaid Antonieto Fabella, who was also the
brother-in-law of Dennis Macagaling, was watching the festivities when all of
a sudden he noticed Leonito Macagaling point and then fire a gun at his own
nephew, Dennis Macagaling. The bullet missed Dennis but wounded Teotimo
Fameronag on the right chest causing the latter to collapse in front of Dennis.
Dennis, on his part, tried to escape from Leonito by running away from the
scene. 5
At this juncture, Anita saw that her son Dennis was running in a wobbly
manner and she embraced him to prevent him from falling. Leonito grabbed
the hair of Dennis and yanked his head, pulling the latter away from his
mother. Anita pleaded to Leonito saying, "Don't, Leonito," but the latter
pointed the gun at the temple of Dennis and shot him point-blank. Dennis fell
down ("sumubasob") on the cement floor. Leonito then shot the prostrate
Dennis three times successively on the neck, uttering the expletive "Putang
ina mo," and then tried to leave the vicinity. 6
At that very moment, Pfc. Roque Fesalbon was at the barangay
tanod outpost near the plaza, having been dispatched by his station
commander to maintain peace and order there. Hearing a gunshot, he
immediately went out to investigate and, on his way, he saw Teotimo
Fameronag fall down on the floor of the plaza. He proceeded to the place of
the incident and saw Dennis Macagaling lying on the floor while Leonito
Macagaling was holding a firearm. At that time, he had with him his service

pistol and he was also holding an M16 armalite rifle. Sensing that Leonito
was about to flee, he fired three warning shots to prevent him from doing so.
Initially, Leonito refused to hand over his gun but he later relented. Together
with Pfc. Sofronio Fabregas, Fesalbon arrested Leonito and took him to the
latter's house which was near the scene of the incident. Fesalbon inspected
the gun which he had retrieved from Leonito and found five empty shells and
one live bullet. The serial number of the gun had been erased. 7
Meanwhile, Roger Lacambra, a stepson of Teotimo Fameronag and a member
of a dance group, also heard the gunshots. He noticed that people were
screaming and scampering away from the dance hall. Wanting to know the
cause of the commotion, he went near the dance hall and saw Fameronag
staggering towards him. Fameronag fell down on the floor and asked for his
help. With the assistance of his co-dancers, he brought Fameronag to a
hospital in Pinamalayan, Oriental Mindoro and, later, to the provincial
hospital of Calapan where the latter expired.8
On the other hand, after talking to Leonito Macagaling in the latter's
residence, Fesalbon decided to go back to the crime scene to proceed with
the investigation. He verified that Fameronag had one gunshot would while
Dennis was shot four times. He also found out that the motive of the killing
might have been Leonito's suspicion that Dennis was divulging information
about the former's participation in illegal fishing. It appears that Leonito was
previously charged with illegal fishing but the case was later dismissed. 9
According to Anita Macagaling, her family incurred funeral and burial
expenses in the sum of P15,000.00. For their trips to and from Corcuera, they
spent P2,000.00 for herself and their witnesses' transportation, aside from
P19,000.00 incurred as litigation expenses. 10 On the other hand, Concepcion
Vda. de Fameronag, testified that she spent P40,000.00 for the burial and the
wake of her deceased husband, and incurred litigation, transportation and
other incidental expenses in the sum of P31,500.00. 11
As was to be anticipated, the defense had a different account of the incident.
Rosauro Fabreag, Jr. testified that between 5:30 to 6:00 P.M. of the same day,
he saw Dennis Macagaling, together with Nonoy Fabellon, Roger Lacambra
and two others whose names he does not know, drinking in a store near his
house. Dennis asked him to join them and he accepted the invitation. While
they were drinking, Dennis showed him a gun tucked on his waist. At about

6:00 P.M., after having taken a couple of drinks, he decided to leave the
group which appeared to be very drunk at that time. 12
William Ferrancullo, a barangay tanod of Calabasahan and a relative of
appellant, was also called to testify for the defense. He averred that in the
evening of May 2, 1991, he and other barangay officials were assigned
byBarangay Captain Feras to oversee the proceedings and maintain peace
and order at the plaza. At about 9:30 o'clock the evening, he was at the gate
and there he noticed a group of five apparently drunken men enter the
dance hall. 13
Later, he decided to go to the barangay tanod outpost located a few meters
from the gate. Abruptly, he heard a gunshot coming from the direction where
the intoxicated persons were seated. Rushing towards that area to
investigate, he met Teotimo Fameronag who appeared to have been shot. He
saw Fameronag fall to the floor and it was then that he noticed Dennis
Macagaling holding a gun and threatening to shoot anyone who would come
near him. Frightened, he did not move from the spot where he was
standing. 14
While all these things were happening, appellant Leonito Macagaling claims
that he was in his residence at Calabasahan, getting ready to rest for the
night. He was startled when he heard a gunshot coming from the direction of
the plaza. Still in his short pants and undershirt, he hurried to the plaza and
saw the group of Dennis Macagaling, Willy Ferrancullo, Willito Bruit, and
Carlito Macagaling. He approached them and when he was about two meters
from the group, he became aware of Dennis Macagaling who was intoxicated
and holding a gun. Leonito asked Dennis to drop the gun but the latter
retorted, "Isa ka pa." Without warning, Dennis fired at him but missed.
Leonito dashed towards Dennis and tried to wrestle the gun away from him.
A struggle for the firearm ensued and they grappled for it on the floor. While
they were thus wrestling for the gun, it went off and hit Dennis. Leonito then
stood up, went home, and informed his wife of what had just happened. 15
Leonito's wife, after observing that he had some bruises, proceeded to clean
them. Shortly thereafter, policemen Roque Fesalbon and Sofronio Fabregas,
together with Ferrancullo, arrived and inquired if the gun was his. He denied
ownership of the firearm. Informed by them that Dennis was dead, Leonito
said it was not his fault. The policemen then left. 16

Fesalbon, Fabregas and Ferrancullo thereafter went back to the crime scene
and decided to bring Fameronag, then still alive, to Pinamalayan for
treatment. There being no doctor then available in the barangay, the body of
Dennis Macagaling was examined by a rural health midwife, Avemie F.
Fabroa, who submitted her medical findings. 17
Queried as to what might have motivated the deceased Dennis Macagaling
to harbor any ill feelings against him, Leonito recounted an incident that took
place in October, 1990 when he slapped Diomedes, the younger brother of
Dennis Macagaling. It appears that Leonito and Diomedes had a previous
agreement that the latter would work in the former's fishing operations. Due
to Diomedes' commitment to work for him, Leonito advanced him some
money but, much to his dismay, Diomedes decided to join another group.
Leonito waited for Diomedes along the shore to demand an explanation. An
argument ensued and Leonito slapped Diomedes when the latter cursed him.
Having learned of the slapping incident ten days later, Dennis confronted
Leonito. There was a heated exchange of words between them, with Dennis
later warning him, "You watch out." 18
Seeking to discredit Pfc. Fesalbon's testimony, Leonito told the court that
Fesalbon had reason to hate him. He claimed that in 1976, due to an incident
in a dance hall at Sampong, Calabasahan, he filed an administrative case
against Fesalbon, Luvizmindo Fabroa and Sofronio Fabregas before the
National Police Commission. In retaliation, Fesalbon filed a criminal case for
less serious physical injuries against him. However, both cases were
dismissed
after
they
decided
to
settle
the
matter
among
19
themselves. Appellant
opined
that
Pfc. Fesalbon continued to hold a grudge against him.
1. In a long line of cases, it has been held that where the accused admits the
killing of the victim but invokes self-defense, it is incumbent upon him to
prove by clear and convincing evidence that he indeed acted in legitimate
defense of himself. 20 As the burden of proof is shifted to him, he must
consequently rely on the strength of his own evidence and not on the
weakness of that of the prosecution. Accordingly, the proverbial bone of
contention with respect to a killing under such circumstances, is whether or
not the accused has presented sufficient evidence to support him claim of
self-defense. 21

A careful analysis of appellant's version and a thorough evaluation of the

evidence presented by the parties fail to persuade this Court to rule in
appellant's favor.
For one, Leonito's version of the incident appears to be too good to be true.
Leonito was confronted by an armed Dennis Macagaling who apparently was
prepared to shoot him. In addition, he and Dennis did not exactly part as
good friends when they last saw each other. In fact, the latter had threatened
him to "watch out." Despite all these, Leonito is supposed to have
nonchalantly directed Dennis to hand over his gun. Not heeding his order,
Dennis fired at him, whereupon Leonito heroically rushed towards Dennis and
tried to wrestle the gun away from him, seemingly unconcerned for his
safety. And then, after Dennis was shot "accidentally" while they were
wrestling for the gun, Leonito just calmly got up and went home, as if
nothing had happened.
If, as Leonito asserted, he had tried to get Dennis to hand over the gun
because he was even concerned that an innocent bystander might be hurt, it
baffles the Court why he did not immediately rush his own nephew Dennis to
the hospital for medical care and attention when the latter was shot. It is a
most unusual reaction for one who had accidentally shot another to just
leave the vicinity with the victim unattended to or without even making
arrangements for his care. Furthermore, as will hereafter be discussed, the
number of wounds sustained by the victim completely demolishes this theory
of accidental shooting.
Principal defense witness William Ferrancullo, who was presented in court
obviously to corroborate the version of appellant, miserably failed to do so.
He is one witness the defense could have done without, for this star witness
could not seem to get his story straight, conveniently changing his testimony
to suit his purpose at the particular moment, without taking into
consideration the statements he had previously made, some instances of
which we shall illustrate.
For example, Ferrancullo earlier testified that when he was asked by
Pfc. Roque Fesalbon as to who started the trouble, he pointed to Leonito
Macagaling as the culprit. 22 Later, however, he insisted that he did not
inform the policemen as to what he knew, giving the flimsy reason that
"there was no chance for us to talk." 23 How he could justify that excuse is
beyond comprehension since he himself asserted that he was all the while

with the policemen when they went to appellant's residence after the
shooting and he also tagged along when they went back to the scene of the
crime where they conducted further investigations.
Evidently, Ferrancullo had definite knowledge that Leonito was a suspect in
these cases. His statements, however, would show that he does not have the
uncanny knack for lying and getting away with it. In an earlier testimony, he
said it was only on July 2 or 5, 1992, when so informed by the wife of Leonito,
that he came to know that Leonito was a suspect in the cases. 24 Yet, he
subsequently admitted that as early as June, 1992, he had visited Leonito at
the provincial jail where the latter was detained because of the killings in
question. 25
The trial court, posing clarificatory questions, asked Ferrancullo about the
persons to whom he had confided what he knew about the case. He said he
first narrated the incident to his mother who lives in the mountains of San
Pedro on the morning of May 3, 1991. 26 Pressed further by the court, he
amended that by saying that he had informed his wife thereof after he left
the dance hall of that fateful night. He also told Atty. Ferrancullo about the
incident in November, 1991 and, naturally, when he testified in court. Asked
if he told any other person, he said there was none. Later, he claimed that he
also told Leonito's wife. 27
The court, not satisfied with the answers it was getting from the witness,
inquired why Ferrancullo, being abarangay tanod, did not tell
the barangay captain who had assigned him at the plaza as to what he knew.
This time, Ferrancullo suddenly recalled that, from Leonito's house, he did in
fact go to the barangay captain's house purposely to inform the latter of the
incident. 28
Ferrancullo's propensity for prevarication is further demonstrated by his
varying accounts as to the wounds sustained by the victim. First, he asserted
that while Leonito and Dennis were grappling for the gun, he heard only two
shots 29 which meant that Dennis could have sustained only two gunshot
wounds at the most. Thereafter, he said that he was sure that the victim
sustained one shot on the head and three on the neck, having been present
when the photographs of the cadaver of Dennis was taken. Later, he
changed his mind, stating that the victim suffered only one wound on the
neck
and
one
of
the
30
head.

This brings us to the matter of the number of wounds sustained by the

victim, which physical evidence is vital since it could lend credence to
appellant's claim of self-defense. However, as earlier stated, appellant's
version and concomitant claim of self-defense is belied and negated
precisely by the number of wounds sustained by the deceased and the
location thereof. Appellant maintains that while both he and Dennis were
struggling for control of the gun, the same accidentally fired, hitting the
latter. If indeed the firing of the gun was merely accidental and it fired only
once, it would be impossible for Dennis to sustain four gunshot wounds, one
in the temple and three in the neck. 31 Furthermore, the number of wounds
indicate that the act was no longer an act of self-defense but a determined
effort to kill the victim. 32 Such wounds are indicative of aggression and
confirm the theory of the prosecution that appellant assaulted the
deceased. 33
Considering the grave contradictions in Ferrancullo's testimony on issues of
serious importance, this Court agrees with the court a quo which, after
chronicling twelve instances undermining the credibility of said witness,
trenchantly concluded that "the principal witness of the defense, William
Ferrancullo, did not see the incident that evening or if he did, he narrated it
differently." 34
In his brief, appellant makes an issue of the fact that although Antonieto
Fabella categorically testified in court that it was Leonito Macagaling who
shot and killed Dennis Macagaling, he did not mention their specific names in
his affidavit. This argument is misleading and specious, to say the least. A
careful perusal of said affidavit shows that when asked to narrate what
happened, Fabella indeed did not refer to the parties involved by their given
names. However, immediately after said narration, he was asked whether he
knew their names and he answered in the affirmative, giving their first and
family names. 35
Appellant, in his desperate bid for acquittal, even questions the fact that the
lower court, instead of granting his own counsel's motion for a
postponement, appointed Atty. Cesar M. Madrona of the Public Attorney's
Office as counsel de oficio. Appellant asserts that, in doing so, the trial court
deprived him of his constitutional right to be represented by a counsel of his
choice. We reject this pretension.

The records show that appellant was given the right to choose his own
counsel. However, the court in its desire to finish the case as early as
practicable under the continuous trial system made appropriate
arrangements to avoid unnecessary delay and postponements of the trial in
case of the absence of appellant's counsel de parte. Thus, in its December
12, 1991 order, the trial court set out the specific dates for the presentation
of the prosecution witnesses, noting that the prosecution witnesses were all
from the far-flung island municipality of Concepcion in Maestre de Campo
Island, Romblon, which is about seven hours away by boat. It also advised
appellant of the availability of Atty. Madrona as counsel de oficio any time
Atty. Sancho Ferancullo was not available. Appellant was properly forewarned
that any legal maneuvers meant to unduly delay these cases wound not be
entertained by the court.
Furthermore, after the presentation of the prosecution witnesses,
Atty. Ferancullo took over the conduct of the defense of appellant. Thus, in all
stages of the trial, his own counsel was in charge except when the
prosecution witnesses were testifying. The Court, after a review of the
records, agrees with the Solicitor General's position that "with the
demonstrated strength of the prosecution evidence, it is unlikely that Atty.
Ferancullo's presence during the entire proceedings would have materially
affected the result of the cases." 36
Appellant would discredit the prosecution witnesses by adverting to the fact
that, except for Pfc. Roque Fesalbon, they are all very close relatives of the
victims. 37 A witness' relation to the victim does not necessarily mean that he
is biased. There is absolutely nothing in our laws to disqualify a person from
testifying in a criminal case in which said person's relative is involved, if the
former was really at the scene of the crime and was a witness to the
execution of the criminal act. Precisely, being blood relatives of the
deceased, these witnesses would not just indiscriminately impute the crime
to anybody but would necessarily identify and seek the conviction of the real
culprit himself to obtain justice for the death of their relative.
Still bent on assailing the credibility of the prosecution witnesses, appellant
cites alleged inconsistencies in their testimonies. Firstly, Antonieto Fabella
had testified that when he heard the first gunshot, Leonito was inside the
dance hall of the barangay plaza. 38 On the other hand, appellant claims that
Roger Lacambra testified that he saw Leonito on the street at that time. This
is, of course, not an inconsistency on the part of Fabella since the supposed

variant version was made by a different witness, Lacambra. Just to satisfy

appellant, however, we have verified from the transcripts that what
Lacambra said was that he saw Leonito on the street before the first shot
was fired, to wit:
Q: If you heard the first shot while you were on your
way, you did not see Leonito before the first shot, am
I correct?
A: I saw him.
xxx xxx xxx
Q: Where was Leonito?
A: He was in the street.

39

A second flaw, according to appellant, is the fact that Fabella testified that he
heard Fesalbon fire two warning shots, 40 whereas Fesalbon declared that he
fired three times. 41 This is clearly an insignificant and minor detail which
would not affect the credibility of the witnesses' testimonies. As long as the
witnesses concur on the material points, slight differences in their
remembrance of the details do not reflect on the essential veracity of their
statements, 42 more so where the trivial issue is the number of shots one
hears from rapid gunfire.
Thirdly, appellant insists that Fabella testified that when appellant was
running away from the crime scene after the incident, Fesalbon and Fabregas
blocked his path while Fesalbon stated that he was alone when he
approached the suspect. However, nowhere in his testimony did Fesalbon
state that he alone blocked the path of Leonito. In fact, when queried as to
what
he
did
with appellant after he got the gun from him, Fesalbon answered, "We
arrested him," 43 thereby affirming the fact that he was not alone at that time
but that Fabregas was working in concert with him.
On the charge of homicide for the killing of Teotimo Fameronag, appellant did
not offer any defense. When Ferrancullo was asked if he knew who killed
Fameronag, he said he did not know. 44 Neither did appellant offer any
explanation on the death of Fameronag despite the positive statements of
the prosecution witnesses that while trying to shoot Dennis, appellant

instead hit Fameronag. The only defense, then, of appellant for the death of
Fameronag is a complete denial. Denial, like alibi, is inherently a weak
defense and cannot prevail over the positive and credible testimony of the
prosecution witnesses that the accused committed the crime, 45 especially
where, as in these cases, such denial is unexplained and is contradicted by
eyewitnesses.
For the death of Dennis Macagaling, although the information in Criminal
Case No. 1814 charges the felony of murder qualified by treachery and
aggravated by evident premeditation, the People's evidence does not prove
the attendance of these circumstances. They cannot, therefore, be
appreciated against appellant and the lower court correctly convicted him of
homicide in Criminal Case No. 1814.
For the killing of Teotimo Fameronag, the same cannot be said to be
accidental as it was the result of anaberratio ictus, or miscarriage of the
blow. As a matter of law, since such death resulted from a culpable aberratio
ictus, appellant should be punished under Article 48, in relation to Article 4,
of the Revised Penal Code. Having committed attempted homicide as against
Dennis Macagaling and consummated homicide with respect to Teotimo
Fameronag when he fired the first shot, appellant committed two grave
felonies with one single act and, accordingly, he would be liable for a
complex crime in the nature of a delito compuesto, or a compound
crime. 46However, not having been so charged, he cannot be convicted of a
complex crime, 47 hence the court below did not err in finding him guilty of
simple homicide in Criminal Case No. 1815.
2. The charge of illegal possession of a firearm and ammunition merits a
more extended consideration. It will be recalled that this third accusation
was filed as Criminal Case No. 1834 on October 29, 1991, or more than three
months after the filing of the first two indictments in the same court, under
an information which alleged that during the same incident involved in
Criminal Case Nos. 1814 and 1815
. . . the said accused, did then and there, without legal authority
therefor, willfully, unlawfully and feloniously have in his
possession and under his custody and control one Cal. 38
Revolver (Smith and Wesson without serial number) with one live
bullet and five empty shells which he used in shooting Dennis
Macagaling and Teotimo Fameronag. 48

Prefatorily, we note from appellant's brief his position that the lower court
erred in holding that the gun was owned by him without being supported by
convincing proof. He asserts that assuming arguendo that the gun was
handed by him to Pfc. Fesalbon immediately after the former arrived at the
scene of the crime, this is not sufficient proof that he owned the
gun. 49 Appellant's theory is off-tangent.
Under Section 1 of Presidential Decree No. 1866, the gravamen of the
offense is basically the fact of possession of a firearm without a license, it
being assumed that it was so possessed with animus possidendi. We have
heretofore explained that, in view of the text of said decree, the crime may
be denominated as simple illegal possession, to distinguish it from the
aggravated form wherein such firearm is used in the commission of a
homicide or murder. 50 However, to be liable for the aggravated form of
illegal possession of a firearm which entails the capital punishment, such
illegal possession must be the specific and principal offense charged, with
the fact of killing being included in the particulars of the indictment. 51
In either case, the offense is committed not on the basis of ownership but of
possession of the firearm without the requisite license or permit, and this
disposes of appellant's objection on this score. What, however, is of greater
concern to the Court is whether the prosecution has discharged the burden
of proof on this charge. Corollarily, the inquiry should be whether there was
sufficient identification of the firearm presented in the trial court and, more
importantly, whether there was sufficient evidence to establish the negative
allegation that appellant possessed the gun "without legal authority
therefor."
On the identification of the gun, these exchanges in the courtroom during
the cross-examination of Pfc. Fesalbon, the lone prosecution witness on this
issue, give us ground to pause and doubt:
Q You also stated that this was the gun you got
from Leonito Macagaling that evening of May 2?
A Yes sir, that is the gun.
Q How did you know that this is the gun?
A Because it was really the gun I took from him.

Q How do you know that this is really the gun?

A Because at the bottom of the bat (sic, should be
butt) there is a serial number and it was erased by
grinding and the serial number was erased.
Q When did you discover that the serial number
here was erased?
A Immediately after my inspection I discovered
that there is no serial number.
Q When did you make your inspection?
A Immediately after his arrest.
xxx xxx xxx
Q But there were many guns like this whose serial
number has been erased, do you think serial number

A I don't know, that is the only gun I saw with

erased serial number, even paltik guns have serial
numbers.
Q So that is the only distinguishing mark that you
can tell us how you recognized this gun to be the gun
which you took from Leonito Macagaling that
evening?
A Not only that serial number but the whole body
of the gun.
COURT:
Did you not place your own personal identification
mark in Exhibit E?
A My personal identification is that I could identify
paltik and those genuine guns.

COURT:
You did not answer the question, answer the
question.
A I did not put any distinguishing mark.
COURT:
That should be answered that way. That can be answered by yes
or no. Next tine again you should place again your own
identification in guns and even ammos. (I)n Exhibits E-1 to E-6,
did you place your own identification mark in each of them?
A No, sir.
COURT:
Next time you place your own mark. Because from apprehension
up to this very moment, it is a long, long time, it crossed the very
handle (sic) by many hands. Proceed.
xxx xxx xxx
ATTY. MADRONA:
Q What I mean with general appearance li(k)e this
gun, would you agree with me that there are
thousands of (S)mith and (W)esson guns with the
general appearance like this?
A Yes, sir.

52

It is a curious fact that although the incident took place on May 2, 1991, the
information in Criminal Case No. 1834 for illegal possession of the gun was
filed only on October 29, 1991. Pfc. Fesalbon testified thereon on May 29,
1992 and yet, although the firearm was in the possession of the police for
more than a year, there was no attempt to ensure its positive identification
through standard police procedure of which Pfc. Fesalbon, as a police
investigator, could not have been unaware.

For that matter, the efforts exerted to obtain evidence proving that appellant
was not a licensed holder of the firearm was lackadaisical at best. This is the
prosecution's only evidence to prove the allegation in the information that
appellant's possession of a firearm was "without legal authority therefor,"
again through the bare testimony of Pfc. Fesalbon:
Q You made mention that you conducted an
investigation after taking Exhibit D (sic, should be E)
from the accused, did you find out whether that gun
is licensed or not?
A Yes, sir.
Q What did you find out?
A I found out that the gun has no license.
Q Do you mean to tell this Honorable Court that
the accused Leonito Macagaling is not a firearm
licensee of your town?
A Yes, sir.

53

This is all. Nor did the witness deign to explain how he arrived at his
conclusion. No other evidence was presented on this serious charge which, in
its aggravated form could, at the least, be punished by reclusion
perpetua due to the proscription against the death penalty.* Yet, despite the
opportunity and intervening time to do so, not even a certification that
appellant was not a licensed firearm holder was obtained from the Firearms
and Explosives Office or the local command of the Philippine National Police.
And this brings us to the question of the necessity and the quantum of
evidence for proving a negative allegation in an information, in this case the
lack of a firearms license or permit.
The evidentiary rule on negative averments in the 1940 Rules of Court
adopted in the 1964 Rules of Court 55 in criminal cases was as follows:

54

as

Sec. 2. Burden of proof in criminal case. In criminal cases the

burden of proof as to the offense charged lies on the prosecution.
A negative fact alleged by the prosecution need not be

provedunless it is an essential ingredient of the offense charged.

(Emphasis ours.)
While the italicized portion was not carried over to the revised Rules on
evidence, there is no reason to believe that such requirement for proof of a
negative element of the offense charged has been dispensed with, since it is
specifically provided therein that the "(b)urden of proof is the duty of a party
to present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law." 56
As applied to prosecutions for illegal possession of firearms and ammunition,
the present rule on proving the negative fact of lack of a license actually
harks back to the case of People vs. Quebral, 57 where we find this passage
clarifying the seemingly contentious pronouncements on the matter:
The rule is, and has always been, that, if the subject of the
negative averment, like, for instance, the act of voting without
the qualifications provided by law, inheres in the offense as an
essential ingredient thereof, the prosecution has the burden of
proving the same (Sec. 297, Act No. 190; U.S. vs. Tria, 17 Phil.,
303, 306, 307). In view, however, of the difficult office of proving
a negative allegation, the prosecution, under such circumstance,
need do no more than make a prima faciecase from the best
evidence obtainable. (U.S. vs. Tria, supra) It would certainly be
anomalous to hold ". . . that mere difficulty in discharging a
burden of making proof should displace it; and as a matter of
principle the difficulty only relieves the party having the burden
of evidence from the necessity of creating positive conviction
entirely by his own evidence so that, when he produces such
evidence as it is in his power to produce, its probative effect is
enhanced by the silence of his opponent" (22 C.J., pp. 81, 82).
xxx xxx xxx
Section 770 of the Administrative Code provides that "no person
shall practice medicine in the Philippine Islands without having
previously obtained the proper certificate of registration issued
by the Board of Medical Examiners. . ." This provision clearly
includes the want of certificate as an essential element of the
offense charged. The negative fact is not separable from the
offense as defined. It is, therefore, incumbent upon the

prosecution to prove that negative fact, and failure to prove it is

a ground for acquittal. (Emphasis in the original text.)
While the offenses involved or discussed therein were illegal practice of
medicine without the certificate of registration and the unlawful act of
voting without the qualifications required by law, the rationale evidently
applies to illegal possession of firearms without a license. Thus, although
there were some supervening departures from the doctrine announced
therein, the principle in Quebral was adopted in People vs. Pajenado 58 where
we held:
Upon the question of whether or not appellant should also be
convicted of the crime of illegal possession of a firearm, We
agree with both appellant's counsel and the Solicitor General that
the appealed decision should be reversed.
It is true that People vs. Lubo, 101 Phil. 179 and People vs.
Ramos, 8 SCRA 758 could be invoked to support the view that it
is incumbent upon a person charged with illegal possession of a
firearm to prove the issuance to him of a license to possess the
firearm, but We are of the considered opinion that under the
provisions of Section 2, Rule 131 of the Rules of Court which
provide that in criminal cases the burden of proof as to the
offense charged lies on the prosecution and that a negative fact
alleged by the prosecution must be proven if "it is an essential
ingredient of the offense charged", the burden of proof was with
the prosecution in this case to prove that the firearm used by
appellant in committing the offense was not properly licensed.
It cannot be denied that the lack or absence of a license is an
essential ingredient of the offense of illegal possession of a
firearm. The information filed against appellant . . . specifically
alleged that he had no "license or permit to possess" the .45
caliber pistol mentioned therein. Thus, is seems clear that it was
the prosecution's duty not merely to allege that negative fact but
to prove it. . . . (Emphasis supplied.)
This doctrinal rule was reiterated in People vs. Tiozon, 59 People vs.
Caling, supra, People vs. Ramos, et al., 60People vs. Arce, 61 and People vs.
Deunida, 62 and this constitutes the present governing case law on this
question. We cannot see how the rule can be otherwise since it is the

inescapable duty of the prosecution to prove all the ingredients of the

offense as alleged against the accused in an information, which allegations
must perforce include any negative element provided by the law to integrate
that offense. We have reiterated quite recently the fundamental mandate
that since the prosecution must allege all the elements of the offense
charged, then it must prove by the requisite quantum of evidence all the
elements it has thus alleged. 63
Applied to the cases at bar, we cannot conceive of how, under the
demonstrated circumstances herein, we can sustain a judgment of conviction
on this particular charge. It may be well to recall that how the firearm came
into appellant's possession is a seriously contested issue, with the
prosecution witnesses merely stating that they saw the gun only when
appellant aimed and fired at the victims, but with appellant contending that
he actually wrested it from Dennis Macagaling. As to who in truth was the
possessor of the firearm prior to the incident cannot be determined with
certitude due to the paucity of the evidence thereon. In fine, since all that
can be deduced is that appellant was in possession of the gun only on that
occasion for a transitory purpose and for the short moment coeval therewith,
it cannot be concluded that he had the animus possidendi which is required
for the offense charged.
The highly unsatisfactory identification of the gun, coupled with the
intervening time between its retrieval from appellant to its presentation in
the court below, increases our misgivings on whether it was in fact the
weapon involved. Indeed, such lack of positive identification is virtually
equivalent to the non-production of the real firearm in court and is analogous
to the situation in People vs. Caling, supra, where the rifle allegedly involved
in the case was not presented in evidence. We held that such failure
effectively closed the door to any proof of the negative fact that no license or
permit therefor had been issued to the accused therein.
The foregoing disquisitions in Quebral, Pajenado and other cited cases have
inevitably clinched the case for herein appellant on this accusation, this time
by reason of the abject failure of the prosecution to adduce the requisite
evidence on its negative averment. Even on the assumption that mere prima
facie evidence of the lack of a license or permit on the part of appellant
would suffice, still the self-serving, unexplained and undocumented
conclusion thereon of Pfc. Roque Fesalbon could not even assume a rough
approximation of that evidential quantum.

WHEREFORE, the judgment of the trial court finding accused-appellant

Leonito Macagaling y Atillano guilty of the crime of homicide in Criminal Case
No. 1814 and also of homicide in Criminal Case No. 1815 is hereby
AFFIRMED. However, its judgment in Criminal Case No. 1834 for illegal
possession of a firearm and ammunition is REVERSED and said accusedappellant is hereby ACQUITTED of the offense charged therein on reasonable
doubt, with costs de oficio.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO L.
SANCHEZ, ARTEMIO AVERION, LANDRITO DING PERADILLAS and
LUIS CORCOLON, accused.
ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.
DECISION
PARDO, J.:
What is before this Court is an appeal from the decision of Regional Trial
Court, Branch 160, Pasig City,[1] finding accused Antonio L. Sanchez, Luis
Corcolon y Fadialan, Landrito Ding Peradillas and Artemio Averion guilty
beyond reasonable doubt of murder committed against Nelson Pealosa and
Rickson Pealosa, and sentencing each of the accused, as follows:
WHEREFORE, foregoing considered, the Court finds the accused Antonio
Sanchez, Landrito Ding Peradillas, Luis Corcolon, and Artemio
Averion GUILTY beyond reasonable doubt of the crime of MURDER
punishable under ART. 48 of the Revised Penal Code and hereby sentences
each of said accused to suffer the penalty of reclusion perpetua and to pay
jointly and severally, the heirs of the victims each the sum of P100,000.00
for the death of Nelson Pealosa and Rickson Pealosa, P50,000.00 as actual
damages and moral damages of P 50,000.00 and exemplary damages of
P30,000.00 and to pay the costs.
SO ORDERED.
City of Pasig.
December 27, 1996.
(s/t) MARIANO M. UMALI
Judge[2]

On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with

the Regional Trial Court, Calamba, Laguna, an information for double murder
against accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito Ding
Peradillas and Artemio Averion, the accusatory portion of which reads:
That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay
Curba, Municipality of Calauan, Province of Laguna, and within the
jurisdiction of the Honorable Court, the above-named accused conspiring,
confederating, and mutually aiding one another, with treachery and evident
premeditation, and with the use of a motor vehicle, at night time, all the
accused then being armed and committed in consideration of a price, reward
or promise and of superior strength, did then and there willfully, unlawfully,
and feloniously shoot with the use of automatic weapons inflicting multiple
gunshot wounds upon Nelson Pealosa and Rickson Pealosa which caused
their instantaneous deaths to the damage and prejudice of their heirs and
relatives.
CONTRARY TO LAW.[3]
On March 16, 1994, the case was raffled to Branch 34, Regional Trial
Court, Calamba, Laguna.[4] On March 17, 1994, the court ordered the arrest
of accused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas. On the
same date, Artemio Averion voluntarily surrendered to the court, which
ordered Averions transfer to the provincial jail, Sta. Cruz, Laguna.[5]
Thereafter, the trial court committed the accused to the custody of
proper authorities.[6]
Upon arraignment on April 10, 1995, all the accused pleaded not guilty.
The trial of the case thereby ensued. On December 27, 1996, the trial
court convicted all the accused of the complex crime of double murder, as
charged, the dispositive portion of which is set out in the opening paragraph
of this opinion.
[7]

On February 27, 1997, all the accused, except Ding Peradillas, were
present for the promulgation of the decision. Peradillas was a member of
the Philippine National Police and was under the custody of his superiors. The
trial court ordered his custodian to explain accuseds non-appearance. On
March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force
Habagat, denied any knowledge of the murder case against
Peradillas. Hence, Peradillas was not suspended from the service pending
trial. However, at the time that Peradillas was to be presented to the court
for the promulgation of the decision, he had disappeared and could not be
located by his custodian.[8] The promulgation of the decision as to him was in
absentia. Peradillas and Corcolon did not appeal from the decision.
Accused Antonio L. Sanchez and Artemio Averion filed their respective
appeals to this Court.

The facts are as follows:

On April 13, 1991, at around 10:00 in the morning, state witness Vivencio
Malabanan, team leader of a group of policemen, went to the Bishop
Compound in Calauan, Laguna, as part of the security force of mayor Antonio
L. Sanchez. After a while, accused Ding Peradillas arrived and asked for
mayor Sanchez. Peradillas informed mayor Sanchez that there would be a
birthday party that night at Dr. Virvilio Velecinas house in Lanot, Calauan,
Laguna, near the abode of Peradillas. Peradillas assured mayor Sanchez of
Nelson Pealosas presence thereat. Dr. Velecina was a political opponent of
mayor Sanchez for the mayoralty seat of Calauan, Laguna. Mayor Sanchez
then replied, Bahala na kayo mga anak. Ayusin lang ninyo ang trabaho, and
left the premises. Peradillas immediately called Corcolon and Averion and
relayed the message - Ayos na ang paguusap at humanap na lang ng
sasakyan. All the accused, including Malabanan, understood it as an order to
kill Nelson Pealosa, one of the political leaders of Dr. Velecina.[9]
Afterwards, Peradillas, Corcolon and Averion made arrangements to
acquire two-way radios and a vehicle for the operation. At around 2:30 in the
afternoon, Malabanan and the three accused went their separate ways and
agreed to meet at mayor Sanchez house at 6:00 in the evening. Malabanan
returned to his detachment area at Dayap, proceeded to the municipal hall,
then went home where Peradillas fetched him at 6:00 p.m. They proceeded
to mayor Sanchez house where they met Averion and Corcolon, with the car
and two-way radios.[10]
At around 7:00 in the evening, Malabanan and the three accused boarded
the car and went to Marpori Poultry Farm in Barangay Lanot, near Dr.
Velecinas house. Peradillas alighted and walked towards his own house, near
Dr. Velecinas house, to check whether Nelson Pealosa was at the party.
Thereafter, using the two-way radio, Peradillas informed the occupants of
the car that Nelson Pealosas jeep was leaving the Velecina
compound. Accused Averion immediately drove the car to the front of
Peradillas house and the latter hopped in the cars back seat. Corcolon sat in
the front seat beside him; witness Malabanan sat at the left side of the
backseat and Peradillas stayed at the right side of the back seat. The group
pursued Pealosas jeep. When the accuseds car was passing Victoria Farms,
located about 100 meters from Pealosa compound, Corcolon ordered Averion
to overtake Pealosas jeep. As the car overtook the jeep, Peradillas and
Corcolon fired at Pealosas jeep, using M-16 and baby armalite rifles,
executed in automatic firing mode. There were three bursts of gunfire. Based
on the sketch prepared by Malabanan, illustrating the relative position of
their car and Nelsons jeep at the time of the shooting, the assailants were at
the left side of the jeep.[11]
Rickson Pealosa, son of Nelson Pealosa, fell from the jeep. The jeep,
however, continued running in a zigzag position until it overturned in front of

Irais Farm. After the shooting, the accused proceeded to the house of mayor
Sanchez in Bai, Laguna, and reported to mayor Sanchez that Pealosa was
already dead.[12]
Together with his superior SPO4 Lanorio and photographer Romeo
Alcantara, policeman Daniel Escares went to the crime scene. There, he saw
the body of Nelson Pealosa slumped at the driver seat of the owner-type
jeep. They recovered the body of Rickson Pealosa slumped on a grassy place
not far from where they found Nelson Pealosa. After all the evidence and
photographs were taken, they brought the cadavers to Funeraria
Seerez. Daniel Escares submitted his investigation report of the incident to
the Provincial Director, Laguna PNP Command.[13]
Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan,
Laguna, conducted an autopsy on the bodies of Nelson and Rickson
Pealosa. Nelson Pealosa suffered massive intra-cranial hemorrhage and died
of cranial injury due to gunshot wounds. Rickson Pealosa died of massive
intra thoracic hemorrhage due to gunshot wounds.[14] Dr. Escueta, as a
defense witness, testified that based on the points of entrance and exit of
the wounds sustained by the Pealosas, it was not possible for the assailants
to be at the left side of the victims. [15] It contradicted Malabanans testimony
that they were at the left side of the victims when the shooting took
place. He further stated that based on the wounds inflicted on the victims,
the assailants were either in a sitting or squatting position when they shot
the victims.Some of the wounds indicated an upward trajectory of the
bullets.
On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the
ballistic tests conducted on the twelve (12) empty shells found at the crime
scene and the M-16 baby armalite surrendered by Corcolon. [16] She concluded
that the 12 empty shells were fired using three (3) different firearms, one of
which was the M-16 baby armalite.[17]
On August 18, 1995, Adelina Pealosa, common law wife of Nelson Pealosa
and mother of Rickson, testified that the whole family was in mourning and
could not eat after what happened. [18] She testified that the family incurred
P250,000.00 for funeral expenses, but failed to present the appropriate
receipts. She also stated that Nelson Pealosa was earning one (1) million
pesos per annum from his businesses.However, no income tax return or
other proofs were shown to substantiate the statement.[19]
The accused interposed the defense of alibi and denial.
Luis Corcolon stated that he spent the whole day of April 13, 1991, until
8:30 in the evening, supervising the poultry farm of his employers, Edgardo
Tanchico and Orlando Dizon. He denied that he was in the company of
Averion and Peradillas that day, and that he participated in the Pealosa
killings. He denied that he was ever assigned as a security guard of mayor
Sanchez. He claimed that the murder charges were concocted against them

for his refusal to testify against mayor Sanchez in the Gomez-Sarmenta

case. He alleged that he was maltreated, tortured, electrocuted and forced to
implicate mayor Sanchez in the Gomez-Sarmenta rape-slayings. He denied
that he owned the M-16 baby armalite used in killing the Pealosas.[20]
Detention prisoner George Medialdea corroborated Corcolons statement
that they were implicated in the Pealosa killing for their refusal to testify
against mayor Sanchez. He claimed that Malabanan confessed to him that
the latter had killed the Pealosas, but with the aid of CAFGU men and not
herein accused. He averred that Corcolon and Averion were wrongfully
implicated in the murder charges in deference to the wishes of the
investigators.[21] Zoilo Ama, another detention prisoner, claimed that
Malabanan confessed that he killed the Pealosas, but did not mention the
involvement of Corcolon, Averion and mayor Sanchez.[22]
Accused Artemio Averion, a godson of mayor Sanchez, denied that he
was involved in the Pealosa slayings. On April 13, 1991, he claimed that he
was in Lucena City, attending to his ailing father. He stayed there until April
15, 1991. He maintained that he was wrongfully implicated in the Pealosa
killings for his refusal to testify against mayor Sanchez regarding the GomezSarmenta rape-slayings.Malabanan asked for his forgiveness for falsely
incriminating them in the Pealosa case.[23]
Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of
Medialdea and Averion that they were tortured and forced to testify against
mayor Sanchez.[24]
Accused mayor Antonio L. Sanchez stated that on April 12, 1991, he went
to Anilao, Batangas, with his family. Around 1:00 in the afternoon of April 13,
1991, his family went to Tagaytay City and stayed overnight at Taal Vista
Lodge. Around 10:00 in the morning of April 14, 1991, they went home to
Calauan, Laguna. After reaching his abode in Calauan around 12:00 noon,
mayor Sanchez learned of the ambush-slayings of the Pealosas. He
immediately ordered an investigation of the case. He denied any
involvement in the killing of the victims.[25]
The trial court ruled that the prosecutions evidence clearly and
convincingly established the participation of the four (4) accused in killing
the Pealosas. Malabanan gave a sincere, frank and trustworthy account of
the circumstances surrounding the killing. Furthermore, the trial court
explained the discrepancies between Malabanans recollection of how the
victims were shot and Dr. Escuestas conclusion on what transpired based on
the injuries sustained by the victims.
The trial court stated that the doctors conclusion was based on the
assumption that the victims were in a sitting position inside the
jeep. However, it was possible that after the first burst of gunfire, the victims
were hit and fell. During the second burst of gunfire, the victims were lying
down or in a crouching position. Thus, the entry-exit points of the bullets did

not entirely correspond to Malabanans account, which was based on the

assumption that the victims did not change their positions during the
shooting incident.
The trial court ruled that the accused conspired in committing the
crime. Treachery was present, thereby qualifying the crime to murder. It
appreciated the aggravating circumstances of evident premeditation,
nighttime and use of motor vehicle.
The trial court considered the crime as a complex crime of double murder
punishable under Article 48 of the Revised Penal Code. However, at the time
of the commission of the offense on April 13, 1991, there was a constitutional
proscription on the imposition of the death penalty. Thus, each of the
accused was sentenced to reclusion perpetua, and to pay damages to the
heirs of the victims, as earlier quoted.
Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed
from the decision to the Supreme Court.
In their sole assignment of error, accused mayor Sanchez and Averion
contended that the trial court failed to recognize the material inconsistencies
between Malabanans testimony and the physical and scientific evidence
presented before it. They pointed out the following inconsistencies, to wit:
1. Malabanan testified that a) when they fired at the victims, they
were about the same elevation;[26] b) they used two (2) guns in
killing the vicitms;[27] c) they were at the left side of the victims
when the shooting incident occurred.[28] However, Dr. Escuetas
autopsy report revealed that: 1) the assailants were at a lower
elevation; 2) three (3) kinds of guns were used; and 3) based on
the injuries, assailants were on the right side of the victims.
2. Malabanans affidavit Exhibit V made on August 16, 1993, and
sworn to on August 17, 1993, bears two (2) signatures of the affiant
Malabanan and dated September 15, 1993. However, during crossexamination, Malabanan stated that he executed and signed the
affidavit on one occasion only, August 15, 1993.
3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings
that Malabanan only responded to the report that Pealosa had been
killed. He averred that contrary to Malabanans report, the latter
was not at the crime scene.
The two accused further averred that the material inconsistencies
between Malabanans testimony and the autopsy and laboratory findings and
conclusions seriously affect his credibility. They stressed that Malabanan has
sufficient motive to implicate mayor Sanchez and Corcolon in the Pealosa
killings due to threats of mayor Sanchez. They alleged that although
generally alibi is considered a weak defense, there are times when it is
worthy of credence, such as in this case.

The Solicitor General supports the trial courts ruling that the prosecution
adequately
established
the
guilt
of
the
accused
beyond
reasonable doubt. Malabanan positively identified the accused as the
perpetrators. He testified in a categorical, straightforward, spontaneous and
frank manner. The defense failed to satisfactorily show that Malabanan had
an ill motive to testify falsely against the accused. The alleged threat to
Malabanans life was not adequately established or sufficient for him to
falsely implicate the accused. As regards the supposed inconsistencies
between Malabanans account of the event vis vis the autopsy and ballistic
reports, the Solicitor General pointed out that both vehicles were running at
the time of the ambush. It was a matter of instinct for the victims to shift
positions as they were fired upon.Thus, contrary to Dr. Escuetas conclusion, it
was not impossible that the victims were hit from the right side of their
bodies, even if assailants were physically situated at the victims left
side. Hence, the apparent inconsistencies do not affect witness Malabanans
credibility.
After a careful scrutiny of the evidence on record, we agree with the trial
court that the prosecution adequately established accuseds guilt beyond
reasonable doubt.
Malabanan gave a detailed account of the planning, preparation and the
shooting incident. He narrated the participation of each of the accused, to
wit: (1) the order given by mayor Sanchez to execute Pealosa; (2) Averions
acquisition of a vehicle and two-way radios to be used for the operation and
in driving the car; (3) Peradillas act of relaying the information that Nelson
Pealosas jeep was leaving the Velecina compound; 4) the way they pursued
the victims; and 5) Corcolon and Peradillas act of firing and killing the
Pealosas.
The accused concentrated mainly on the seeming contradiction between
the narration of Malabanan on how the victims were shot, and the physicians
report on the location of injuries sustained by them.
However, as the Solicitor General stated, both vehicles were running at
the time of the shootout. It was unlikely that the victims drove in a straight
line parallel to that of the assailants. In fact, Malabanan testified that while
being fired at, Pealosas jeepney was running in zigzag manner. [29] It was a
natural reaction for Pealosa to evade the assailants as much as possible and
to try to dodge the bullets.Furthermore, the assailants fired the guns in
automatic firing mode. Thus, the bullets burst out in different directions
simultaneously. Hence, it was not impossible for the victims to be hit in
different parts of the body.
This Court has held time and again that any minor lapses in the
testimony of a witness tend to buttress, rather than weaken, his or her
credibility, since they show that he or she was neither coached nor were his

or her answers contrived. Witnesses are not expected to remember every

single detail of an incident with perfect or total recall.[30]
Furthermore, the fact that the trial court relied on the testimony of a
single witness does not affect the verdict of conviction. Criminals are
convicted, not on the number of witnesses against them, but on the
credibility of the testimony of even one witness, who is able to convince the
court of the guilt of the accused beyond a shadow of doubt. [31] What witness
can be more credible than someone who was in the planning, preparation
and execution of the crime.
The inconsistency between the affidavit and testimony of Malabanan is
too minor to affect his credibility. At any rate, we have held that affidavits are
generally subordinate in importance to open court declarations. Affidavits are
not complete reproductions of what the declarant has in mind because they
are generally prepared by the administering officer and the affiant simply
signs them after the same have been read to him.[32]
Accused-appellants raised that Malabanans delay in reporting the
involvement of the accused in the crime casts doubt on his
credibility. However, jurisprudence teaches us that delay in revealing the
identity of the perpetrators of a crime does not necessarily impair the
credibility of a witness, especially where such witness gives a sufficient
explanation for the delay.[33] It was natural for Malabanan to keep silent
during that time for, aside from being a co-conspirator, mayor Sanchez was a
powerful opponent.
Consequently, we find that accused-appellants defenses of alibi and
denial are bereft of merit. The defenses of alibi and denial are worthless in
the face of positive testimony of a witness showing the involvement of each
of the accused.
However, we disagree with the trial court that the accused committed a
single complex crime of double murder. Article 48 of the Revised Penal Code
provides that when a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means of committing the other,
the penalty for the more serious crime in its maximum period shall be
imposed.
The question is whether the act of shooting the victims using armalites in
automatic firing mode constitutes a single act and, thus, the felonies
resulting therefrom are considered as complex crimes. We rule in the
negative.
In People v. Vargas, Jr., we ruled that several shots from a Thompson submachine, in view of its special mechanism causing several deaths, although
caused by a single act of pressing the trigger, are considered several
acts. Although each burst of shots was caused by one single act of pressing
the trigger of the sub-machinegun, in view of its special mechanism the

person firing it has only to keep pressing the trigger of the sub-machinegun,
with his finger and it would fire continually. Hence, it is not the act of
pressing the trigger which should be considered as producing the several
felonies, but the number of bullets which actually produced them. [34] In the
instant case, Malabanan testified that he heard three bursts of gunfire from
the two armalites used by accused Corcolon and Peradillas. Thus, the
accused are criminally liable for as many offenses resulting from pressing the
trigger of the armalites. Therefore, accused are liable for two counts of
murder committed against the victims, Nelson and Rickson Pealosa, instead
of the complex crime of double murder.
Evidently, treachery was present in the execution of the crimes. The
attack against the victims, who were unarmed, was sudden, catching them
unaware and giving them no opportunity to defend themselves. [35] The
presence of treachery qualifies the crimes to murder.
Conspiracy is likewise adequately established. Notwithstanding the fact
that mayor Sanchez was not at the crime scene, we are convinced that he
was not only a co-conspirator, he was the mastermind of the ambush
slayings or the principal by inducement. [36] Malabanan testified that Nelson
Pealosa was killed upon order of mayor Sanchez. After the commission of the
crime, the assailants reported to mayor Sanchez. In conspiracy, it is not
necessary to show that all the conspirators actually hit and killed the
victim. What is important is that the participants performed specific acts with
such closeness and coordination as unmistakably to indicate a common
purpose or design in bringing about the death of the victim. Conspiracy
renders appellants liable as co-principals regardless of the extent and
character of their participation because in contemplation of law, the act of
one conspirator is the act of all.[37]
The trial court properly appreciated the existence of evident
premeditation. The prosecution clearly showed the presence of the following
requisites: a) the time when the accused determined to commit the crime; b)
an act manifestly indicating that the accused had clung to their
determination; and c) sufficient lapse of time between such determination
and execution to allow them to reflect upon the consequences of their acts.
[38]
As early as 10:00 in the morning, the accused had conspired to kill Nelson
Pealosa. They even looked for two-way radios and a vehicle to be used for
the operation. Indeed, sufficient time had lapsed to allow the accused to
reflect upon the consequences of their actions.
Accused specifically used a motor vehicle to execute the crime. Thus, the
aggravating circumstance of use of a motor vehicle must be appreciated.
However, we cannot appreciate the generic aggravating circumstance of
nighttime; while the crime was committed at night, the prosecution failed to
show that the malefactors specifically sought this circumstance to facilitate
the criminal design.[39] The fact that the crime happened at 7:00 in the

evening does not indicate that accused made use of the darkness to conceal
the crime and their identities.
At the time of the commission of the crime on April 13, 1991, the penalty
for murder under Article 248 of the Revised Penal Code was reclusion
temporal in its maximum period to death. Considering the presence of
aggravating circumstances, the accused should be sentenced to the death
penalty for each murder. However, in view of the constitutional proscription
of the death penalty at that time, each of the accused is sentenced to two
(2) penalties of reclusion perpetua.
Regarding the civil liability of the accused, the trial court ordered the
accused to pay the heirs of Nelson and Rickson Pealosa each, the sum of
P100,000.00, P50,000.00 as actual damages, P50,000.00 as moral damages,
and P30,000.00 as exemplary damages, and to pay the costs.
The P50,000.00 award as actual damages should be deemed as
indemnity for the untimely demise of the victims. We have held that only
expenses supported by receipts and which appear to have been actually
expended in connection with the death of the victims may be allowed. [40] No
proof was presented to sustain the award of actual damages.
Similarly, we can not award damages for loss of earning capacity. All that
was presented in evidence was the testimony of the common law wife,
Adelina Pealosa, that Nelson earned P1,000,000.00 a year. We have held that
for lost income due to death, there must be unbiased proof of the deceaseds
average income. Self-serving, hence unreliable statement, is not enough.[41]
Considering the attendance of aggravating circumstances, we sustain the
award of exemplary damages of P30,000.00, per victim, in accordance with
Article 2230 of the Civil Code.[42]
As regards moral damages, we affirm the P50,000.00 awarded to the
heirs of Rickson Pealosa. [43] His mother, Adelina Pealosa, testified to the
suffering caused by his death.[44] We also sustain the award of moral
damages to the heirs of Nelson Pealosa. His common law wife testified to the
mental anguish suffered by the family due to Nelsons death. [45] Under Article
2206 of the Civil Code, the spouse, legitimate and illegitimate descendants
and ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased. However, the common law
wife is not entitled to share in the award of moral damages.
WHEREFORE, the Court MODIFIES the decision of the Regional Trial
Court, Branch 160, Pasig City, and finds accused-appellants Antonio L.
Sanchez and Artemio Averion guilty beyond reasonable doubt of two (2)
counts of murder, and sentences each of them to suffer two (2) penalties
of reclusion perpetua, and each to pay jointly and severally the respective
heirs of victims Nelson and Rickson Pealosa, as follows:
1) Indemnity for death - P 50,000.00

2) Moral damages - 50,000.00

3) Exemplary damages - 30,000.00
Total P130,000.00
With costs.
SO ORDERED.
G.R. No. L-37396 April 30, 1979
MARCELINO
LONTOK,
JR., petitioner,
vs.
HON. ALFREDO GORGONIO, as Presiding Judge of the Municipal
Court of San Juan, Rizal, respondent.
Marcelino Lontok, Jr., in his own behalf.
Office of the Solicitor General for respondent.

AQUINO, J.:
This case is about the propriety of an information containing the charge of
"reckless imprudence resulting in damage to property and multiple physical
injuries".
On March 29, 1973, Marcelino Lontok, Jr. was charged with that delito
compuesto in the municipal court of San Juan, Rizal. In the information, it
was alleged that on November 14, 1972, while Lontok was recklessly driving
his Mercedes Benz car, he bumped a passenger jeep and caused damaged to
it in the sum of P780 and that the bumping also caused physical injuries to
three passengers who were incapacitated from performing their customary
labor for a period of less than ten days (Criminal Case No. 26116).
Lontok filed a motion to quash that part of the information wherein the
offense of lesiones leves through reckless imprudence is charged. He
contended that, because that offense prescribes in two months and it was
committed on November 14, 1972, the last day of the sixty-day period for
filing the charge as to that offense was January 14, 1973. He prayed that the
information be amended by excluding that light offense.

The fiscal opposed the motion to quash. The municipal court denied it.
Lontok pleaded not guilty upon arraignment. But instead of going to trial, he
filed in this Court on August 30, 1973 a petition wherein he prayed that the
amendment of the information be ordered by deleting the portion thereof
wherein the offense of slight physical injuries through reckless imprudence
discharged.
The Solicitor General in his comment agrees with Lontok's view that damage
to property through reckless imprudence cannot be complexed with a light
offense, that the light offense had already prescribed, and that two
informations should have been filed. He manifested that he would ask the
prosecuting fiscal to amend the information. Nevertheless, he concluded that
since Lontok did not raise any jurisdictional issue, his petition for certiorari
was not proper and, therefore, it should be dismissed.
The issue is whether Lontok, over his objection, can be tried by the municipal
court on an information charging the complex crime of damage to property
in the sum of p780 and lesiones leves through reckless imprudence.
We hold that he should be tried only for damage to property through reckless
imprudence, which, being punished by a maximum fine of P2,340, a
correctional penalty, is a less grave felony (Arts. 9, 25 and 26 and 365,
Revised Penal Code). As such, it cannot be complexed with the light offense
of lesiones leves through reckless imprudence which, as correctly contended
by Lontok, had already prescribed since that crime prescribes in sixty days.
There is a complex crime when a single act constitutes two or more grave or
less grave felonies or when a grave or less grave offense is a means of
committing another grave or less grave offense.
As originally enacted, article 48 of the Revised Penal Code provided that the
crime is complex when a single act constitutes two or more crimes, or when
an offense is a necessary means of committing the other. Commonwealth Act
No. 4000 amended article 48 by substituting the words "grave or less grave
felonies" for the word "crimes" in the original version, thus eliminating a light
felony as a component part of a complex crime.
Parenthetically, it may be noted in passing that the concept of complex crime
was applied in criminal negligence or quasi offenses (People vs. Lara, 75 Phil.
786 and People vs. Agito, 103 Phil. 526, regarding multiple homicide through
reckless imprudence; People vs. Rodis, 105 Phil. 1294, regarding

malversation through falsification by reckless negligence; Samson vs. Court

of Appeals, 103 Phil. 277, regarding estafa through falsification by reckless
negligence; Angeles vs. Jose, 96 Phil. 151; Lapuz vs. Court of Appeals, 94
Phil, 710 and People vs. Vendiola, 115 Phil. 122, regarding homicide, grave
physical injuries and grave damage to property, all through reckless
imprudence.).
In all the foregoing cases, it is assumed that reckless imprudence is not a
crime in itself but is simply a way of committing a crime and it merely
determines a lower degree of criminal liability. Negligence becomes a
punishable act when it results in a crime (People vs. Faller 67 Phil. 529).
Applying article 48, it follows that if one offense is light. there is no complex
crime. The resulting offenses may be treated as a separate or the light felony
may be absorbed by the grave felony. Thus, the light felonies of damage to
property and slight physical injuries, both resulting from a single act of
imprudence, do not constitute a complex crime. They cannot be charged in
one information. They are separate offenses subject to distinct penalties
(People vs. Turla, 50 Phil. 1001; See People vs. Estipona, 70 Phil. 513).
Where the single act of imprudence resulted in double less serious physical
injuries, damage to property amounting to P10,000 and slight physical
injuries, a chief of police did not err in filing a separate complaint for the
slight physical injuries and another complaint for the lesiones menos
graves and damage to property (Arcaya vs. Teleron, L-37446, May 31, 1974,
5 7 SCRA 363, 365).
A chief of police likewise did not err in filing separate complaints for slight
physical injuries and grave oral defamation committed on the same occasion
by one person against the same victim (Manduriao vs. Habana, L- 28069,
August 18, 1977,78 SCRA 241).
Where a complaint for slight physical injuries and grave threats was filed in
the justice of the peace court under the old Judiciary Law, the said court had
jurisdiction to try the slight physical injuries case and could only undertake
the preliminary investigation of the latter offense (People vs. Linatoc, 74 Phil.
586. See People vs. Acierto 57 Phil. 614 and People vs. Benitez, 73 Phil. 671).
The case of Angeles vs. Jose, 96 Phil. 151, cited by investigating fiscal, is
different from the instant case because in that case the negligent act
resulted in the offenses of lesiones menos graves and damage to property

which were both less grave felonies and which, therefore, constituted a
complex crime
In the instant case, following the ruling in the Turla case, the offense
of lesiones leves through reckless imprudence should have been charged in a
separate information. And since, as a light offense, it prescribes in two
months, Lontok's criminal liability therefor was already extinguished (Arts.
89151, 90 and 91, Revised Penal Code in relation to sec. 2[e] and [f] Rule
117, Rules of Court). The trial court committed a grave abuse of discretion in
not sustaining Lontok's motion to quash that part of the information charging
him with that light offense.
WHEREFORE, the lower court's orders of May 21 and July 12, 1973 are set
aside. It is ordered to try Lontok only for damage to property through
reckless imprudence. The information need not be amended, it being
understood that Lontok has no more culpability for the offense of slight
physical injuries through reckless imprudence charged therein. No costs.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDO
TALO, accused-appellant.
DECISION
MENDOZA, J.:
This case is here on appeal from the decision [1] of the Regional Trial Court,
Branch 15, Ozamis City, finding accused-appellant Erlindo Talo guilty of
forcible abduction with rape and sentencing him to death and to pay
complainant Doris Saguindang the amount of P30,000.00 as moral damages
and the costs of the suit.
The information against accused-appellant recited
That on or about the 12th day of May, 1995, at about 2:00 oclock dawn, in
barangay Gata Daku, municipality of Clarin, province of Misamis Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused ERLINDO TALO, entered the dwelling by destroying some portion of
the toilet of the offended party, armed with a bolo and hunting knife, and by
means of force, violence, intimidation and threats, did then and there, with

lewd and unchaste designs, willfully, unlawfully and feloniously, take and
carry away MISS DORIS SAGUINDANG against her will from the house of her
parents, and upon reaching the ricefield, by means of force, violence,
intimidation and threats, did then and there willfully, unlawfully and
feloniously had carnal knowledge of her against her will.[2]
The evidence presented by the prosecution shows the following:
At around 9 oclock in the evening of May 11, 1995, complainant Doris
Saguindang retired for the night in her familys house in Gata Daku, Clarin,
Misamis Occidental. At about 2 oclock in the morning of the following day,
she was awakened by the presence of an intruder in her room, who identified
himself as a rebel and claimed that his commander wanted to see
complainant. The man poked a knife at her and covered her mouth to
prevent her from making an outcry. He was wearing briefs, her fathers
overseas cap, and her sisters shirt. Complainant was led out of the house
through the back door. Outside, the man twice called out, Commander, we
are here, but no one responded. The man dragged Doris towards the ricefield
about 800 meters from their house and there, at knife point, forced Doris to
have sexual intercourse with him. Doris tried to fight back but the man was
too strong for her. Doris noticed that, aside from a knife, the man had a bolo
with him.[3]
As the man rolled to his side after consummating the sexual act, Doris
immediately picked her clothes and ran naked as fast as she could towards
the nearby house of her uncle, Margarito Saguindang, who later brought her
home. Complainant was then accompanied by her parents to the Philippine
National Police (PNP) station where she reported the incident. Complainant
described to SPO2 Jesus Macala her attacker. Seven suspects were presented
to her but none was her assailant. For this reason, the incident was entered
in the police blotter of the PNP, but no complaint was filed in court.[4]
Complainant and her mother also sought the help of their pastor,
Ponciano Ayop, Sr., who arranged for the medical examination of
complainant by Dr. Daniel Medina, municipal health officer of Clarin. [5] Dr.
Medina conducted the examination at around 2 oclock that afternoon and
later issued the following report:
PHYSICAL FINDINGS:

- Vagina slightly hyperemic with whitish muco[u]s fluid at base of the

vagina[.] [N]o more hymen found at the vagina.
- 3 cm. l[i]near abrasion at the right lower thigh 2 in numbers.
- 2 cm. hematoma at right postero lateral aspect of the chest
posterior axillary line level 5th rib.
- 1.5 cm. hematoma at left posterior chest at med scapular line level
6th rib.
- 1 cm curvel[i]n[e]ar abrasion at right neck above scapula.
....
Conclusions:
1). The above described physical injuries are found in the body of the
subject, the age of which is compatible to the alleged date of
infliction.
....
Remarks:
5 slides negative for sperm determination . . . .[6]
Dr. Medina testified that the perforation of complainants hymen could
have been caused by sexual intercourse. As for the mucous found in her
genitalia, he said that although it did not contain any spermatozoa, it was a
sign of recent sexual contact. He stated that the absence of sperm in
complainants genitalia could be due to the fact that she took a bath after the
incident.[7]
With regard to his external examination of complainant, Dr. Medina
said that the injury in her neck was caused by a fingernail and is consistent
with complainants claim that she was choked. The abrasion on her right
thigh, on the other hand, was caused by a rough but not hard object, while
the hematomas on it and on her chest were caused by a hard object.[8]
On cross-examination, Dr. Medina admitted that, although forcible sexual
intercourse could produce lacerations in the vaginal orifice, he did not find

any in complainant. With regard to the perforation of complainants hymen,

he stated that the same could be caused by other factors such as riding a
bicycle, horse, or carabao, and that the perforation could have occurred
earlier than May 12, 1995.[9]
Pastor Ayop and his family took complainant to Bukidnon for a vacation
because she was having nightmares, coming back to Clarin after three
weeks, in May 1995.[10]
Then, at around seven oclock in the morning of May 27, 1995, while Doris
and her friends were walking along the road in Tinaclaan, a neighboring
barangay of Gata Daku, she saw accused-appellant in a nearby
ricefield, distributing seedlings to farm workers. Because accused-appellant
was not facing her, complainant could not clearly make out his features but
she could see that his body build resembled that of her attacker. She asked
one of her companions, a certain Enan Undag, accused-appellants name.[11]
A week later, on June 3, 1995, at around 5 oclock in the afternoon, while
complainant and a friend, Grace Endab, were walking along the road in
Tinangay Sur, she again saw accused-appellant coming from the opposite
direction. When accused-appellant saw them, he hurriedly walked past
them. Doris, thoroughly shaken, told Endab, who knew of the rape, that the
man they had just encountered was the one who raped her. The latter
corroborated complainant on this matter.[12]
After consulting Ayop and her parents, Doris, on the following Monday,
June 5, 1995, filed a complaint for rape against accused-appellant. [13] She
later amended her complaint to charge accused-appellant with forcible
abduction with rape.
Doris positively identified accused-appellant in court as the man who,
on May 12, 1995, abducted and later raped her. She said she saw his face
when she was awakened in her room and in the ricefield where the moon
was bright.[14]
Upon cross-examination by the defense, complainant stated that,
although she was born in Gata Daku, she did not know everybody in the
barangay since she stayed in Iligan City for three years to study. Before May
12, 1995, she admitted she had seen accused-appellant once but she did not
know his name. She added that when she was in high school in Clarin, she
had heard of a peeping tom named Erlindo Talo.[15]

Accused-appellant, 50, denied the charge against him. He testified that

he was a resident of Barangay Gata Daku and that he managed a farm in the
neighboring barangay Tinaclaan.He further stated that until he met
complainant in court, he had never known her.[16]
As to his whereabouts at the time of the incident, accused-appellant said
that at 9 oclock in the evening of May 11, 1995, he was in the house of Otelo
Londera in Barangay Kinangay Sur, playing mahjong. Aside from Londera,
the other mahjong players were Laureano Basaya and Buena Narbay. He said
that except for a few breaks, they played mahjong until 5 oclock in the
morning of May 12, 1995. An hour later, accused-appellant allegedly went
home to Barangay Gata Daku. Afterwards, at around 9:30 in the morning, he
went to Barangay Tinaclaan, to the house of Leonardo Fuentes, whose son,
Celso, wanted him to procure a piglet. It was there that he allegedly heard
that someone had been raped in Gata Daku.[17]
Although he had a farm in Barangay Tinaclaan, accused-appellant denied
that he went there at 7 oclock in the morning of May 27, 1995, when
complainant said she saw him. Accused-appellant said that at that time, he
was in Barangay Kinangay Sur with Celso Fuentes buying a piglet because
the latters son was celebrating his birthday. Accused-appellant said he went
to his farm in Tinaclaan only at around 11 oclock to pay his workers.[18]
Accused-appellant likewise denied that he was in Kinangay Sur at around
5 oclock in the afternoon of June 3, 1995, because at that time he was
allegedly in his farm in Barangay Tinaclaan gathering shells, locally
called kuhol.[19]
On cross-examination, accused-appellant said that Londeras house,
where he was allegedly playing mahjong in the morning of May 12, 1995, is
about 500 meters from Gata Daku. He admitted he used to deliver rice to
complainants house.[20]
Corroborating accused-appellants alibi were his three alleged mahjong
playmates, Otelo Londera, Buena Narbay, and Laureano Basaya. Londera
stated that the distance between his house and Barangay Gata Daku could
be negotiated in 10 minutes by foot. Narbay, for her part, said she cannot
remember whether she played mahjong in Londeras house on the dates in
question.[21]

Other witnesses were presented by the defense, namely, Celso Fuentes,

Angel Saldaa, and Flaviano Narbay, who corroborated accused-appellants
testimony that he was not in his farm in Barangay Tinaclaan at 7 oclock in
the morning of May 27, 1995. On cross-examination, Narbay, who had
testified that he was in accused-appellants farm on the date and time in
question and that the accused-appellant did not arrive therein until about 11
oclock, admitted that he did not know the year when the events he testified
to took place and that the date May 27 was only supplied to him by the
defense counsel.[22]
The defense likewise presented the then incumbent barangay chairman
of Gata Daku, Joven Japay. He said that at around 4:00 in the morning of May
12, 1995, Cesar and Margarito Saguindang, complainants father and uncle
respectively, went to his house to report that complainant had been raped at
around 2 oclock that morning. Thereafter, the three of them went to the
house of Cesar Saguindang where he and SPO2 Macala questioned
complainant. She allegedly described her attacker to be around 30 years old,
curly haired, bearded, and with a big body build. On the basis of this alleged
description, they did not include accused-appellant among the possible
suspects because, although the latter matches Doris description as to body
size and height, he is not curly haired nor bearded.[23]
The prosecution recalled complainant to rebut Japays testimony. She
denied having told Japay that her attacker was curly haired (kulot) because
what she said was that his hair was close-cropped or kopkop. She also
denied having said that her attacker was bearded, because although she
used the local term bangason, which, loosely translated, means bearded,
what she really meant was that the man had newly-grown facial hair.[24]
The prosecution also presented two other witnesses to refute accusedappellants testimony that he had never been to complainants house and that
there was an all-night mahjong session on May 11, 1995 in the house of
Otelo Londera in Kinangay Sur.
Cesar Saguindang, father of complainant, testified that for three years,
accused-appellant regularly delivered rice to their house in Gata Daku. [25] On
the other hand, Antonina Mutia, whose house in Barangay Kinangay Sur is
about 200 meters from that of Otelo Londera, testified that at around 10
oclock in the evening of May 11, 1995, she passed by the Londera residence
on her way home from Barangay Tinaclaan. She noticed that the house was

very quiet and, although the adjoining nipa hut where the mahjong sessions
were usually played was lighted, there was no mahjong game being played
therein. Before 11 oclock that night, she again passed by Londeras house on
her way back to Barangay Tinaclaan to look for her husband who had gone
there for the barangay fiesta. She again noticed that Londeras house was
quiet.[26]
As sur-rebuttal to Mutias testimony, the defense presented Catalina
Londera, wife of Otelo Londera, who said that at around 8 oclock in the
evening of May 11, 1995, she met Mutia and her husband in the house of a
certain Tagaloguin in Barangay Tinaclaan. The three allegedly went back to
Barangay Kinangay Sur on board the Mutia spouses truck. After arriving
home at around 9 oclock, her husband, Laureano Basaya, Buena Narbay, and
accused-appellant allegedly started playing mahjong.[27]
The case was thereafter submitted for decision. On April 26, 1996, the
trial court rendered its decision, finding accused-appellant guilty of forcible
abduction with rape. The dispositive portion of its decision reads:
WHEREFORE, this Court renders judgment finding accused guilty beyond
reasonable doubt of forcible abduction with rape aggravated by dwelling and
nocturnity and qualified by use of a deadly weapon, sentencing him to
DEATH and ordering him to indemnify the complainant P30,000.00 as moral
damages. With cost.[28]
Hence this appeal.
First. Accused-appellant contends that he and complainant had a
previous understanding and that their sexual intercourse was
consensual. This allegedly explains why (1) there was no commotion when
he and complainant went out of the latters house as shown by the fact that
not a member of the household was awakened when he dragged her out of
her parents house; and (2) when he removed her pajamas and underwear, or
when he undressed, she did not push him which would then have allegedly
allowed her to escape.[29]
This contention has no merit.
Accused-appellant never claimed that he and complainant had any
relationship. In fact, he claimed he had never met her before. Thus accusedappellant testified:

Q Do you know the private offended party of this case, Doris Saguindang?
A I dont know her, sir, I have never met her, only here in Court.
Q Do you still remember that time when did you first see or meet her in
Court?
A The fourth time I attended the hearing, sir.
....
Q . . . [D]o you know the residence of the parents of Doris Saguindang?
A I dont know, sir.
Q You have not gone there ever since?
A Never, sir.[30]
Indeed, apart from his bare assertion that he and complainant were
lovers, accused-appellant has shown no other evidence of such relationship,
such as love letters, photographs, or other tokens of endearment. On the
contrary, complainant stoutly maintained that she had never known accusedappellant before and that the latter, at knife point, forced her to go with him
and molested her in a ricefield. Complainants testimony must be quoted to
appreciate her claim:
Q Now, as you were awaken[ed] . . . by the accused, what happened?
A He choked me up.
Q What did he say?
A He ordered me to stand up because he has some questions to ask.
Q Now, what was your reaction?
A I was nervous and shocked.
....

Q Now, after the accused woke you up, choked you and commanded you
to stand up, what happened?
A He covered my mouth.
Q Why did he cover your mouth?
A So that I could not shout.
Q Why, did you try to shout for help?
A I was trying to shout but no voice will come out.
Q So, what happened afterwards?
A He forced me to go outside.
Q How did he force you to go outside?
A He covered my mouth and the other hand has knife pointing near my
chest.
....
Q: Despite of the fact that you were led by that man outside you did not
resist or make any noise in order your parents to be awaken?
A I tried my best but he was so strong.
Q You mean he has big muscles?
A Yes, sir. Strong arms.[31]
Accused-appellant makes much of the fact that he was able to take
complainant out of her parents house without rousing the household from
their sleep. That was because complainant was alone in her room, far from
where the other members of her family were sleeping. Her parents, her twin
siblings, and her nephew were the other people in the house when accusedappellant broke in and abducted complainant. Her parents slept in a separate
room furthest from her room and, while her twin siblings and nephew slept in
the room adjoining hers, their rooms were separated by a concrete wall with
an opening near the roof. Accused-appellant prevented complainant from

making an outcry by covering her mouth and poking a knife at her. She was
resisting but she was overpowered. After all, what could an 19-year old girl
do to resist a 50-year old man? As complainant testified:
Q By that time when you were led to that dry ricefield he was no longer
dragging you, am I correct?
A Still he drag me and he was holding me.
Q He was holding both of your hands?
A He was walking ahead of me and kept on pulling me.
(Witness keep on crying since the beginning of her testimony)
Q If you have resisted at that time when you were brought to the dry land
or ricefield you could have escape him away from the hold of that
man?
A How can I escape from him he was holding me so tightly. It was so
painful as if my arm will be broken.
Q But he did not twist your arms?
A I could not remember but that my shoulder was sprained.
....
PROS. MEDINA:
Q Now, when you reached to that ricefield which was harvested together
with the accused Erlindo Talo, forcing you to go there, threatening you,
pointing a knife, did you try to escape?
A Yes, sir.
Q How did you do it?
(While answering, witness was crying)
A I was trying to fight but he was very strong.

....
Q Upon reaching that place, what happened, upon reaching there, did you
try to stop him?
A Yes, sir.
Q How did you do it?
(Witness burst into tears continuously)
A I kicked him because he was trying to remove my pajama.
Q And what happened?
A He successfully removed my pajama.
Q How about your panty?
A Including my panty.
Q How about your blouse?
A After removing my panty, he was also removing my blouse.
Q What did you do?
A I was trying to grapple the knife because he kept on threatening to stop
me.
Q Afterwards, what happened?
....
A He pushed me to lie down on the ground.
Q Did he remove your clothes when you were standing up or when you
were already pushed down?
A While I was still standing up, he removed my pants, when I was lying
down, he removed my blouse.

Q All the while, when he was removing your pants, panty and blouse, what
did you do?
A I slapped him.
Q You mean to say, you fought him?
A Yes, sir.
Q Now, when he successfully removed all your clothes and you were
already down, what did he do next?
A He lowered his brief.
Q And what did he do to you?
A Then, he raped me.
....
Q You mean to say, he placed his penis inside your vagina?
A Yes, sir.
Q Did his penis penetrate your vagina?
A Yes, sir.
Q You mean to say, his penis stayed inside your vagina?
A Yes, sir.
....
Q At that time, did you fight him?
A Yes, sir.
Q How did you fight him?
A I kicked him.

Q When you kicked him, what did he do?

A Again, he attempted to stop me.[32]
It is settled that a rape victim is not required to resist her attacker unto
death.[33] Force, as an element of rape, need not be irresistible; it need only
be present, and so long as it brings about the desired result, all
considerations of whether it was more or less irresistible is beside the point.
[34]
Indeed, physical resistance need not be established in rape when, as in
this case, intimidation was exercised upon the victim and she submitted to
the rapists lust because of fear for her life or for her personal safety.[35]
The findings of the medical examination conducted by Dr. Medina a day
after the incident confirm complainants claim that she had been forced to
have sexual intercourse by accused-appellant. Dr. Medina found abrasions on
her neck and right thigh as well as hematomas on her chest, in addition to
the complete perforation of her hymen. These clearly establish that accusedappellant employed force and intimidation to make complainant submit to
him.
Finally, complainants conduct after she had been abused negates any
probability that she and accused-appellant had consented sexual
intercourse. After accused-appellant had finished ravishing her, she ran away
naked. She fled to the house of her uncle to whom she reported what had
happened to her. This is not the natural reaction of one who had engaged in
consensual sex. It has been observed that the conduct of a woman following
the alleged assault is of utmost importance as it tends to establish the truth
or falsity of her claim.[36]
Second. In a complete turnabout from his theory that he and
complainant were lovers, accused-appellant contends that complainants
failure to file the criminal complaint renders her claim of abduction with rape
suspect.[37]
This contention has no merit, either. Complainant filed this case less than
three weeks after the incident. The delay was due to the fact that accusedappellants identity was not ascertained until June 3, 1995 when complainant
came face to face with accused-appellant and learned that his name was
Erlindo Talo.

While it is true that Cesar Saguindang, complainants father, testified that

accused-appellant had been delivering rice to their house for a period of
three years, there is no evidence to show that complainant knew accusedappellant. Accused-appellant himself testified that he stayed in Cebu City for
sometime to study college, went back to Data Daku, Clarin, Misamis
Occidental in 1982, and decided to work on the farm. It was probably then
that he delivered rice for the barangay captain of Gata Daku, Japay. At that
time, complainant was only eight years old. Furthermore, complainant
studied at the Clarin National High School in the poblacion of Clarin and went
to Iligan City for her college education. It is probable, therefore, she really did
not know accused-appellant.
Moreover, the delay in the identification of accused-appellant was due
mainly to the failure of the Gata Daku police, specifically of SPO2 Jesus
Macala, to include accused-appellant in the lineup of suspects presented to
complainant on May 12, 1995. Macala admitted that complainants
description of her attacker in fact matched that of accused-appellant, but he
did not include the latter in the lineup because he thought that accusedappellant, whom he admitted was a childhood friend, was innocent.[38]
Accused-appellant points out the alleged inconsistencies in the testimony
of complainant as to his age, type of hair, and whether he is bearded or
not. As complainant explained, however, she did not really say that accusedappellant was curly haired or that he had a beard. She testified:
Q Miss Doris Saguindang, the Barangay Captain of Gata Daku, Joven Japay,
have testified before this Honorable Court that you specifically
described to him the person responsible [for] raping you in the dawn of
May 12, 1995, and he said you specifically described . . . him to be
curly hair[ed], and that his face was full of beard, what can you say to
that statement?
A Thats not true.
Q Why do you say thats [a] lie?
A Because what I told . . . the Barangay Captain is that, the hair of the
rapist is short to the scalp. In fact, the Barangay Captain asked, was it
curly hair, I said no, his hair is short and his head is somewhat bald
because at that time he was wearing my fathers hat.

Q What about the beard?

A I did not say beard. I did not mention that the face of the man is full of
beard because when we say bangason or bearded he has full of
beard. What I told . . . the Barangay Captain [was] that he has a beard
because I have touched the face of the man, not exactly that he was
bearded.
Q Did you mention to the Barrio Captain that the person responsible in
raping you that you were able to touch his face, his mustach[e]?
A I did not tell him that he has mustach[e], I only told him a few beard
newly grown in his face.
Q Did you also mention . . . the age . . . of the person responsible in raping
you?
A No, sir. I did not mention to him the age, what I described to him only
that the man was similar to the age of my father.[39]
We find complainants testimony to be credible. As earlier stated, her
story is corroborated by the findings of the medical examination. On the
other hand, the defense has not shown any ill motive on the part of
complainant to falsely implicate accused-appellant in a very serious
charge. As we have said in a number of cases, no woman would concoct a
story of defloration, allow an examination of her private parts and expose
herself to the stigma and humiliation of a public trial if she is not motivated
by a desire to seek justice against the one who had defiled her.[40]
Third. Accused-appellants defense is that on May 12, 1995, he was in
the house of Otelo Londera in Barangay Kinangay Sur. However, Londera
himself said that Barangay Gata Daku could be reached in 10 minutes by
foot from his house. For the defense of alibi to prosper, it must be shown not
only that accused-appellant was somewhere else at the time the crime was
committed but also that it was physically impossible for him to have been at
the scene of the crime at the time it was committed.[41]
The same is true with regard to accused-appellants claim that on May 27,
1995 and June 3, 1995, when complainant said she saw him after the
incident, he was in some other place and could not possibly have been seen
by her. Defense witness Narbay, who was supposed to corroborate accused-

appellants testimony that he was not in his farm in Barangay Tinaclaan at

around 7 oclock in the morning of May 27, 1995, admitted on crossexamination that he did not know the year when the events he testified to
took place and that the date May 27 was just given to him by the counsel for
the defense. On the other hand, accused-appellants testimony that he was in
his farm in Barangay Tinaclaan and not in Barangay Kinangay Sur at about 5
oclock in the afternoon of June 3, 1995 is not only uncorroborated but also
self-serving. It cannot prevail over the testimony of complainant which was
corroborated by Grace Endab.
Fourth. The trial court correctly found accused-appellant guilty of the
complex crime of forcible abduction with rape. As provided in Arts. 342 and
335, in relation to Art. 48, of the Revised Penal Code, the elements of this
crime are: (1) that the person abducted is any woman, regardless of her age,
civil status or reputation; (2) that she is taken against her will; (3) that the
abduction is with lewd design; and (4) that the abducted woman is raped
under any of the circumstance provided in Art. 335. [42] The evidence shows
that, at knifepoint, accused-appellant forcibly took complainant from her
parents house and, in a ricefield about 800 meters away, forced her to have
sexual intercourse with him.
In the event of conviction in cases of complex crimes, the penalty for the
most serious crime should be imposed, the same to be applied in its
maximum period.[43] Forcible abduction is punishable by reclusion temporal,
[44]
while rape is punishable by reclusion perpetua, unless it is committed
with the use of deadly weapon, in which case the penalty is reclusion
perpetua to death.[45] Thus, in this case, it is the penalty for rape which
should be imposed, the same to be applied in its maximum period. However,
the use of deadly weapon, being a qualifying circumstance, must be alleged
in the information, otherwise it should be treated only as a generic
aggravating circumstance and the lower penalty (reclusion perpetua) should
be imposed.[46]
In the case at bar, the information alleged that armed with a bolo and
hunting knife, and by means of force, violence, intimidation and threats,
accused-appellant, did then and there . . . with lewd and unchaste
designs . . . take and carry away complainant and that, upon reaching the
ricefield, by means of force, violence, intimidation and threats, he had carnal
knowledge of her. The allegation of the use of deadly weapon thus refers not
to the rape but to the crime of forcible abduction. We have affirmed

convictions for forcible abduction with rape qualified by the use of deadly
weapon in cases where the use of deadly weapon was alleged in the
information with respect to the crime of forcible abduction, [47] or with respect
to the complex crime of forcible abduction and rape, [48] or to the portion
referring to the crime of rape.[49] Accordingly, to justify the imposition of the
death penalty in this case, the use of deadly weapon should be alleged with
respect to the rape or with respect to both the forcible abduction and
rape. Since, in this case, this qualifying circumstance was alleged only with
respect to the commission of the forcible abduction, it cannot be taken to
qualify the crime of rape. The use of a deadly weapon can be appreciated
only as a generic aggravating circumstance.
The trial court correctly appreciated other generic aggravating
circumstances, namely, dwelling and nighttime. Dwelling was correctly taken
into account as an aggravating circumstance as the evidence shows that
complainant was forcibly taken from the house of her parents. Such was the
ruling in People v. Lacanieta,[50] where, similar to the case at bar, the
complainant was forcibly taken from her house, brought to a nearby
barangay, and then raped by the accused.
The aggravating circumstance of nighttime was also correctly held to be
present. Accused-appellant sought the cover of darkness to facilitate the
commission of the crime. In People v. Grefiel,[51] it was held that forcible
abduction with rape, committed at 2 oclock in the morning, was attended by
the aggravating circumstance of nighttime.
The crime was likewise attended by the aggravating circumstance of
unlawful entry. The barangay chairman of Gata Daku, Joven Japay, testified
that when he went to the house of the victim the day after the rape incident,
he noticed that a baluster in the ceiling at the rear part of the house had
been forcibly removed and that there was a ladder propped nearby. [52] There
was thus entry to complainants house through an opening which was one not
intended for that purpose.
The foregoing notwithstanding, the penalty to be imposed on accusedappellant is reclusion perpetua. Under Art. 63, a single indivisible penalty
should be imposed regardless of any mitigating or aggravating circumstance
which may have attended the commission of the deed.
The damages awarded by the trial court should be modified. In
accordance with recent rulings of this Court, [53] complainant Doris

Saguindang must be paid P50,000.00 as civil indemnity, P50,000.00 as moral

damages, and the additional amount of P25,000.00, as exemplary damages,
in view of the attendance of the aggravating circumstances, pursuant to Art.
2229 of the Civil Code.[54]
WHEREFORE, the decision of the Regional Trial Court, Branch 15, Ozamis
City, is AFFIRMED with the MODIFICATION that accused-appellant is ordered
to pay complainant Doris Saguindang the amounts of P50,000.00, as civil
indemnity, P50,000.00, as moral damages, and P25,000.00, as exemplary
damages.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY SABREDO
y GARBO, accused-appellant.
DECISION
QUISUMBING, J.:
For automatic review is the judgment of the Regional Trial Court of Masbate,
Masbate, Branch 44, dated May 13, 1996, in Criminal Case No. 7454,
imposing the penalty of death on accused-appellant, Jimmy Sabredo y Garbo,
for the complex crime of abduction with rape of complainant Judeliza
Sabredo. Edpsc
The facts of this case on record are as follows:
Appellant is the uncle of complainant. He is the younger brother of her
father. In 1993, Jimmy arrived from Masbate to reside with Judeliza's family in
Cagtagong, Caguyong, Borbon, Cebu, where he stayed with them for more
than a year.
On June 27, 1994, Judeliza went to the well near their house, to take a bath.
There, Jimmy grabbed and forcibly dragged her at knife's point, to the
highway where he made her board a truck for Bogo, Cebu. Impelled by fear,
she complied, since Jimmy continuously poked a knife under cover of his
jacket at her. From Bogo, he took her by passenger motorboat to Placer,
Masbate. Thence he brought her to Estampar, Cataingan, Masbate, where
they stayed at the house of Conchita Tipnit. Conchita was Jimmy's sister and
Judeliza's aunt, though aunt and niece did not know each other. In Estampar,

Judeliza tried to escape but was caught by Jimmy, who severely mauled her
until she lost consciousness. Scedp
Suspecting that Conchita would report the matter to the police, Jimmy took
Judeliza by jeepney to Cagba, Tugbo, Masbate. They stayed with Roberto
Sabredo, his nephew and Judeliza's first cousin. The two cousins, however,
had not met before and Jimmy was able to pass her off as his wife. They
stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding
Judeliza. Calrspped
On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually
assaulted Judeliza. He covered her mouth to prevent her from shouting. After
satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and
cruelly pinched it. Judeliza screamed and cried for help. Their host, Roberto,
was awakened but could not do anything to assist her. Later, Jimmy struck
Judeliza with a piece of wood, rendering her unconscious. Much later, he
brought her to the house of his sister, Nilda Polloso, also at Cagba.
Nilda noticed the victim's weak and wan condition and offered her medicine.
Catching Jimmy in the act of boiling water, she asked what it was for and was
told that it would be poured over Judeliza to finish her off. Nilda, however,
stopped him. On July 8, 1994, Judeliza recovered sufficiently from her
injuries. Nilda brought her to the police where Judeliza reported her ordeal.
That same day, while Jimmy was sleeping, Nilda managed to take away from
him the blade, made of stainless steel, which he had used in the rape of
Judeliza. After the initial police investigation, Judeliza was brought to Masbate
Provincial Hospital, where she was confined for four days. The medico-legal
officer, Dr. Artemio Capellan, examined her. Sccalr
On August 11, 1994, the Provincial Prosecutor of Masbate filed an
information for forcible abduction with rape, which alleged:
"That on or about June 27, 1994, and days thereafter from sitio
Caglagang, barangay Caguyong, Burbon, Cebu the said accused
with force and intimidation and against the consent of
complainant Judeliza E. Sabredo abduct the latter to sitio Cagba,
barangay Tugbo, Municipality of Masbate, Province of Masbate,
Philippines, within the jurisdiction of this court and on (sic) the
house of one auntie Nilda, accused with a bolo did then and
there, willfully, unlawfully and feloniously have sexual

intercourse of (sic) said Judeliza E. Sabredo on the night of July 4,

1994, against her will and consent.
"Contrary to law."[1]
At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on
the merits then ensued. Calrsc
Jimmy admitted having sexual relations with Judeliza, but insisted that it was
consensual. He claimed that they were lovers and had been engaging in
sexual intimacies for three months before running away. He explained that
they had gone to Masbate after Judeliza had revealed to him that she was
not really her father's daughter. They then lived together as husband and
wife. He admitted having boxed and kicked her but claimed that he got mad
at her after she confided that she really was his niece, contrary to what she
earlier told him. He likewise admitted having pinched the victim's vagina, but
only to punish her for deceiving him about their kinship. He claimed the
instant case was filed against him because of the maltreatment she received.
Appellant likewise admitted that he was facing another rape case before
Branch 45 of the same court, which a certain Juanita Turing had filed against
him in 1992. He, however, denied having fled to Cebu to escape prosecution
for said case. Sppedsc
The trial court found appellant's version of the incident preposterous and his
defense untenable. Choosing to believe the prosecution, the trial judge
convicted appellant, and sentenced him thus:
"WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the complex crime of forcible abduction with
rape under Article 48 in relation to Article[s] 335 and 342 of the
Revised Penal Code and is meted the extreme penalty of death.
"The accused is likewise ordered to pay Judeliza Sabredo the
amount of FIFTY THOUSAND PESOS (P50,000.00) by way of moral
damages.
"SO ORDERED."
Before us, on automatic review of the case, appellant assigns the following
errors:

I
THE TRIAL COURT GRAVELY ERRED IN ITS EVALUATION OF THE
HONESTY OF PRIVATE COMPLAINANT, IN EFFECT GIVING FULL
WEIGHT AND CREDENCE TO THE EVIDENCE OF THE
PROSECUTION THAN THAT OF THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.
In sum, the issues for resolution now concern the credibility of the testimony
of the offended party; the correctness of appellant's conviction for forcible
abduction with rape, and the propriety of the imposition of the death penalty
on him. Sdjad
Appellant submits that Judeliza was neither a reliable nor credible witness
since both the information and her affidavit [2] showed that the rape took
place in Nilda's residence, while on direct examination, Judeliza testified that
she was raped at Roberto's house. He claims these inconsistencies cast
doubt on Judeliza's credibility.
However, we have previously held that some discrepancies between the
affidavit and the testimony of the witness in open court do not necessarily
impair credibility of the testimony, for affidavits are generally taken ex parte
and are often incomplete or even inaccurate for lack of searching inquiries by
the investigating officer.[3] Note that here both the affidavit and the
testimony of complainant in open court are consistent as to the fact that
Jimmy raped her while he threatened her with a deadly weapon on July 4,
1994. Her sworn affidavit and her testimony in open court establish the basic
elements of rape. These are: the commission of sexual intercourse, by the
accused against complainant, with the use of force and intimidation, without
her consent and against her will. Suffice it to stress that the trial court found
that the accused abducted his niece by force, mauled and maltreated her
repeatedly, instilling fear in her, dragged her to different places and any
house he pleased, and ravished her on the night of July 4, 1994. Whether the
house belonged to Nilda or Roberto, both of whom they had stayed with, is
not here crucial, for the houses are both in Cagba, Tugbo, Masbate.

Here, the trial court's assessment of the credibility of complainant's

testimony is entitled to great weight, absent any showing that some facts
were overlooked which, if considered, would affect the outcome of the case.
[4]
We find no reason to overturn the trial court's detailed evaluation of the
evidence for both the prosecution and the defense. Complainant Judeliza's
testimony was given in a straightforward, clear, and convincing manner,
which remained consistent even under cross-examination. The trial
court found her testimony believable and convincing, while appellant's
version of events incredible and outrageous. Moreover, as testified by the
medico-legal officer, he found that her body bore evidences of physical and
sexual assault. Appellant's bare denial could not prevail over said positive
evidence.
Appellant next insists that the intercourse between him and Judeliza was
consensual, since they were sweethearts. A "sweetheart defense" should be
substantiated by some documentary and/or other evidence of the
relationship.[5] In this case, there is no showing of mementos, love letters,
notes, pictures, or any concrete proof of a romantic nature. Besides, as
observed by the trial judge, it is contrary to human experience that a naive
rural lass like Judeliza, barely nineteen years old, would willingly consent to
be her uncle's paramour. Nor, would he if he were indeed her sweetheart
maltreat her repeatedly for no justifiable cause, without over-straining our
credulity. Misact
Was appellant's conviction by the trial court for the complex crime of forcible
abduction with rape correct? The elements of forcible abduction are: (1) that
the person abducted is any woman, regardless of age, civil status, or
reputation; (2) that the abduction is against her will; and (3) that the
abduction is with lewd designs. The prosecution's evidence clearly shows
that the victim was forcibly taken at knifepoint from Borbon, Cebu by
appellant and through threats and intimidation brought to various towns in
Masbate, where he passed her off as his "wife". That appellant was moved by
lewd designs was shown in regard to rape by his having carnal knowledge of
private complainant, against her will, on July 4, 1994 at Cagba, Tugbo,
Masbate. While it may appear at first blush that forcible abduction, as
defined and penalized by Article 342 of the Revised Penal Code was also
committed, we are not totally disposed to convict appellant for the complex
crime of forcible abduction with rape. We note that while the information
sufficiently alleges the forcible taking of complainant from Cebu to Masbate,
the same fails to allege "lewd designs." When a complex crime under Article

48 of the Revised Penal Code is charged, such as forcible abduction with

rape, it is axiomatic that the prosecution must allege and prove the presence
of all the elements of forcible abduction, as well as all the elements of the
crime of rape.[6] When appellant, using a blade, forcibly took away
complainant for the purpose of sexually assaulting her, as in fact he did rape
her, the rape may then absorb forcible abduction. [7] Hence, the crime
committed by appellant is simple rape only. Acctmis
The imposable penalty for rape under Article 335 of the Revised Penal Code,
as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is
committed with the use of deadly weapon or by two or more persons, the
imposable penalty ranges from reclusion perpetua to death. The use of the
bladed weapon already qualified the rape.[8] Under Article 63 of the Revised
Penal Code, the crucial factor in determining whether appellant should be
meted the death penalty is the presence of an aggravating circumstance
which attended the commission of the crime.[9] A perusal of the record shows
that none of the aggravating circumstances enumerated in Article 14 of the
Revised Penal Code was alleged and proven by the prosecution. Where there
is no aggravating circumstance proved in the commission of the offense, the
lesser penalty shall be applied. Newmiso
In sentencing appellant to death, the trial court noted that the victim was his
niece, a relative by consanguinity within the third civil degree. Section 11 (1)
of R.A. No. 7659 imposes the death penalty when the rape victim is under 18
years of age and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim. However, R.A. No. 7659
cannot be made to apply in the instant case for two reasons: First, at the
time the rape was committed, private complainant was already more than
eighteen years of age.[10] Second, the information did not allege that offender
and offended party were relatives within the third degree of consanguinity.
We have held that the seven circumstances in R.A. No. 7659 which warrant
the automatic imposition of the death penalty partake of the nature of
qualifying circumstances and as such should be alleged in the information to
be appreciated as such.[11] In view of the failure of the information to comply
with this requirement, said degree of relation could not be taken into account
in considering the penalty to be imposed. For these reasons, the sentence on
appellant should only be reclusion perpetua. Jjlex

We note that the trial court did not award any indemnity ex delicto, which
current jurisprudence has fixed at P50,000.00. Accordingly, appellant is
further sentenced to indemnify private complainant in the amount of
P50,000.00 for the rape he committed against her. As to moral damages, we
find the trial court's award of P50,000.00 in her favor duly supported by
evidence on record and is in order. Misjuris
WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate,
Branch 44, in Criminal Case No. 7454, is hereby MODIFIED. Appellant Jimmy
Sabredo y Garbo is declared guilty beyond reasonable doubt of simple rape
only as defined and penalized under Article 335 of the Revised Penal Code.
The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is
also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the
amount of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity, and to
pay her FIFTY THOUSAND (P50,000.00) PESOS as moral damages. Costs
against appellant. Jurissc
SO ORDERED.
INTESTATE ESTATE OF G.R. No. 181409
MANOLITA GONZALES VDA.
DE CARUNGCONG, represented
by MEDIATRIX CARUNGCONG, Present:
as Administratrix,
Petitioner, CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
- v e r s u s - PERALTA and
MENDOZA, JJ.
PEOPLE OF THE PHILIPPINES
and WILLIAM SATO,
Respondents. Promulgated:
February 11, 2010
x--------------------------------------------------x
DECISION
CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. No
criminal, but only civil liability shall result from the commission
of the crime of theft, swindling, or malicious mischief committed
or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line;
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same
shall have passed into the possession of another; and
3.
Brothers and sisters and brothers-in-law and sistersin-law, if living together.
The exemption established by this article shall not be
applicable to strangers participating in the commission of the
crime. (emphasis supplied)

For purposes of the aforementioned provision, is the relationship by

affinity created between the husband and the blood relatives of his wife (as
well as between the wife and the blood relatives of her husband) dissolved
by the death of one spouse, thus ending the marriage which created such
relationship by affinity? Does the beneficial application of Article 332 cover
the complex crime of estafa thru falsification?
Mediatrix G. Carungcong, in her capacity as the duly appointed
administratrix[1] of petitioner intestate estate of her deceased mother
Manolita Gonzales vda. de Carungcong, filed a complaint-affidavit [2] for estafa
against her brother-in-law, William Sato, a Japanese national. Her complaintaffidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of
legal age, single, and resident of Unit 1111, Prince Gregory

Condominium, 105 12th Avenue, Cubao, Quezon City, after being

duly sworn, depose and state that:
1. I am the duly appointed Administratrix of the Intestate
Estate of Manolita Carungcong Y Gonzale[s], docketed as Spec.
Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City,
Branch 104, being one (1) of her surviving daughters. Copy of
the Letters of Administration dated June 22, 1995 is hereto
attached as Annex A to form an integral part hereof.
2. As such Administratrix, I am duty bound not only to
preserve the properties of the Intestate Estate of Manolita
Carungcong Y Gonzale[s], but also to recover such funds and/or
properties as property belonging to the estate but are presently
in the possession or control of other parties.
3. After my appointment as Administratrix, I was able to
confer with some of the children of my sister Zenaida
Carungcong Sato[,] who predeceased our mother Manolita
Carungcong Y Gonzales, having died in Japan in 1991.
4. In my conference with my nieces Karen Rose Sato and
Wendy Mitsuko Sato, age[d] 27 and 24 respectively, I was able
to learn that prior to the death of my mother Manolita
Carungcong Y Gonzale[s], [s]pecifically on o[r] about November
24, 1992, their father William Sato, through fraudulent
misrepresentations, was able to secure the signature and
thumbmark of my mother on a Special Power of Attorney
whereby my niece Wendy Mitsuko Sato, who was then only
twenty (20) years old, was made her attorney-in-fact, to sell and
dispose four (4) valuable pieces of land in Tagaytay City. Said
Special Power of Attorney, copy of which is attached as ANNEX A
of the Affidavit of Wendy Mitsuko Sato, was signed and
thumbmark[ed] by my mother because William Sato told her
that the documents she was being made to sign involved her
taxes. At that time, my mother was completely blind, having
gone blind almost ten (10) years prior to November, 1992.
5. The aforesaid Special Power of Attorney was signed by
my mother in the presence of Wendy, my other niece Belinda
Kiku Sato, our maid Mana Tingzon, and Governor Josephine
Ramirez who later became the second wife of my sisters
widower William Sato.
6. Wendy Mitsuko Sato attests to the fact that my mother
signed the document in the belief that they were in connection
with her taxes, not knowing, since she was blind, that the same

was in fact a Special Power of Attorney to sell her Tagaytay

properties.
7. On the basis of the aforesaid Special Power of Attorney,
William Sato found buyers for the property and made my niece
Wendy Mitsuko Sato sign three (3) deeds of absolute sale in
favor of (a) Anita Ng (Doc. 2194, Page No. 41, Book No. V, Series
of 1992 of Notary Public Vicente B. Custodio), (b) Anita Ng (Doc.
No. 2331, Page No. 68, Book No. V, Series of 1992 of Notary
Public Vicente B. Custodio) and (c) Ruby Lee Tsai (Doc. No. II,
Page No. 65, Book No. II, Series of 1993 of Notary Public Toribio
D. Labid). x x x
8. Per the statement of Wendy Mitsuko C. Sato, the
considerations appearing on the deeds of absolute sale were not
the true and actual considerations received by her father
William Sato from the buyers of her grandmothers properties.
She attests that Anita Ng actually paid P7,000,000.00 for the
property covered by TCT No. 3148 and P7,034,000.00 for the
property covered by TCT No. 3149. All the aforesaid proceeds
were turned over to William Sato who undertook to make the
proper accounting thereof to my mother, Manolita Carungcong
Gonzale[s].
9. Again, per the statement of Wendy Mitsuko C. Sato,
Ruby Lee Tsai paid P8,000,000.00 for the property covered by
Tax Declaration No. GR-016-0735, and the proceeds thereof
were likewise turned over to William Sato.
10. The considerations appearing on the deeds of sale
were falsified as Wendy Mitsuko C. Sato has actual knowledge of
the true amounts paid by the buyers, as stated in her Affidavit,
since she was the signatory thereto as the attorney-in-fact of
Manolita Carungcong Y Gonzale[s].
11. Wendy was only 20 years old at the time and was not
in any position to oppose or to refuse her fathers orders.
12. After receiving the total considerations for the
properties sold under the power of attorney fraudulently secured
from my mother, which total P22,034,000.00, William Sato failed
to account for the same and never delivered the proceeds to
Manolita Carungcong Y Gonzale[s] until the latter died on June 8,
1994.

13. Demands have been made for William Sato to make

an accounting and to deliver the proceeds of the sales to me as
Administratrix of my mothers estate, but he refused and failed,
and continues to refuse and to fail to do so, to the damage and
prejudice of the estate of the deceased Manolita Carungcong Y
Gonzale[s] and of the heirs which include his six (6) children
with my sister Zenaida Carungcong Sato. x x x[3]

Wendy Mitsuko Satos supporting affidavit and the special power of attorney
allegedly issued by the deceased Manolita Gonzales vda. de Carungcong in
favor of Wendy were attached to the complaint-affidavit of Mediatrix.
In a resolution dated March 25, 1997, the City Prosecutor of Quezon
City dismissed the complaint.[4] On appeal, however, the Secretary of Justice
reversed and set aside the resolution dated March 25, 1997 and directed the
City Prosecutor of Quezon City to file an Information against Sato for violation
of Article 315, paragraph 3(a) of the Revised Penal Code. [5] Thus, the
following Information was filed against Sato in the Regional Trial Court of
Quezon City, Branch 87:[6]
INFORMATION
The undersigned accuses WILLIAM SATO of the crime of ESTAFA
under Article 315[,] par. 3(a) of the Revised Penal Code,
committed as follows:
That on or about the 24th day of November, 1992, in
Quezon City, Philippines, the above-named accused, by means of
deceit, did, then and there, wil[l]fully, unlawfully and feloniously
defraud MANOLITA GONZALES VDA. DE CARUNGCONG in the
following manner, to wit: the said accused induced said Manolita
Gonzales Vda. De Carungcong[,] who was already then blind and
79 years old[,] to sign and thumbmark a special power of
attorney dated November 24, 1992 in favor of Wendy Mitsuko C.
Sato, daughter of said accused, making her believe that said
document involved only her taxes, accused knowing fully well
that said document authorizes Wendy Mitsuko C. Sato, then a
minor, to sell, assign, transfer or otherwise dispose of to any
person or entity of her properties all located at Tagaytay City, as
follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871)

square meters more or less and covered by T.C.T. No.
3147;
2. Five Hundred Forty (540) square meters more or less
and covered by T.C.T. No. 3148 with Tax Declaration
No. GR-016-0722, Cadastral Lot No. 7106;
3. Five Hundred Forty (540) square meters more or less
and covered by T.C.T. No. 3149 with Tax Declaration
No. GR-016-0721, Cadastral Lot No. 7104;
4. Eight Hundred Eighty Eight (888) square meters more or
less with Tax Declaration No. GR-016-1735, Cadastral
Lot No. 7062;
registered in the name of Manolita Gonzales Vda. De
Carungcong, and once in the possession of the said special
power of attorney and other pertinent documents, said accused
made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute
Sale covering Transfer Certificate of Title [TCT] No. 3148
for P250,000.00, [TCT] No. 3149 for P250,000.00 and [Tax
Declaration] GR-016-0735 for P650,000.00 and once in
possession of the proceeds of the sale of the above properties,
said accused, misapplied, misappropriated and converted the
same to his own personal use and benefit, to the damage and
prejudice of the heirs of Manolita Gonzales Vda. De Carungcong
who died in 1994.
Contrary to law.[7]

Subsequently, the prosecution moved for the amendment of the

Information so as to increase the amount of damages from P1,150,000, the
total amount stated in the deeds of sale, to P22,034,000, the actual amount
received by Sato.
Sato moved for the quashal of the Information, claiming that under Article
332 of the Revised Penal Code, his relationship to the person allegedly

defrauded, the deceased Manolita who was his mother-in-law, was an

exempting circumstance.
The prosecution disputed Satos motion in an opposition dated March
29, 2006.
In an order dated April 17, 2006, [8] the trial court granted Satos motion and
ordered the dismissal of the criminal case:
The Trial Prosecutors contention is that the death of the
wife of the accused severed the relationship of affinity between
accused and his mother-in-law. Therefore, the mantle of
protection provided to the accused by the relationship is no
longer obtaining.
A judicious and thorough examination of Article 332 of the
Revised Penal Code convinces this Court of the correctness of the
contention of the [d]efense. While it is true that the death of
Zenaida Carungcong-Sato has extinguished the marriage of
accused with her, it does not erase the fact that accused and
Zenaidas mother, herein complainant, are still son[-in-law] and
mother-in-law and they remained son[-in-law] and mother-in-law
even beyond the death of Zenaida.
Article 332(1) of the Revised Penal Code, is very explicit and
states no proviso. No criminal, but only civil liability[,] shall result
from the commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses,
ascendants and descendants, or relatives by affinity in the same
line.
Article 332, according to Aquino, in his Commentaries [to]
Revised Penal Code, preserves family harmony and obviates
scandal, hence even in cases of theft and malicious mischief,
where the crime is committed by a stepfather against his
stepson, by a grandson against his grandfather, by a son against
his mother, no criminal liability is incurred by the accused only
civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG 12th Supp.
63; Cristobal, 84 Phil. 473).
Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information

meritorious, the same is GRANTED and, as prayed for, case is
hereby DISMISSED.
SO ORDERED.[9] (underlining supplied in the original)

The prosecutions motion for reconsideration [10] was denied in an order

dated June 2, 2006.[11]
Dissatisfied with the trial courts rulings, the intestate estate of Manolita,
represented by Mediatrix, filed a petition for certiorari in the Court of
Appeals[12] which, however, in a decision[13] dated August 9, 2007, dismissed
it. It ruled:
[W]e sustain the finding of [the trial court] that the death
of Zenaida did not extinguish the relationship by affinity
between her husband, private respondent Sato, and her mother
Manolita, and does not bar the application of the exempting
circumstance under Article 332(1) of the Revised Penal Code in
favor of private respondent Sato.
We further agree with the submission of the [Office of the
Solicitor General (OSG)] that nothing in the law and/or existing
jurisprudence supports the argument of petitioner that the fact
of death of Zenaida dissolved the relationship by affinity
between Manolita and private respondent Sato, and thus
removed the protective mantle of Article 332 of the Revised
Penal Code from said private respondent; and that
notwithstanding the death of Zenaida, private respondent Sato
remains to be the son-in-law of Manolita, and a brother-in-law of
petitioner administratrix. As further pointed out by the OSG, the
filing of the criminal case for estafa against private respondent
Sato already created havoc among members of the Carungcong
and Sato families as private respondents daughter Wendy
Mitsuko Sato joined cause with her aunt [Mediatrix] Carungcong
y Gonzales, while two (2) other children of private respondent,
William Francis and Belinda Sato, took the side of their father.
There is a dearth of jurisprudence and/or commentaries
elaborating on the provision of Article 332 of the Revised Penal
Code. However, from the plain language of the law, it is clear

that the exemption from criminal liability for the crime of

swindling (estafa) under Article 315 of the Revised Penal Code
applies to private respondent Sato, as son-in-law of Manolita,
they being relatives by affinity in the same line under Article
332(1) of the same Code. We cannot draw the distinction that
following the death of Zenaida in 1991, private respondent Sato
is no longer the son-in-law of Manolita, so as to exclude the
former from the exempting circumstance provided for in Article
332 (1) of the Revised Penal Code.
Ubi lex non distinguit nec nos distinguere debemos. Basic
is the rule in statutory construction that where the law does not
distinguish, the courts should not distinguish. There should be
no distinction in the application of law where none is indicated.
The courts could only distinguish where there are facts or
circumstances showing that the lawgiver intended a distinction
or qualification. In such a case, the courts would merely give
effect to the lawgivers intent. The solemn power and duty of the
Court to interpret and apply the law does not include the power
to correct by reading into the law what is not written therein.
Further, it is an established principle of statutory
construction that penal laws are strictly construed against the
State and liberally in favor of the accused. Any reasonable doubt
must be resolved in favor of the accused. In this case, the plain
meaning of Article 332 (1) of the Revised Penal Codes simple
language is most favorable to Sato.[14]

The appellate court denied reconsideration.[15] Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the
orders of the trial court. It cites the commentary of Justice Luis B. Reyes in
his book on criminal law that the rationale of Article 332 of the Revised Penal
Code exempting the persons mentioned therein from criminal liability is
that the law recognizes the presumed co-ownership of the property
between the offender and the offended party. Here, the properties
subject of the estafa case were owned by Manolita whose daughter, Zenaida
Carungcong-Sato (Satos wife), died on January 28, 1991. Hence, Zenaida

never became a co-owner because, under the law, her right to the
three parcels of land could have arisen only after her mothers
death. Since Zenaida predeceased her mother, Manolita, no such
right came about and the mantle of protection provided to Sato by
the relationship no longer existed.
Sato counters that Article 332 makes no distinction that the relationship may
not be invoked in case of death of the spouse at the time the crime was
allegedly committed. Thus, while the death of Zenaida extinguished her
marriage with Sato, it did not dissolve the son-in-law and mother-in-law
relationship between Sato and Zenaidas mother, Manolita.
For his part, the Solicitor General maintains that Sato is covered by the
exemption from criminal liability provided under Article 332. Nothing in the
law and jurisprudence supports petitioners claim that Zenaidas death
dissolved the relationship by affinity between Sato and Manolita. As it is, the
criminal case against Sato created havoc among the members of the
Carungcong and Sato families, a situation sought to be particularly avoided
by Article 332s provision exempting a family member committing theft,
estafa or malicious mischief from criminal liability and reducing his/her
liability to the civil aspect only.
The petition has merit.
The resolution of this case rests on the interpretation of Article 332 of the
Revised Penal Code. In particular, it calls for the determination of the
following: (1) the effect of death on the relationship by affinity created

between a surviving spouse and the blood relatives of the deceased spouse
and (2) the extent of the coverage of Article 332.
EFFECT OF DEATH ON RELATIONSHIP
BY AFFINITY AS ABSOLUTORY CAUSE

Article 332 provides for an absolutory cause[16] in the

crimes of theft, estafa (or swindling) and malicious mischief. It limits the
responsibility of the offender to civil liability and frees him from criminal
liability by virtue of his relationship to the offended party.
In connection with the relatives mentioned in the first paragraph, it has been
held that included in the exemptions are parents-in-law, stepparents and
adopted children.[17] By virtue thereof, no criminal liability is incurred by the
stepfather who commits malicious mischief against his stepson; [18] by the
stepmother who commits theft against her stepson; [19] by the stepfather who
steals something from his stepson;[20] by the grandson who steals from his
grandfather;[21] by the accused who swindles his sister-in-law living with him;
[22]

and by the son who steals a ring from his mother.[23]

Affinity is the relation that one spouse has to the blood relatives of the

other spouse. It is a relationship by marriage or

a familial relation resulting from marriage. [24] It is a fictive kinship, a fiction
created by law in connection with the institution of marriage and family
relations.
If marriage gives rise to ones relationship by affinity to the blood
relatives of ones spouse, does the extinguishment of marriage by the death
of the spouse dissolve the relationship by affinity?

Philippine jurisprudence has no previous encounter with the issue that

confronts us in this case. That is why the trial and appellate courts
acknowledged the dearth of jurisprudence and/or commentaries on the
matter. In contrast, in the American legal system, there are two views on the
subject. As one Filipino author observed:
In case a marriage is terminated by the death of one of the
spouses, there are conflicting views. There are some who
believe that relationship by affinity is not terminated whether
there are children or not in the marriage (Carman vs. Newell,
N.Y. 1 [Denio] 25, 26). However, the better view supported by
most judicial authorities in other jurisdictions is that, if the
spouses have no living issues or children and one of the spouses
dies, the relationship by affinity is dissolved. It follows the rule
that relationship by affinity ceases with the dissolution of the
marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56
Am Dec. 288). On the other hand, the relationship by affinity is
continued despite the death of one of the spouses where there
are living issues or children of the marriage in whose veins the
blood of the parties are commingled, since the relationship of
affinity was continued through the medium of the issue of the
marriage (Paddock vs. Wells, 2 Barb. Ch. 331, 333).[25]
The first view (the terminated affinity view) holds that relationship by affinity
terminates with the dissolution of the marriage either by death or divorce
which gave rise to the relationship of affinity between the parties. [26] Under
this view, the relationship by affinity is simply coextensive and coexistent
with the marriage that produced it. Its duration is indispensably and
necessarily determined by the marriage that created it. Thus, it exists only
for so long as the marriage subsists, such that the death of a spouse ipso
facto ends the relationship by affinity of the surviving spouse to the
deceased spouses blood relatives.

The first view admits of an exception. The relationship by affinity continues

even after the death of one spouse when there is a surviving issue. [27] The
rationale is that the relationship is preserved because of the living issue of
the marriage in whose veins the blood of both parties is commingled. [28]
The second view (the continuing affinity view) maintains that relationship by
affinity between the surviving spouse and the kindred of the deceased
spouse continues even after the death of the deceased spouse, regardless of
whether the marriage produced children or not. [29] Under this view, the
relationship by affinity endures even after the dissolution of the marriage
that produced it as a result of the death of one of the parties to the said
marriage. This view considers that, where statutes have indicated an intent
to benefit step-relatives or in-laws, the tie of affinity between these people
and their relatives-by-marriage is not to be regarded as terminated upon the
death of one of the married parties.[30]
After due consideration and evaluation of the relative merits of the two
views, we hold that the second view is more consistent with the language
and spirit of Article 332(1) of the Revised Penal Code.
First, the terminated affinity view is generally applied in cases of jury
disqualification and incest.[31] On the other hand, the continuing affinity view
has been applied in the interpretation of laws that intend to benefit steprelatives or in-laws. Since the purpose of the absolutory cause in Article
332(1) is meant to be beneficial to relatives by affinity within the degree
covered under the said provision, the continuing affinity view is more
appropriate.

Second, the language of Article 332(1) which speaks of relatives by affinity

in the same line is couched in general language. The legislative intent to
make no distinction between the spouse of ones living child and the
surviving spouse of ones deceased child (in case of a son-in-law or daughterin-law with respect to his or her parents-in-law) [32] can be drawn from Article
332(1) of the Revised Penal Code without doing violence to its language.
Third, the Constitution declares that the protection and strengthening of the
family as a basic autonomous social institution are policies of the State and
that it is the duty of the State to strengthen the solidarity of the family.
[33]

Congress has also affirmed as a State and national policy that courts shall

preserve the solidarity of the family. [34] In this connection, the spirit of Article
332 is to preserve family harmony and obviate scandal. [35] The view that
relationship by affinity is not affected by the death of one of the parties to
the marriage that created it is more in accord with family solidarity and
harmony.
Fourth, the fundamental principle in applying and in interpreting
criminal laws is to resolve all doubts in favor of the accused. In dubio pro reo.
When in doubt, rule for the accused. [36] This is in consonance with the
constitutional guarantee that the accused shall be presumed innocent unless
and until his guilt is established beyond reasonable doubt.[37]
Intimately related to the in dubio pro reo principle is the rule of lenity.
[38]

The rule applies when the court is faced with two possible interpretations

of a penal statute, one that is prejudicial to the accused and another that is
favorable to him. The rule calls for the adoption of an interpretation which is
more lenient to the accused.

Lenity becomes all the more appropriate when this case is viewed through
the lens of the basic purpose of Article 332 of the Revised Penal Code to
preserve family harmony by providing an absolutory cause. Since the goal of
Article 332(1) is to benefit the accused, the Court should adopt an
application or interpretation that is more favorable to the accused. In this
case, that interpretation is the continuing affinity view.
Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold
that the relationship by affinity created between the surviving spouse and
the blood relatives of the deceased spouse survives the death of either party
to the marriage which created the affinity. (The same principle applies to the
justifying circumstance of defense of ones relatives under Article 11[2] of the
Revised Penal Code, the mitigating circumstance of immediate vindication of
grave offense committed against ones relatives under Article 13[5] of the
same Code and the absolutory cause of relationship in favor of accessories
under Article 20 also of the same Code.)
SCOPE OF ARTICLE 332 OF
THE REVISED PENAL CODE

The absolutory cause under Article 332 of the Revised Penal Code only
applies to the felonies of theft, swindling and malicious mischief. Under the
said provision, the State condones the criminal responsibility of the offender
in cases of theft, swindling and malicious mischief. As an act of grace, the
State waives its right to prosecute the offender for the said crimes but leaves
the private offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies

mentioned therein. The plain, categorical and unmistakable language of the
provision shows that it applies exclusively to the simple crimes of theft,
swindling and malicious mischief. It does not apply where any of the crimes
mentioned under Article 332 is complexed with another crime, such as theft
through falsification or estafa through falsification.[39]
The Information against Sato charges him with estafa. However, the
real nature of the offense is determined by the facts alleged in the
Information, not by the designation of the offense. [40] What controls is not the
title of the Information or the designation of the offense but the actual facts
recited in the Information.[41] In other words, it is the recital of facts of the
commission of the offense, not the nomenclature of the offense, that
determines the crime being charged in the Information. [42] It is the exclusive
province of the court to say what the crime is or what it is named. [43] The
determination by the prosecutor who signs the Information of the crime
committed is merely an opinion which is not binding on the court.[44]
A reading of the facts alleged in the Information reveals that Sato is
being charged not with simple estafa but with the complex crime of estafa
through falsification of public documents. In particular, the Information states
that Sato, by means of deceit, intentionally defrauded Manolita committed as
follows:
(a) Sato presented a document to Manolita (who was already blind at
that time) and induced her to sign and thumbmark the same;
(b) he made Manolita believe that the said document was in
connection with her taxes when it was in fact a special power of

attorney (SPA) authorizing his minor daughter Wendy to sell,

assign, transfer or otherwise dispose of Manolitas properties in
Tagaytay City;
(c) relying on Satos inducement and representation, Manolita signed
and thumbmarked the SPA in favor of Wendy Mitsuko Sato,
daughter of Sato;
(d) using the document, he sold the properties to third parties but he
neither delivered the proceeds to Manolita nor accounted for the
same and
(d) despite repeated demands, he failed and refused to deliver the
proceeds, to the damage and prejudice of the estate of Manolita.
The above averments in the Information show that the estafa was
committed by attributing to Manolita (who participated in the execution of
the document) statements other than those in fact made by her. Manolitas
acts of signing the SPA and affixing her thumbmark to that document were
the very expression of her specific intention that something be done about
her taxes. Her signature and thumbmark were the affirmation of her
statement on such intention as she only signed and thumbmarked the SPA (a
document which she could not have read) because of Satos representation
that the document pertained to her taxes. In signing and thumbmarking the
document,

Manolita

showed

that

she

believed

and

adopted

the

representations of Sato as to what the document was all about, i.e., that it
involved her taxes. Her signature and thumbmark, therefore, served as her
conformity to Satos proposal that she execute a document to settle her
taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that
Manolita granted his daughter Wendy a special power of attorney for the
purpose of selling, assigning, transferring or otherwise disposing of Manolitas
Tagaytay

properties

when

the

fact

was

that

Manolita

signed

and

thumbmarked the document presented by Sato in the belief that it pertained

to her taxes. Indeed, the document itself, the SPA, and everything that it
contained were falsely attributed to Manolita when she was made to sign
the SPA.
Moreover, the allegations in the Information that
(1) once in the possession of the said special power of attorney and
other pertinent documents, [Sato] made Wendy Mitsuko Sato
sign the three (3) Deeds of Absolute Sale and
(2) once in possession of the proceeds of the sale of the above
properties, said accused, misapplied, misappropriated and
converted the same to his own personal use and benefit

raise the presumption that Sato, as the possessor of the falsified document
and the one who benefited therefrom, was the author thereof.
Furthermore, it should be noted that the prosecution moved for the
amendment of the Information so as to increase the amount of damages
from P1,150,000 toP22,034,000. This was granted by the trial court and was
affirmed by the Court of Appeals on certiorari. This meant that the amended
Information would now state that, while the total amount of consideration
stated in the deeds of absolute sale was only P1,150,000, Sato actually
received the total amount of P22,034,000 as proceeds of the sale of
Manolitas properties.[45] This also meant that the deeds of sale (which were

public documents) were also falsified by making untruthful statements as to

the amounts of consideration stated in the deeds.
Therefore, the allegations in the Information essentially charged a
crime that was not simple estafa. Sato resorted to falsification of public
documents (particularly, the special power of attorney and the deeds of sale)
as a necessary means to commit the estafa.
Since the crime with which respondent was charged was not simple
estafa but the complex crime of estafa through falsification of public
documents, Sato cannot avail himself of the absolutory cause provided under
Article 332 of the Revised Penal Code in his favor.

EFFECT OF ABSOLUTORY CAUSE UNDER

ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS

The question may be asked: if the accused may not be held criminally
liable for simple estafa by virtue of the absolutory cause under Article 332 of
the Revised Penal Code, should he not be absolved also from criminal liability
for the complex crime of estafa through falsification of public documents?
No.

True, the concurrence of all the elements of the two crimes of estafa
and falsification of public document is required for a proper conviction for the
complex crime of estafa through falsification of public document. That is the
ruling in Gonzaludo v. People.[46] It means that the prosecution must establish
that the accused resorted to the falsification of a public document as a
necessary means to commit the crime of estafa.
However, a proper appreciation of the scope and application of Article
332 of the Revised Penal Code and of the nature of a complex crime would
negate exemption fromcriminal liability for the complex crime of estafa
through falsification of public documents, simply because the accused may
not be held criminally liable for simple estafa by virtue of the absolutory
cause under Article 332.
The absolutory cause under Article 332 is meant to address specific
crimes against property, namely, the simple crimes of theft, swindling and
malicious mischief. Thus,all other crimes, whether simple or complex,
are not affected by the absolutory cause provided by the said
provision. To apply the absolutory cause under Article 332 of the Revised
Penal Code to one of the component crimes of a complex crime for the
purpose of negating the existence of that complex crime is to unduly expand
the scope of Article 332. In other words, to apply Article 332 to the complex
crime of estafa through falsification of public document would be to
mistakenly treat the crime of estafa as a separate simple crime, not as the
component crime that it is in that situation. It would wrongly consider the
indictment as separate charges of estafa and falsification of public

document, not as a single charge for the single (complex) crime of estafa
through falsification of public document.
Under Article 332 of the Revised Penal Code, the State waives its right
to hold the offender criminally liable for the simple crimes of theft, swindling
and malicious mischief and considers the violation of the juridical right to
property committed by the offender against certain family members as a
private matter and therefore subject only to civil liability. The waiver does not
apply when the violation of the right to property is achieved through (and
therefore inseparably intertwined with) a breach of the public interest in the
integrity and presumed authenticity of public documents. For, in the latter
instance, what is involved is no longer simply the property right of a
family relation but a paramount public interest.
The purpose of Article 332 is to preserve family harmony and obviate
scandal.[47] Thus, the action provided under the said provision simply
concerns the private relations of the parties as family members and is limited
to the civil aspect between the offender and the offended party. When estafa
is committed through falsification of a public document, however, the matter
acquires a very serious public dimension and goes beyond the respective
rights and liabilities of family members among themselves. Effectively, when
the offender resorts to an act that breaches public interest in the integrity of
public documents as a means to violate the property rights of a family
member, he is removed from the protective mantle of the absolutory cause
under Article 332.
In considering whether the accused is liable for the complex crime of
estafa through falsification of public documents, it would be wrong to

consider the component crimes separately from each other. While there
may be two component crimes (estafa and falsification of documents),
both felonies are animated by and result from one and the same criminal
intent for which there is only one criminal liability.[48] That is the concept
of a complex crime. In other words, while there are two crimes, they are
treated only as one, subject to a single criminal liability.
As opposed to a simple crime where only one juridical right or interest
is violated (e.g., homicide which violates the right to life, theft which violates
the right to property),[49] a complex crime constitutes a violation of diverse
juridical rights or interests by means of diverse acts, each of which is a
simple crime in itself.[50] Since only a single criminal intent underlies the
diverse acts, however, the component crimes are considered as elements of
a single crime, the complex crime. This is the correct interpretation of a
complex crime as treated under Article 48 of the Revised Penal Code.
In the case of a complex crime, therefore, there is a formal (or ideal)
plurality of crimes where the same criminal intent results in two or more
component crimes constituting a complex crime for which there is only one
criminal liability.[51] (The complex crime of estafa through falsification of
public document falls under this category.) This is different from a material
(or real) plurality of crimes where different criminal intents result in two or
more crimes, for each of which the accused incurs criminal liability. [52] The
latter category is covered neither by the concept of complex crimes nor by
Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of

crimes (concursus delictuorum or concurso de delitos) gives rise to a single
criminal liability and requires the imposition of a single penalty:
Although [a] complex crime quantitatively consists of two
or more crimes, it is only one crime in law on which a single
penalty is imposed and the two or more crimes constituting the
same are more conveniently termed as component crimes.
[53]
(emphasis supplied)

In [a] complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the law
as well as in the conscience of the offender. The offender hasonly
one criminal intent. Even in the case where an offense is a
necessary means for committing the other, the evil intent of the
offender is only one.[54]

For this reason, while a conviction for estafa through falsification of

public document requires that the elements of both estafa and falsification
exist, it does not mean that the criminal liability for estafa may be
determined and considered independently of that for falsification. The two
crimes of estafa and falsification of public documents are not
separate crimes but component crimes of the single complex crime
of estafa and falsification of public documents.
Therefore, it would be incorrect to claim that, to be criminally liable for
the complex crime of estafa through falsification of public document, the
liability for estafa should be considered separately from the liability for
falsification of public document. Such approach would disregard the nature of
a complex crime and contradict the letter and spirit of Article 48 of the
Revised Penal Code. It would wrongly disregard the distinction between

formal plurality and material plurality, as it improperly treats the plurality of

crimes in the complex crime of estafa through falsification of public
document as a mere material plurality where the felonies are considered as
separate crimes to be punished individually.
FALSIFICATION
OF
PUBLIC
DOCUMENTS MAY BE A NECESSARY
MEANS FOR COMMITTING ESTAFA
EVEN UNDER ARTICLE 315 (3[A])

The elements of the offense of estafa punished under Article 315 (3[a])
of the Revised Penal Code are as follows:
(1) the offender induced the offended party to sign a document;
(2) deceit was employed to make the offended party sign the
document;
(3) the offended party personally signed the document and
(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law
does not require that the document be falsified for the consummation
thereof, it does not mean that the falsification of the document cannot be
considered as a necessary means to commit the estafa under that provision.
The phrase necessary means does not connote indispensable means
for if it did, then the offense as a necessary means to commit another would
be an indispensable element of the latter and would be an ingredient thereof.
[55]

In People v. Salvilla,[56] the phrase necessary means merely signifies that

one crime is committed to facilitate and insure the commission of the other.

[57]

In this case, the crime of falsification of public document, the SPA, was

such a necessary means as it was resorted to by Sato to facilitate and carry

out more effectively his evil design to swindle his mother-in-law. In particular,
he used the SPA to sell the Tagaytay properties of Manolita to unsuspecting
third persons.
When the offender commits in a public document any of the acts of
falsification enumerated in Article 171 of the Revised Penal Code as a
necessary means to commit another crime, like estafa, theft or malversation,
the two crimes form a complex crime under Article 48 of the same Code.
[58]

The falsification of a public, official or commercial document may be a

means of committing estafa because, before the falsified document is

actually utilized to defraud another, the crime of falsification has
already been consummated, damage or intent to cause damage not
being an element of the crime of falsification of a public, official or
commercial document.[59] In other words, the crime of falsification was
committed prior to the consummation of the crime of estafa. [60] Actually
utilizing the falsified public, official or commercial document to defraud
another is estafa.[61] The damage to another is caused by the commission of
estafa, not by the falsification of the document.[62]
Applying the above principles to this case, the allegations in the
Information show that the falsification of public document was consummated
when Sato presented a ready-made SPA to Manolita who signed the same as
a statement of her intention in connection with her taxes. While the
falsification

was

consummated

upon

the

execution

of

the SPA,

the

consummation of the estafa occurred only when Sato later utilized the SPA.

He did so particularly when he had the properties sold and thereafter

pocketed the proceeds of the sale. Damage or prejudice to Manolita was
caused not by the falsification of the SPA (as no damage was yet caused to
the property rights of Manolita at the time she was made to sign the
document) but by the subsequent use of the said document. That is why the
falsification of the public document was used to facilitate and ensure (that is,
as a necessary means for) the commission of the estafa.
The situation would have been different if Sato, using the same
inducement, had made Manolita sign a deed of sale of the properties either
in his favor or in favor of third parties. In that case, the damage would have
been caused by, and at exactly the same time as, the execution of the
document, not prior thereto. Therefore, the crime committed would only
have been the simple crime of estafa. [63] On the other hand, absent any
inducement (such as if Manolita herself had been the one who asked that a
document pertaining to her taxes be prepared for her signature, but what
was presented to her for her signature was an SPA), the crime would have
only been the simple crime of falsification.[64]
WHEREFORE, the petition is hereby GRANTED. The decision dated
August 9, 2007 and the resolution dated January 23, 2008 of the Court of
Appeals in CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE. The case
is remanded to the trial court which is directed to try the accused with
dispatch for the complex crime of estafa through falsification of public
documents.
SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

TUMLOS,Defendant-Appellant.

vs. IRINEO

Marcelo
Nubla
for
appellant.
Office of the Solicitor-General Ozaeta and Acting Assistant Attorney Kahn for
appellee.
VILLA-REAL, J.: chanrobles virtual law library
The defendant Irineo Tumlos appeals to this court from the judgment of the
Court of First Instance of Iloilo finding him guilty of the crime of theft of large
cattle defined and punished in article 310, in relation to article 309, of the
Revised Penal Code, and sentencing him to suffer the indeterminate penalty
of from two months and one day ofarresto mayor to two years, four months
and one day of prision correccional, with the accessories prescribed by law
and costs, by virtue of an information reading as follows:
The undersigned acting provincial fiscal accuses Irineo Tumlos of the crime of
qualified theft committed as follows:chanrobles virtual law library
That on or about November 21, 1937, in the municipality of Sara, Province of
Iloilo, Philippines, and within the jurisdiction of this court, said defendant,
wilfully and without using force upon things or violence or intimidation
against person, took, with intent to gain and without the consent of their
owner, five cows valued at P39 and belonging to Ambrosio
Pecasis.chanroblesvirtualawlibrary chanrobles virtual law library
An act punishable by law.chanroblesvirtualawlibrary chanrobles virtual law
library
Iloilo, July 11, 1938.
In support of his appeal the appellant assigns as the only error allegedly
committed by the lower court in the aforesaid judgment its failure to sustain
the defense of "autrefois convict" or double jeopardy, interposed by said
defendant.chanroblesvirtualawlibrary chanrobles virtual law library
On or about November 21, 1937, eight cows belonging
Sobrevega and five belonging to his son-in-law, Ambrosio
grazing together in the barrio of Libong-cogon, municipality of
of Iloilo, were taken by the herein defendant without the

to Maximiano
Pecasis, then
Sara, Province
knowledge or

consent of their respective owners. The deputy fiscal of Iloilo filed on July 11,
1938, an information against the said defendant for the offense of theft of
the eight cows belonging to Maximiano Sobrevega, which resulted in his
being sentenced on July 15, 1938, to an indeterminate penalty of from one
year, eight months and twenty-one days to five years, five months and
eleven days of prision correccional, with the accessories prescribed by law
and costs. In the information filed in the present case the same defendant is
charged with the theft of five cows belonging to Ambrosio Pecasis,
committed on November 21, 1937, the date of the commission of the theft to
the eight cows of Maximiano Sobrevega charged to the previous
information.chanroblesvirtualawlibrary chanrobles virtual law library
The question to be decided in the present appeal is whether or not the
conviction of the accused for the theft of the eight cows belonging to
Maximiano Sobrevega constitutes a bar to his conviction for the theft of the
five cows belonging to Ambrosio Pecasis, which were grazing together with
the aforesaid eight cows belonging to Maximiano Sobrevega in the same
place from which they were stolen at the same time, under the legal
procedural
principle
of
"autrefois
convict"
or
double
jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library
The theft of the thirteen cows committed by the defendant took place at the
same time and in the same place; consequently, he performed but one act.
The fact that eight of said cows pertained to one owner and five to another
does not make him criminally liable for two distinct offenses, for the reason
that in such case the act must be divided into two, which act is not
susceptible of division.chanroblesvirtualawlibrary chanrobles virtual law
library
The intention was likewise one, namely, to take for the purpose of
appropriating or selling the thirteen cows which he found grazing in the same
place. As neither the intention nor the criminal act is susceptible of division,
the offense arising from the concurrence of its two constituent elements
cannot be divided, it being immaterial that the subject matter of the offense
is singular or plural, because whether said subject matter be one or several
animate
or
inanimate
objects,
it
is
but
one.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, as the five cows alleged to be stolen by Irineo Tumlos were
integral parts of the thirteen cows which were the subject matter of theft,

and as he had already been tried for and convicted of the theft of the other
five.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, as he had already been put in jeopardy of being convicted of the
theft of the five cows in question when he was tried for and convicted of the
theft of the eight which together with the five from an integral part of the
thirteen which were the subject matter of the offense, the conviction of the
herein defendant Irineo Tumlos for the said five cows in the present case
would be the second, in violation of his constitutional right not to be
punished twice for the same offense; hence, he is acquitted of the charge,
which is dismissed, with costs de oficio. So ordered.
G.R. No. L-28547 February 22, 1974
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN
GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO
BRILLANTES, defendants-appellants.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General
Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p
This 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).
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.
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.
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.
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.
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.
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.
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.

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.
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 repaired to the police station at
Mandurriao. He reported to Patrolmen Jabatan and 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 thereat,
the men and the truck were not there anymore.
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 runway which was a shortcut. Their objective was to
intercept the truck. Trespeces turned his car around in order to return to
Mandurriao. At that moment he heard 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. Patrolman Castro and
Trespeces lifted Jabatan into the car and brought him to the hospital.
Trespeces learned later that Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City
police department, conducted an autopsy on the remains of Patrolman
Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating left
anterior axilla, directed diagonally downward to the right,

perforating the left upper lobe of the lungs through and through,
bitting the left pulmonary artery and was recovered at the right
thoracic cavity; both thoracic cavity was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about six
o'clock in the morning of January 10, 1966. He discovered that the door of
one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The
feeding vessels were scattered on the ground. Upon investigation he found
that six of his fighting cocks 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. The coops were located at the side
of his house, about two meters therefrom.
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 pictures of the chicken coops. The six roosters were valued at one
hundred pesos each. Two days later, he was summoned to the police station
at Mandurriao to identify a rooster which was recovered somewhere at the
airport. He readily identified it as one of the six roosters which was stolen
from his chicken coop (Exh. B).
Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con
homicidio with the aggravating circumstances of use of a motor vehicle,
nocturnity, band, contempt of or with insult to the public authorities and
recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case
was dismissed as to him.
On February 2, 1967, after the prosecution had rested its case and before the
defense had commenced the presentation of its evidence, Jaranilla escaped
from the provincial jail. The record does not show that he has been
apprehended.
The judgment of conviction was promulgated as to defendants Suyo and
Brillantes on October 19, 1967 when it was read to them in court. They
signed at the bottom of the last page of the decision.
There was no promulgation of the judgment as to Jaranilla, who, as already
stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).

However, the notice of appeal filed by defendants' counsel de

oficio erroneously included Jaranilla. Inasmuch as the judgment has not been
promulgated as to Jaranilla, he could not have appealed. His appeal through
counsel cannot be entertained. Only the appeals of defendants Suyo and
Brillantes will be considered.
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 Jabatan was killed "by reason or on the occasion of the robbery"
within the purview of article 294 of the Revised Penal Code.
In this appeal the appellants contend that the trial court erred in not finding
that 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, they further contend that the taking of roosters was theft
and, alternatively, that, if it was robbery, the crime could not be robbery with
homicide because the robbery was already consummated when Jabatan was
killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was
driving the truck and who shot policeman, this Court finds that the trial court
did not err in giving credence to Gorriceta's declaration that he was driving
the truck at the time that Jaranilla shot Jabatan.
The improbability of appellants' theory is manifest. The truck belonged to
Gorriceta's sister. He was responsible for its preservation. He had the
obligation to return it to his sister in the same condition when he borrowed it.
He was driving it when he saw Brillantes, Jaranilla and Suyo and when he
allegedly invited them for a paseo. There is no indubitable proof that Jaranilla
knows how to drive a truck.
The theory of the defense may be viewed from another angle. If, according
to the appellants, Gorriceta asked Jaranilla to drive the truck because he
(Gorriceta) was drunk then that circumstance would be inconsistent with
their theory that Gorriceta shot Jabatan. Being supposedly intoxicated,
Gorriceta would have been dozing when 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 accurately at Jabatan. But the
fact is that the first shot hit Jabatan. So, the one who shot him must have
been a sober person like Jaranilla.

Moreover, as Jaranilla and his two comrades were interested in concealing

the 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 plausible.
Was the taking of the roosters robbery or theft? There is no evidence that in
taking the six roosters from their coop or cages in the yard of Baylon's house
violence against or intimidation of persons was employed. Hence, article 294
of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal Code
which penalizes robbery in an inhabited house (casa habitada), public
building or edifice devoted to worship. The coop was not inside Baylon's
house. Nor was it a dependency thereof within the meaning of article 301 of
the Revised Penal Code.
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:
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.
2. If any wall, roof, floor or outside door or window has been
broken.
3. If the entrance has been effected through the use of false
keys, picklocks or other similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture
or receptacle has been broken.

5. If any closed or sealed receptacle, as mentioned in the

preceding paragraph, has been removed, even if the same be
broken open elsewhere.
xxx xxx xxx
In this connection, it is relevant to note that there is an inaccuracy in the
English translation of article 302. The controlling Spanish original reads:
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 primero del articulo
299, ... . (Tomo 26, Leyes Publicas 479).
The term "lugar no habitado" is erroneously translated. as "uninhabited
place", a 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 habitado is the antonym of casa
habitada (inhabited house) in article 299.
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 should enter the building (casa habitada o
lugar no habitado o edificio). If the culprit did not enter the building, there
would be no robbery with force upon things. (See Albert, Revised Penal Code,
1932 edition, p. 688).
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.

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).
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 sty is not a building within the
meaning of article 302. The stealing of hogs from a pig sty is theft and not
robbery, although the culprit breaks into it. Article 302 refers 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
Spanish Supreme Court dated March 2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and A-1) Baylon's coop,
which is known in the dialect as tangkalor kulungan, is about five yards long,
one yard wide and one yard high. It has wooden stilts and bamboo strips as
bars. The coop barely 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 person cannot be accommodated inside
the cage or compartment. It was not intended that a person should go inside
that compartment. The taking was effected by forcibly opening the cage and
putting the hands inside it to get the roosters.
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 criminal impulse. The conduct of the accused
reveals that they conspired to steal the roosters. The taking is punishable as
a single offense of theft. Thus, it was held that the taking of two roosters in
the same place and on the same occasion cannot give rise to two crimes of
theft (People vs. De Leon, 49 Phil. 437, citing decision of 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).
Nocturnity and use of a motor vehicle are aggravating. Those circumstances
facilitated the commission of the theft. The accused intentionally sought the
cover of night and used a motor vehicle so as to insure the success of their
nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon,
104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the
aggravating 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 Penal Code).
The theft of six roosters valued at six hundred pesos is punishable by prision
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 circumstances are present (Art. 64[3], Revised Penal Code).
Although recidivists, appellants Suyo and Brillantes are not habitual
delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No.
4103).
With respect to the killing of Patrolman Jabatan, it has already been noted
that the evidence for the prosecution points to Jaranilla as the malefactor
who shot that unfortunate peace officer. The killing was homicide because it
was made on the spur of the moment. The treacherous mode of attack was
not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38
Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty at
the 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, Revised Penal Code) complexed with homicide. The two offenses
resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen,
85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the part
of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to
steal the fighting cocks. The conspiracy is shown by the manner in which
they perpetrated the theft. They went to the scene of the crime together.

They left the yard of Baylon's residence, each carrying two roosters. They all
boarded the getaway truck driven by Gorriceta.
The theft was consummated when the culprits were able to take possession
of the roosters. It is not an indispenable element of theft that the thief carry,
more or less far away, the thing taken by him from its owner (People vs.
Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil.
754).
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 killing of Jabatan, except the circumstance that they
were with Jaranilla in the truck when the latter shot the policeman. Gorriceta
testified that Suyo did not do anything when Jabatan approached the right
side of the truck and came in close proximity to Jaranilla who was on the
extreme right. Brillantes pulled his revolver 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 thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead
of taking the witness stand to refute the testimony of Gorriceta, Jaranilla
escaped from jail. That circumstance is an admission of guilt.
The instant case is different from People vs. Mabassa, 65 Phil. 568 where the
victim was killed on the occasion when the accused took his chickens under
the house. It is 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 robbery was clearly proven and the homicide was
perpetrated on the occasion of the robbery. As already noted, theft, not
robbery, was committed in this case.
The situation in this case bears some analogy to that found in the People vs.
Basisten, 47 Phil. 493 where the homicide committed by a member of the
band was not a part of the common plan to commit robbery. Hence, only the
person who perpetrated the killing was liable for robbery with homicide. The
others were convicted of robbery only.
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.
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.
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 ofprision
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.
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).
So ordered.
G.R. No. 109266 December 2, 1993
MIRIAM
DEFENSOR
SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First
Division) and PEOPLE OF THE PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the Philippines.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
set aside: (a) the Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding
Justice Francis Garchitorena of the Sandiganbayan, disqualified from acting in
said criminal case; and (b) the Resolution of said court promulgated on

March 14, 1993, which deemed as "filed" the 32 Amended Informations

against petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the
Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly
committed by her favoring "unqualified" aliens with the benefits of the Alien
Legalization Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and
prohibition, docketed as G.R. No. 99289-99290 (Santiago v. Vasquez, 205
SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with
Criminal Case No. 16698 on the ground that said case was intended solely to
harass her as she was then a presidential candidate. She alleged that this
was in violation of Section 10, Article IX-C of the Constitution which provides
that "(b)ona fide candidates for any public office shall be free from any form
of harassment and discrimination." The petition was dismissed on January
13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding
Justice Garchitorena, which motion was set for hearing on November 13,
1992 at 8:00 A.M. (Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which Presiding
Justice Garchitorena is a member, set the criminal case for arraignment on
November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the
grounds that there was a pending motion for inhibition, and that petitioner
intended to file a motion for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion
to defer the arraignment (Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a bill of particulars
(Rollo, pp. 47-48). The motion stated that while the information alleged that
petitioner had approved the application or legalization of "aliens" and gave
them indirect benefits and advantages it lacked a list of the favored aliens.
According to petitioner, unless she was furnished with the names and
identities of the aliens, she could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed
the Sandiganbayan (First Division) to reset the arraignment to a later date
and to dispose of the two incidents pending before it (Re: disqualification of
Presiding Justice Garchitorena and the motion for the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars,
the prosecution stated categorically that they would file only one amended
information against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to
18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned
Resolution dated March 11, 1993, denying the motion for his disqualification
(Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a
resolution, admitting the 32 Amended Informations and ordering petitioner to
post the corresponding bail bonds within ten days from notice (Rollo, pp.
165-185). Petitioner's arraignment on the 32 Amended Informations was set
for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued the
Resolution dated March 25, 1993, ordering Presiding Justice Garchitorena "to
CEASE and DESIST from sitting in the case until the question of his
disqualification is finally resolved by this Court and from enforcing the
resolution dated March 11, 1993, ordering petitioner to post bail bonds for
the 32 Amended Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is based on
the publication of is letter in the July 29, 1992 issue of the Philippine Star,
which to petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be

expected to change the conclusions he has subconsciously drawn in his

public statements . . . when he sits in judgment on the merits of the
case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an item in Teodoro
Benigno's column in the July 22, 1992 issue of the Philippine Star, criticizing
the Sandiganbayan for issuing on July 11, 1992 a hold-departure order
against petitioner. Benigno wrote that said order reflected a "perverse
morality" of the Sandiganbayan and the lack of "legal morality" of its
Presiding Justice, thus:
I cannot, for example accept the legal morality of Sandiganbayan
Justice Francis Garchitorena who would stop Miriam Defensor
Santiago from going abroad for a Harvard scholarship because of
graft charges against her. Some of the most perfidious Filipinos I
know have come and gone, left and returned to these shores
without Mr. Garchitorena kicking any kind of rumpus. Compared
to the peccadilloes of this country's outstanding felons, what
Miriam is accused of is kindergarten stuff. The Sandiganbayan
Supremo got a lot of headlines for stopping Miriam but I contend
this is the kind of perverse morality we can do without (Rollo, p.
156).
The portion of the letter of Presiding Justice Garchitorena, which petitioner
finds objectionable, reads as follows:
(c) Mrs. Santiago has never informed any court where her cases
are pending of her intention to travel, whether the Regional Trial
Court where she is charged with soliciting donations from people
transacting with her office at Immigration or before the
Sandiganbayan where she is charged with having favored
unqualified aliens with the benefits of the Alien Legalization
Program nor even the Supreme Court where her petition is still
pending (Rollo, p. 158).
In particular, petitioner considered as prejudgment the statement of
Presiding Justice Garchitorena that petitioner had been charged before the
Sandiganbayan "with having favored unqualified aliens with the benefits of
the Alien Legalization Program."

The statement complained of was just a restatement of the Information filed

against petitioner in Criminal Case No. 16698 in connection with which the
hold-departure order was issued. Said Information specified the act
constituting the offense charged, thus:
That on or about October 17, 1988, or for sometime prior or
subsequent thereto, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Miriam DefensorSantiago, being then the Commissioner of the Commission on
Immigration and Deportation, with evident bad faith and
manifest partiality, did then and there willfully, unlawfully and
criminally approve the application for legalization of aliens who
arrived in the Philippines after January 1, 1984 in violation of
Executive Order No. 324 dated April 13, 1988 which does not
allow the legalization of the same, thereby causing undue injury
to the government and giving unwarranted benefits and
advantages to said aliens in the discharge of the official and
administrative functions of said accused (Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing the
permission of the Sandiganbayan, prompting it to issue the hold-departure
order which Benigno viewed as uncalled for. The letter of Presiding Justice
Garchitorena, written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing criminal charges in
court, with no exception, have to secure permission to leave the country.
Nowhere in the letter is the merit of the charge against petitioner ever
touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into consideration
that the Sandiganbayan sits in three divisions with three justices in each
division. Unanimity among the three members is mandatory for arriving at
any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character of
the Sandiganbayan thus renders baseless petitioner's fear of prejudice and
bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29
SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process were
violated by reason of the delay in the termination of the preliminary

investigation. According to her, while the offense was allegedly committed

"on or before October 17, 1988", the information was filed only on May 9,
1991 and the amended informations on December 8, 1992 (Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's
case. In Tatad, there indeed was an unexplained inaction on the part of the
public prosecutors inspite of the simplicity of the legal and factual issues
involved therein.
In the case at bench, there was a continuum of the investigatory process but
it got snarled because of the complexity of the issues involved. The act
complained of in the original information came to the attention of the
Ombudsman only when it was first reported in the January 10, 1989 issue of
the Manila Standard. Immediately thereafter, the investigatory process was
set in motion. The investigation was first assigned to Special Prosecutor
Gualberto dela Llana but on request of petitioner herself the investigation
was first assigned to Special Prosecutor Gualberto dela Llana but on request
of petitioner herself the investigation was re-assigned to the Office of the
Deputy Ombudsman for Luzon. The case was handled by a panel of four
prosecutors, who submitted a draft resolution for the filing of the charges on
March 29, 1990. The draft resolution had to undergo the hierarchy of review,
normal for a draft resolution with a dissenting vote, until it reached the
Ombudsman in March 1991.
We note that petitioner had previously filed two petitions before us involving
Criminal
Case
No.
16698
(G.R.
Nos.
99289-99290;
G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of
delay in the preliminary investigation and the filing of the information against
her in those petitions. a piece-meal presentation of issues, like the splitting
of causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge any
offense punishable under Section 3 (e) of R.A. No. 3019 because the official
acts complained of therein were authorized under Executive Order No. 324
and that the Board of Commissioners of the Bureau of Investigation adopted
the policy of approving applications for legalization of spouses and
unmarried, minor children of "qualified aliens" even though they had arrived
in the Philippines after December 31, 1983. she concludes that the
Sandiganbayan erred in not granting her motion to quash the informations
(Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of

fact in the information (People v. Supnad, 7 SCRA 603 [1963] ). Therefore,
petitioner admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of
aliens, who arrived in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest partiality in the
execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense
defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under
Executive Order No. 324, that petitioner merely followed in good faith the
policy adopted by the Board of Commissioners and that the aliens were
spouses or unmarried minor children of persons qualified for legalization of
stay, are matters of defense which she can establish at the trial.
Anent petitioner's claim that the Amended Informations did not allege that
she had caused "undue injury to any party, including the Government," there
are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a) by
causing undue injury to any party, including the Government; and (b) by
giving any private party any unwarranted benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
The use of the distinctive term "or" connotes that either act
qualifies as a violation of Section 3 (a). In other words the act of
giving any private party any unwarranted benefit, advantage or
preference is not an indispensable element of the offense of
"causing any undue injury to any party" as claimed by petitioners
although there may be instances where both elements concur.
Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the

petition that the public prosecutors filed 32 Amended Informations against
petitioner, after manifesting to the Sandiganbayan that they would only file
one amended information (Rollo, pp. 6-61). We also noted that petitioner
questioned in her opposition to the motion to admit the 32 Amended
Informations, the splitting of the original information (Rollo, pp. 127-129). In
the furtherance of justice, we therefore proceed to inquire deeper into the
validity of said plant, which petitioner failed to pursue with vigor in her
petition.
We find that, technically, there was only one crime that was committed in
petitioner's case, and hence, there should only be one information to be file
against her.
The 32 Amended Informations charge what is known as delito continuado or
"continued crime" and sometimes referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be
borne in mind that the concept ofdelito continuado has been a vexing
problem in Criminal Law difficult as it is to define and more difficult to
apply.
According to Cuello Calon, for delito continuado to exist there should be a
plurality of acts performed during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which means that two or
more violations of the same penal provisions are united in one and same
instant or resolution leading to the perpetration of the same criminal purpose
or
aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of several
crimes but in reality there is only one crime in the mind of the perpetrator
(Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science
and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one
criminal intent or resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only
one offense the following cases:

(1) The theft of 13 cows belonging to two different owners

committed by the accused at the same time and at the same
period of time (People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners
from the same coop and at the same period of time (People v.
Jaranillo, 55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on the same
occasion (People v. De Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer
every time he collects veteran's benefits on behalf of a client,
who agreed that the attorney's fees shall be paid out of said
benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The collection
of the legal fees were impelled by the same motive, that of
collecting fees for services rendered, and all acts of collection
were made under the same criminal impulse (People v. Lawas, 97
Phil. 975 [1955] ).
On the other hand, we declined to apply the concept to the following cases:
(1) Two estafa cases, one of which was committed during the
period from January 19 to December 1955 and the other from
January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306
[1961] ). The said acts were committed on two different
occasions.
(2) Several malversations committed in May, June and July, 1936,
and falsifications to conceal said offenses committed in August
and October 1936. The malversations and falsifications "were not
the result of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).
(3) Two estafa cases, one committed in December 1963 involving
the failure of the collector to turn over the installments for a
radio and the other in June 1964 involving the pocketing of the
installments for a sewing machine (People v. Ledesma, 73 SCRA
77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of

collections from customers of the employer made on different
dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal
Code, has been applied to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services
rendered following up claims for war veteran's benefits (People v. Sabbun, 10
SCRA 156 [1964] ).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary
to special laws, unless the latter provide the contrary. Hence, legal principles
developed from the Penal Code may be applied in a supplementary capacity
to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time
creates a single offense or separate offenses has troubled also American
Criminal Law and perplexed American courts as shown by the several
theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine,
that is, the taking of several things, whether belonging to the same or
different owners, at the same time and place constitutes but one larceny.
Many courts have abandoned the "separate larceny doctrine," under which
there is a distinct larceny as to the property of each victim. Also abandoned
was the doctrine that the government has the discretion to prosecute the
accused or one offense or for as many distinct offenses as there are victims
(annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the
commission of the different criminal acts as but one continuous act involving
the same "transaction" or as done on the same "occasion" (State v.
Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45
NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the constitutional
guarantee against putting a man in jeopardy twice for the same offense
(Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is a
humane rule, since if a separate charge could be filed for each act, the
accused may be sentenced to the penitentiary for the rest of his life
(Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with

performing a single criminal act that of her approving the application for
legalization of aliens not qualified under the law to enjoy such privilege.
The original information also averred that the criminal act : (i) committed by
petitioner was in violation of a law Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the
Government, and (iii) was done on a single day, i.e., on or about October 17,
1988.
The 32 Amended Informations reproduced verbatim the allegation of the
original information, except that instead of the word "aliens" in the original
information each amended information states the name of the individual
whose stay was legalized.
At the hearing of the motion for a bill of particulars, the public prosecutors
manifested that they would file only one amended information embodying
the legalization of stay of the 32 aliens. As stated in the Order dated
November 12, 1992 of the Sandiganbayan (First Division):
On the matter of the Bill of Particulars, the prosecution has
conceded categorically that the accusation against Miriam
Defensor Santiago consists of one violation of the law
represented by the approval of the applications of 32 foreign
nationals for availment (sic) of the Alien Legalization Program. In
this respect, and responding directly to the concerns of the
accused through counsel, the prosecution is categorical that
there will not be 32 accusations but only one . . . (Rollo, p. 59).
The 32 Amended Informations aver that the offenses were committed on the
same period of time, i.e., on or about October 17, 1988. The strong
probability even exists that the approval of the application or the legalization
of the stay of the 32 aliens was done by a single stroke of the pen, as when
the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for a
bill of particulars that the Government suffered a single harm or injury. The
Sandiganbayan in its Order dated November 13, 1992 stated as follows:
. . . Equally, the prosecution has stated that insofar as the
damage and prejudice to the government is concerned, the same

is represented not only by the very fact of the violation of the law
itself but because of the adverse effect on the stability and
security of the country in granting citizenship to those not
qualified (Rollo, p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698
of the Sandiganbayan (First Division) is AFFIRMED and its Resolution dated
March 11, 1993 in Criminal Case No. 16698 is MODIFIED in the sense that the
Office of the Special Prosecutor of the Office of the Ombudsman is directed
to consolidate the 32 Amended Informations (Criminal Cases Nos. 18371 to
18402) into one information charging only one offense under the original
case number, i.e., No. 16698. The temporary restraining order issued by this
Court on March 25, 1993 is LIFTED insofar as to the disqualification of
Presiding Justice Francis Garchitorena is concerned.
SO ORDERED.
SANTIAGO PAERA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.
DECISION
CARPIO, J.:
The Case
This resolves the petition for review[1] of the ruling[2] of the Regional Trial
Court of Dumaguete City[3] (RTC) finding petitioner Santiago Paera guilty of
three counts of Grave Threats, in violation of Article 282 of the Revised Penal
Code (RPC).
The Facts
As punong barangay of Mampas, Bacong, Negros Oriental, petitioner
Santiago Paera (petitioner) allocated his constituents' use of communal
water coming from a communal tank by limiting distribution to the residents
of Mampas, Bacong. The tank sits on a land located in the neighboring
barangay of Mampas, Valencia and owned by complainant Vicente Darong
(Vicente), father of complainant Indalecio Darong (Indalecio). Despite
petitioner's scheme, Indalecio continued drawing water from the tank. On 7
April 1999, petitioner reminded Indalecio of the water distribution scheme
and
cut
Indalecio's
access.

The following day, petitioner inspected the tank after constituents

complained of water supply interruption. Petitioner discovered a tap from the
main line which he promptly disconnected. To stem the flow of water from
the ensuing leak, petitioner, using a borrowed bolo, fashioned a wooden
plug. It was at this point when Indalecio arrived. What happened next is
contested
by
the
parties.
According to the prosecution, petitioner, without any warning, picked-up his
bolo and charged towards Indalecio, shouting "Patyon tikaw!" (I will kill you!).
Indalecio ran for safety, passing along the way his wife, Diosetea Darong
(Diosetea) who had followed him to the water tank. Upon seeing petitioner,
Diosetea inquired what was the matter. Instead of replying, petitioner
shouted "Wala koy gipili, bisag babaye ka, patyon tikaw!" ("I don't spare
anyone, even if you are a woman, I will kill you!"). Diosetea similarly
scampered and sought refuge in the nearby house of a relative. Unable to
pursue Diosetea, petitioner turned his attention back to Indalecio. As
petitioner chased Indalecio, he passed Vicente, and, recognizing the latter,
repeatedly thrust his bolo towards him, shouting "Bisaggulang ka, buk-on
nako imo ulo!" ("Even if you are old, I will crack open your skull!").
According to petitioner, however, it was Indalecio who threatened him with a
bolo, angrily inquiring why petitioner had severed his water connection. This
left petitioner with no choice but to take a defensive stance using the
borrowed
bolo,
prompting
Indalecio
to
scamper.
Except for Vicente, who was seriously ill, the Darongs testified during trial.
Petitioner was the defense's lone witness.
The Ruling of the Municipal Circuit Trial Court
The 7th Municipal Circuit Trial Court of Valencia-Bacong, Negros Oriental
(MCTC) found petitioner guilty as charged, ordering petitioner to serve time
and pay fine for each of the three counts.[4] The MCTC found the prosecution
evidence sufficient to prove the elements of Grave Threats under Article 282,
noting that the Darongs' persistent water tapping contrary to petitioner's
directive "must have angered" petitioner, triggering his criminal behavior.
[5]
The MCTC rejected petitioner's defense of denial as "self-serving and
uncorroborated."[6]
Petitioner appealed to the RTC, reiterating his defense of denial.
Ruling of the Regional Trial Court
The RTC affirmed the MCTC, sustaining the latter's finding on petitioner's
motive. The RTC similarly found unconvincing petitioner's denial in light of

the "clear, direct, and consistent" testimonies of the Darongs and other
prosecution
witnesses.[7]
Hence,

this

appeal.

Abandoning his theory below, petitioner now concedes his liability but only
for a single count of the "continued complex crime" of Grave Threats.
Further, petitioner prays for the dismissal of the case filed by Vicente as the
latter's failure to testify allegedly deprived him of his constitutional right to
confront witnesses. Alternatively, petitioner claims he is innocent of the
charges for having acted in defense of the property of strangers and in lawful
performance of duty, justifying circumstances under paragraphs 3 and 5,
Article
11
of
the
RPC.[8]
In its Comment, the Office of the Solicitor General (OSG) finds merit in
petitioner's concession of liability for the single count of the "continued
complex crime" of Grave Threats. The OSG, however, rejects petitioner's
prayer for the dismissal of Vicente's complaint, arguing that petitioner's guilt
was amply proven by the prosecution evidence, not to mention that
petitioner failed to raise this issue during trial. Further, the OSG finds the
claim of defense of stranger unavailing for lack of unlawful aggression on the
part of the Darongs. Lastly, the OSG notes the absence of regularity in
petitioner's performance of duty to justify his conduct.[9]
The Issue
The question is whether petitioner is guilty of three counts of Grave Threats.
The Ruling of the Court
We rule in the affirmative, deny the petition and affirm the RTC.
Due
Process
New Issues on Appeal

Mischief

in

Raising

Although uncommented, petitioner's adoption of new theories for the first

time before this Court has not escaped our attention. Elementary principles
of due process forbid this pernicious procedural strategy - it not only catches
off-guard the opposing party, it also denies judges the analytical benefit
uniform theorizing affords. Thus, courts generally refuse to pass upon freshly
raised theories.[10] We would have applied this rule here were it not for the
fact that petitioner's liberty is at stake and the OSG partially views his cause
with favor.
Petitioner
of Grave Threats

Liable

for

Three

Counts

To limit his liability to one count of Grave Threats, petitioner tries to fit the
facts of the case to the concept of "continued crime" (delito continuado)
which envisages a single crime committed through a series of acts arising
from one criminal intent or resolution.[11] To fix the penalty for his supposed
single continued crime, petitioner invokes the rule for complex crime under
Article 48 of the RPC imposing the penalty for the most serious crime,
applied
in
its
maximum
period.
The nature of the crime of Grave Threats and the proper application of the
concepts of continued and complex crimes preclude the adoption of
petitioner's
theory.
Article 282 of the RPC holds liable for Grave Threats "any person who shall
threaten another with the infliction upon the person x x x of the latter or his
family of any wrong amounting to a crime[.]" This felony is consummated "as
soon as the threats come to the knowledge of the person threatened." [12]
Applying these parameters, it is clear that petitioner's threat to kill Indalecio
and Diosetea and crack open Vicente's skull are wrongs on the person
amounting to (at the very least) homicide and serious physical injuries as
penalized under the RPC. These threats were consummated as soon as
Indalecio, Diosetea, and Vicente heard petitioner utter his threatening
remarks. Having spoken the threats at different points in time to these three
individuals, albeit in rapid succession, petitioner incurred three separate
criminal
liabilities.
Petitioner's theory fusing his liability to one count of Grave Threats because
he only had "a single mental resolution, a single impulse, and single
intent"[13] to threaten the Darongs assumes a vital fact: that he had
foreknowledge of Indalecio, Diosetea, and Vicente's presence near the water
tank in the morning of 8 April 1999. The records, however, belie this
assumption. Thus, in the case of Indalecio, petitioner was as much surprised
to see Indalecio as the latter was in seeing petitioner when they chanced
upon each other near the water tank. Similarly, petitioner came across
Diosetea as he was chasing Indalecio who had scampered for safety. Lastly,
petitioner crossed paths with Vicente while running after Indalecio. Indeed,
petitioner went to the water tank not to execute his "single intent" to
threaten Indalecio, Diosetea, and Vicente but to investigate a suspected
water tap. Not having known in advance of the Darongs' presence near the
water tank at the time in question, petitioner could not have formed any
intent to threaten any of them until shortly before he inadvertently came
across
each
of
them.
The importance of foreknowledge of a vital fact to sustain a claim of
"continued crime" undergirded our ruling in Gamboa v. Court of Appeals.

[14]

There, the accused, as here, conceded liability to a lesser crime - one

count of estafa, and not 124 as charged - theorizing that his conduct was
animated by a single fraudulent intent to divert deposits over a period of
several months. We rejected the claim [f]or the simple reason that [the accused] was not possessed of any foreknowledge of any deposit by any customer on any day or occasion and which
would pass on to his possession and control. At most, his intent to
misappropriate may arise only when he comes in possession of the deposits
on each business day but not in futuro, since petitioner company operates
only on a day-to-day transaction. As a result, there could be as many acts of
misappropriation as there are times the private respondent abstracted
and/or diverted the deposits to his own personal use and benefit. [15] x x x x
(Emphasis supplied)
Similarly, petitioner's intent to threaten Indalecio, Diosetea, and Vicente with
bodily harm arose only when he chanced upon each of his victims.
Indeed, petitioner's theory holds water only if the facts are altered - that is,
he threatened Indalecio, Diosetea, and Vicente at the same place and at the
same time. Had this been true, then petitioner's liability for one count of
Grave Threats would have rested on the same basis grounding our rulings
that the taking of six roosters [16] or 13 cows[17] found at the same place and
taken at the same time results in the commission of only one count of theft
because [t]here is no series of acts committed for the accomplishment of different
purposes, but only of one which was consummated, and which determines
the existence of only one crime. The act of taking the roosters [and heads of
cattle] in the same place and on thesame occasion cannot give rise to two
crimes having an independent existence of their own, because there are not
two distinct appropriations nor two intentions that characterize two separate
crimes.[18] (Emphasis in the original)
Having disposed of petitioner's theory on the nature of his offense, we see no
reason to extensively pass upon his use of the notion of complex crime to
avail of its liberal penalty scheme. It suffices to state that under Article 48 of
the RPC, complex crimes encompass either (1) an act which constitutes two
or more grave or less grave offenses; or (2) an offense which is a necessary
means for committing another[19] and petitioner neither performed a single
act resulting in less or less grave crimes nor committed an offense as a
means of consummating another.
The
Prosecution
Proved
of Grave Threats Against Vicente

the

Commission

We find no reversible error in the RTC's affirmance of the MCTC's ruling,

holding petitioner liable for Grave Threats against Vicente. The prosecution's
evidence, consisting of the testimonies of Indalecio, Diosetea and two other
corroborating witnesses,20 indisputably show petitioner threatening Vicente
with death.[21] Vicente's inability to take the stand, for documented medical
reason,[22] does not detract from the veracity and strength of the prosecution
evidence. Petitioner's claim of denial of his constitutional right to confront
witnesses is untenable as he had every opportunity to cross-examine the
four prosecution witnesses. No law requires the presentation of the private
complainant as condition for finding guilt for Grave Threats, especially if, as
here, there were other victims and witnesses who attested to its commission
against the non-testifying complainant. Significantly, petitioner did not raise
Vicente's non-appearance as an issue during the trial, indicating that he saw
nothing significant in the latter's absence.
No
Justifying
Circumstances
Commission of Grave Threats

Attended

Petitioner's

There is likewise no merit in petitioner's claim of having acted to "defend[]

and protect[] the water rights of his constituents" in the lawful exercise of his
office as punong barangay.[23] The defense of stranger rule under paragraph
3, Article 11 of the RPC, which negates criminal liability of [a]nyone who acts in the defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending be not
induced by revenge, resentment or other evil motive.
requires proof of (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel it; and (3)
absence of evil motives such as revenge and resentment. [24] None of these
requisites obtain here. Not one of the Darongs committed acts of aggression
against third parties' rights when petitioner successively threatened them
with bodily harm. Indeed, all of them were performing ordinary, peaceful acts
- Indalecio was standing near the water tank, Diosetea was walking towards
Indalecio and Vicente was standing in the vegetable garden a few meters
away. With the element of unlawful aggression absent, inquiry on the
reasonableness of the means petitioner used to prevent or repel it is
rendered irrelevant. As for the third requisite, the records more than support
the conclusion that petitioner acted with resentment, borne out of the
Darongs' repeated refusal to follow his water distribution scheme, causing
him to lose perspective and angrily threaten the Darongs with bodily harm.
Lastly, the justifying circumstance of fulfillment of duty or exercise of office
under the 5th paragraph of Article 11 of the RPC lies upon proof that the

offense committed was the necessary consequence of the due performance

of duty or the lawful exercise of office.[25] Arguably, petitioner acted in the
performance of his duty to "ensure delivery of basic services" [26] when he
barred the Darongs' access to the communal water tank. Nevertheless,
petitioner exceeded the bounds of his office when he successively chased
the Darongs with a bladed weapon, threatening harm on their persons, for
violating his order. A number of options constituting lawful and due discharge
of his office lay before petitioner[27] and his resort to any of them would have
spared him from criminal liability. His failure to do so places his actions
outside of the ambit of criminally immune official conduct. Petitioner ought to
know that no amount of concern for the delivery of services justifies use by
local
elective
officials
of
violence
or
threats
of
violence.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 28
November 2007 of the Regional Trial Court of Dumaguete City, Branch 39.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO V.
HERNANDEZ, ET AL.,Defendants-Appellants.
RESOLUTION
CONCEPCION, J.:
This refers to the petition for bail filed by Defendant Appellant Amado
Hernandez on June 26, 1954, and renewed on December 22, 1955. A similar
petition, filed on December 28, 1953, had been denied by a resolution of this
court dated February 2, 1954. Although not stated in said resolution, the
same was due mainly to these circumstances:chanroblesvirtuallawlibrary The
prosecution maintains that Hernandez is charged with, and has been
convicted of, rebellion complexed with murders, arsons and robberies, for
which the capital punishment, it is claimed, may be imposed, although the
lower court sentenced him merely to life imprisonment. Upon the other hand,
the defense contends, among other things, that rebellion cannot be
complexed with murder, arson, or robbery. Inasmuch as the issue thus raised
had not been previously settled squarely, and this court was then unable, as
yet, to reach a definite conclusion thereon, it was deemed best not to
disturb, for the time being, the course of action taken by the lower court,
which denied bail to the movant. After mature deliberation, our considered
opinion on said issue is as follows:chanroblesvirtuallawlibrary
The first two paragraphs of the amended information in this case
read:chanroblesvirtuallawlibrary
The undersigned accuses (1) Amado V. Hernandez alias Victor alias Soliman
alias Amado alias AVH alias Victor Soliman, (2) Guillermo Capadocia alias
Huan Bantiling alias Cap alias G. Capadocia, (3) Mariano P. Balgos alias Bakal

alias Tony Collantes alias Bonifacio, (4) Alfredo Saulo alias Elias alias Fred
alias A.B.S. alias A.B., (5) Andres Baisa, Jr. alias Ben alias Andy (6) Genaro de
la Cruz alias Gonzalo alias Gorio alias Arong, (7) Aquilino Bunsol alias Anong,
(8) Adriano Samson alias Danoy, (9) Juan J. Cruz alias Johnny 2, alias Jessie
Wilson alias William, (10) Jacobo Espino, (11) Amado Racanday, (12) Fermin
Rodillas, and (13) Julian Lumanog alias Manue, of the crime of rebellion with
multiple
murder,
arsons
and
robberies
committed
as
follows:chanroblesvirtuallawlibrary
That on or about March 15, 1945, and for some time before the said date
and continuously thereafter until the present time, in the City of Manila,
Philippines, and the place which they had chosen as the nerve center of all
their rebellious activities in the different parts of the Philippines, the said
accused, conspiring, confederating, and cooperating with each other, as well
as with the thirty-one (31) Defendants charged in criminal cases Nos. 14071,
14082, 14270, 14315, and 14344 of the Court of First Instance of Manila
(decided May 11, 1951) and also with others whose whereabouts and
identities are still unknown, the said accused and their co-conspirators, being
then officers and/or members of, or otherwise associated with the Congress
of Labor Organizations (CLO) formerly known as the Committee on Labor
Organization (CLO), an active agency, organ, and instrumentality of the
Communist Party of the Philippines (P.K.P.), with central offices in Manila and
chapters and affiliated or associated labor unions and other mass
organizations in different places in the Philippines, and as such agency,
organ, and instrumentality, fully cooperates in, and synchronizes its activities
with the rebellious activities of the Hukbong Magpalayang Bayan, (H.M.B.)
and other organs, agencies, and instrumentalities of the Communist Party of
the Philippines (P.K.P.) to thereby assure, facilitate, and effect the complete
and permanent success of the armed rebellion against the Republic of the
Philippines, as the herein Defendants and their co-conspirators have in fact
synchronized the activities of the CLO with the rebellious activities of the
HMB and other agencies, organs and instrumentalities of the Communist
Party of the Philippines and have otherwise master- minded or promoted the
cooperative efforts between the CLO and HMB and other agencies, organs,
and instrumentalities of the P.K.P. in the prosecution of the rebellion against
the Republic of the Philippines, and being then also high ranking officers
and/or members of, or otherwise affiliated with, the Communist Party of the
Philippines (P.K.P.), which is now actively engaged in an armed rebellion
against the Government of the Philippines through acts therefor committed
and planned to be further committed in Manila and other places in the
Philippines, and of which party the Hukbong Mapagpalaya ng Bayan (HMB),
otherwise or formerly known as the Hukbalahaps (Huks), is the armed force,
did then and there willfully, unlawfully and feloniously help, support,
promote, maintain, cause, direct and/or command the Hukbong
Mapagpalaya ng Bayan (HMB) or the Hukbalahaps (Huks) to rise publicly
and take arms against the Republic of the Philippines, or otherwise

participate in such armed public uprising, for the purpose of removing the
territory of the Philippines from the allegiance to the government and laws
thereof as in fact the said Hukbong Mapagpalaya ng Bayan or
Hukbalahaps have risen publicly and taken arms to attain the said purpose
by then and there making armed raids, sorties and ambushes, attacks
against police, constabulary and army detachments as well as innocent
civilians, and as a necessary means to commit the crime of rebellion, in
connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and spread chaos,
disorder, terror, and fear so as to facilitate the accomplishment of the
aforesaid purpose, as follows, to wit:chanroblesvirtuallawlibrary
Then follows a description of the murders, arsons and robberies allegedly
perpetrated by the accused as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof.
Article
48
of
the
that:chanroblesvirtuallawlibrary

Revised

Penal

Code

provides

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, the penalty
for the most serious crime shall be imposed, the same to be applied in its
maximum period.
It is obvious, from the language of this article, that the same presupposes
the commission of two (2) or more crimes, and, hence, does not apply when
the culprit is guilty of only one crime.
Article 134 of said code reads:chanroblesvirtuallawlibrary
The crime of rebellion or insurrection is committed by rising publicly and
taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Philippine
Islands or any part thereof, of any body of land, naval or other armed forces,
or of depriving the Chief Executive or the Legislature, wholly or partially, of
any of their powers or prerogatives.
Pursuant to Article 135 of the same code any person, merely participating
or executing the commands of others in a rebellion shall suffer the penalty of
prision mayor in its minimum period.
The penalty is increased to prision mayor and a fine not to exceed P20,000
for any person who promotes, maintains or heads a rebellion or insurrection
or who, while holding any public office or employment, takes part
therein:chanroblesvirtuallawlibrary
1. engaging in war against the forces of the government,
2. destroying property, or
3. committing serious violence,

4. exacting contributions or
5. diverting public funds from the lawful purpose for which they have been
appropriated.
Whether performed singly or collectively, these five (5) classes of acts
constitute only one offense, and no more, and are, altogether, subject to only
one penalty prision mayor and a fine not to exceed P20,000. Thus for
instance, a public officer who assists the rebels by turning over to them, for
use in financing the uprising, the public funds entrusted to his custody, could
neither be prosecuted for malversation of such funds, apart from rebellion,
nor accused and convicted of the complex crime of rebellion with
malversation of public funds. The reason is that such malversation is
inherent in the crime of rebellion committed by him. In fact, he would not be
guilty of rebellion had he not so misappropriated said funds. In the
imposition, upon said public officer, of the penalty for rebellion it would even
be improper to consider the aggravating circumstance of advantage taken by
the offender of his public position, this being an essential element of the
crime he had perpetrated. Now, then, if the office held by said offender and
the nature of the funds malversed by him cannot aggravate the penalty for
his offense, it is clear that neither may it worsen the very crime committed
by the culprit by giving rise, either to an independent crime, or to a complex
crime. Needless to say, a mere participant in the rebellion, who is not a
public officer, should not be placed at a more disadvantageous position than
the promoters, maintainers or leaders of the movement, or the public officers
who join the same, insofar as the application of Article 48 is concerned.
One of the means by which rebellion may be committed, in the words of said
Article 135, is by engaging in war against the forces of the government
and committing serious violence in the prosecution of said war. These
expressions
imply
everything
that
war
connotes,
namely; chan
roblesvirtualawlibraryresort to arms, requisition of property and services,
collection of taxes and contributions, restraint of liberty, damage to property,
physical injuries and loss of life, and the hunger, illness and unhappiness that
war leaves in its wake except that, very often, it is worse than war in the
international sense, for it involves internal struggle, a fight between brothers,
with a bitterness and passion or ruthlessness seldom found in a contest
between strangers. Being within the purview of engaging in war and
committing serious violence, said resort to arms, with the resulting
impairment or destruction of life and property, constitutes not two or more
offense, but only one crime that of rebellion plain and simple. Thus, for
instance, it has been held that the crime of treason may be committed by
executing either a single or similar intentional overt acts, different or similar
but distinct, and for that reason, it may be considered one single continuous
offense. (Guinto vs. Veluz, 77 Phil., 801, 44 Off. Gaz., 909.) (People vs.
Pacheco, 93 Phil., 521.)

Inasmuch as the acts specified in said Article 135 constitute, we repeat, one
single crime, it follows necessarily that said acts offer no occasion for the
application of Article 48, which requires therefor the commission of, at least,
two crimes. Hence, this court has never in the past, convicted any person of
the complex crime of rebellion with murder. What is more, it appears that
in every one of the cases of rebellion published in the Philippine Reports,
the Defendantswere convicted of simple rebellion, although they had killed
several persons, sometimes peace officers (U. S. vs. Lagnason, 3 Phil.,
472; chan roblesvirtualawlibraryU. S. vs. Baldello, 3 Phil., 509, U. S. vs. Ayala,
6 Phil., 151; chan roblesvirtualawlibraryLeague vs. People, 73 Phil., 155).
Following a parallel line are our decisions in the more recent cases of
treason, resulting from collaboration with the Japanese during the war in the
Pacific. In fact, said cases went further than the aforementioned cases of
rebellion, in that the theory of the prosecution to the effect that the accused
in said treason cases were guilty of the complex crime of treason with
murder and other crimes was expressly and repeatedly rejected therein.
Thus, commenting on the decision of the Peoples Court finding the accused
in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329) guilty of cralaw the
crime of treason complexed by murder and physical injuries and sentencing
him to death, and on the contention of the Solicitor General that Prieto had
committed the complex crime of treason with homicide, this court,
speaking through Mr. Justice Tuason, said:chanroblesvirtuallawlibrary
The execution of some of the guerrilla suspects mentioned in these counts
and the infliction of physical injuries on others are not offenses separate from
treason. Under the Philippine treason law and under the United States
constitution defining treason, after which the former was patterned, there
must concur both adherence to the enemy and giving him aid and comfort.
One without the other does not make treason.
In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action. Its very nature partakes, of a deed or
physical activity as opposed to a mental operation. (Cramer vs. U.S., ante.)
This deed or physical activity may be, and often is, in itself a criminal offense
under another penal statute or provision. Even so, when the deed is charged
as an element of treason it becomes identified with the latter crime and
cannot be the subject of a separate punishment, or used in combination with
treason to increase the penalty as Article 48 of the Revised Penal Code
provides. Just as one cannot be punished for possessing opium in a
prosecution for smoking the identical drug, and a robber cannot be held
guilty of coercion or trespass to a dwelling in a prosecution for robbery,
because possession of opium and force and trespass are inherent in smoking
and in robbery respectively, so may not a Defendant be made liable for
murder as a separate crime or in conjunction with another offense where, as
in this case, it is averred as a constitutive ingredient of treason cralaw .
Where murder or physical injuries are charged as overt acts of

treason cralaw they cannot be regarded separately under their general

denomination. (Italics supplied.)
Accordingly, we convicted the accused of simple treason and sentenced him
to life imprisonment.
In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159, we used
the following language:chanroblesvirtuallawlibrary
The lower court found Appellant guilty not only of treason, but of murder,
for the killing of Tomas Abella, and, following the provisions of Article 48 of
the Revised Penal Code sentenced him to death, the maximum penalty
provided by article 114.
The lower court erred in finding Appellant guilty of the murder of Tomas
Abella. The arrest and killing of Tomas Abella for being a guerilla, is alleged in
count 3 of the information, as one of the elements of the crime of treason for
which Appellant is prosecuted. Such element constitute a part of the legal
basis upon which Appellant stands convicted of the crime of treason. The
killing of Tomas Abella cannot be considered as legal ground for
convicting Appellant of any crime other than treason. The essential elements
of a given crime cannot be disintegrated in different parts, each one stand as
a separate ground to convict the accused of a different crime or criminal
offense. The elements constituting a given crime are integral and
inseparable parts of a whole. In the contemplation of the law, they cannot be
used for double or multiple purposes. They can only be used for the sole
purpose of showing the commission of the crime of which they form part. The
factual complexity of the crime of treason does not endow it with the
functional ability of worm multiplication or amoeba reproduction. Otherwise,
the accused will have to face as many prosecutions and convictions as there
are elements in the crime of treason, in open violation of the constitutional
prohibition against double jeopardy. (Italics supplied.)
The same conclusion was reached in People vs. Alibotod 82 Phil., 164, 46 Off.
Gaz., 1005, despite the direct participation of the Defendant therein in the
maltreatment and killing of several persons.
In People vs. Vilo 82 Phil.,
held:chanroblesvirtuallawlibrary

524,

46

Off.

Gaz.,

2517,

we

The Peoples Court, however, erred in classifying the crime as treason with
murder. The killing of Amado Satorre and one Segundo is charged as an
element of treason, and it therefore becomes identified with the latter crime,
and cannot be the subject of a separate punishment or used in combination
with treason to increase the penalty as Article 48 of the Revised Penal Code
provides. (People vs. Prieto, L-399, 45 Off. Gaz. 3329. See, also People vs.
Labra, L-886, 46 Off. Gaz., [Supp. to No. 1], 159.) (Italics supplied.)
To the same effect was our decision in People vs. Roble 83 Phil., 1, 46 Off.
Gaz., 4207. We stated therein:chanroblesvirtuallawlibrary

The court held that the facts alleged in the information is a complex crime
of treason with murders, with the result that the penalty provided for the
most serious offense was to be imposed on its maximum degree. Viewing the
case from the standpoint of modifying circumstances, the court believed that
the same result obtained. It opined that the killings were murders qualified
by treachery and aggravated by the circumstances of evident premeditation,
superior strength, cruelty, and an armed band.
We think this is error. The tortures and murders set forth in the information
are merged in and formed part of the treason. They were in this case the
overt acts which, besides traitorous intention supplied a vital ingredient in
the crime. (Italics supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213, had been
convicted by the Peoples Court of the crime of treason complexed with the
crime of murder and sentenced to the extreme penalty. In our decision,
penned by Mr. Justice Montemayor, we expressed ourselves as
follows:chanroblesvirtuallawlibrary
The Appellant herein was and is a Filipino citizen. His adherence to the
Japanese forces of occupation and giving them aid and comfort by acting as
their spy, undercover man, investigator, and even killer when necessary to
cow and compel the inhabitants to surrender their firearms and disclose
information about the guerrillas has been fully established. His manner of
investigation and maltreatment of some of his victims like Tereso Sanchez
and Patricio Suico, was so cruel, brutal and inhuman that it is almost
unbelievable that a Filipino can commit and practice such atrocities
especially on his own countrymen. But, evidently, war, confusion and
opportunism can and do produce characters and monster unknown during
peace and normal times.
The Peoples Court found the Appellant guilty of treason complexed with
murder. The Solicitor General, however, maintains that the offense
committed is simple treason, citing the doctrine laid down by this court in the
case of People vs. Prieto, (L-399, 45 Off. Gaz., 3329) but accompanied by the
aggravating circumstance under Article 14, paragraph 21, of the Revised
Penal Code, and not compensated by any mitigating circumstance, and he
recommends the imposition of the penalty of death. We agree with the
Solicitor General that on the basis of the ruling of this court in the case of
People vs. Prieto, supra, the Appellant may be convicted only a treason, and
that the killing and infliction of physical injuries committed by him may not
be separated from the crime of treason but should be regarded as acts
performed in the commission of treason, although, as stated in said case, the
brutality with which the killing or physical injuries were carried out may be
taken as an aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine of
P20,000.

Identical were the pertinent features of the case of People vs. Adlawan, 83
Phil., 194, 46 Off. Gaz., 4299, in which, through Mr. Justice Reyes (A), we
declared:chanroblesvirtuallawlibrary
cralaw we find merit in the contention that Appellant should have not been
convicted of the so called Complex crime of treason with murder, robbery,
and rape. The killings, robbery, and raping mentioned in the information are
therein alleged not as specific offenses but as mere elements of the crime of
treason for which the accused is being prosecuted. Being merged in and
identified with the general charged they cannot be used in combination with
the treason to increase the penalty under Article 48 of the Revised Penal
Code. (People vs. Prieto, L-399, January 29, 1948, 45 Off. Gaz.,
3329.) Appellant should, therefore, be held guilty of treason only. (Italics
supplied.)
In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language used
was:chanroblesvirtuallawlibrary
cralaw But the Peoples Court erred in finding the Appellant guilty of the
complex crime of treason with murder, because murder was an ingredient of
the crime of treason, as we have heretofore held in several cases. (Italics
supplied.)
This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz., Supp. No.
12, p. 252:chanroblesvirtuallawlibrary
The Solicitor General recommends that the Appellant be sentenced for the
complex crime of treason with murder. We have already ruled, however, that
where, as in the present case, the killing is charged as an element of treason,
it becomes identified with the latter crime and cannot be the subject of a
separate punishment, or used in combination with treason to increase the
penalty as Article 48 of the Revised Penal Code provides. (Italics supplied.)
The question at bar was, also, taken up in the case of Crisologo vs. People
and Villalobos (94 Phil., 477), decided on February 26, 1954. The facts and
the rule therein laid down are set forth in our unanimous decision in said
case, from which we quote:chanroblesvirtuallawlibrary
The Petitioner Juan D. Crisologo, a captain in the USAFFE during the last
world war and at the time of the filing of the present petition a lieutenant
colonel in the Armed Forces of the Philippines, was on March 12, 1946,
accused of treason under Article 114 of the Revised Penal Code in an
information filed in the Peoples Court. But before the accused could be
brought under the jurisdiction of the court, he was on January 13, 1947,
indicted for violations of Commonwealth Act No. 408, otherwise known as the
Articles of War, before a military court created by authority of the Army Chief
of Staff, the indictment containing three charges, two of which, the first and
third, were those of treason consisting in giving information and aid to the
enemy leaving to the capture of USAFFE officers and men and other persons
with anti-Japanese reputation and in urging members of the USAFFE to

surrender and cooperate with the enemy, while the second was that of
having certain civilians filled in time of war. Found innocent of the first and
third charges but guilty of the second, he was on May, 8, 1947, sentenced by
the military court to life imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311 abolishing the
Peoples Court, the criminal case in that court against the Petitioner was,
pursuant to the provisions of said Act, transferred to the Court of First
Instance of Zamboanga and there the charges of treason were amplified.
Arraigned in that court upon the amended information, Petitioner presented
a motion to quash, challenging the jurisdiction of the court and pleading
double jeopardy because of his previous sentence in the military court. But
the court denied the motion and, after Petitioner had pleaded not guilty,
proceeded to trial, whereupon, the present petition for certiorari and
prohibition was filed in this court to have the trial judge desist from
proceeding with the trial and dismiss the case.
It is, however, claimed that the offense charged in the military court
different from that charged in the civil court and that even granting that the
offense was identical the military court had no jurisdiction to take cognizance
of the same because the Peoples Court had previously acquired jurisdiction
over the case with the result that the conviction in the court martial was
void. In support of the first point, it is urged that the amended information
filed in the Court of First Instance of Zamboanga contains overt acts distinct
from those charged in the military court. But we note that while certain overt
acts specified in the amended information in the Zamboanga court were not
specified in the indictment in the court martial, they all are embraced in the
general charge of treason, which is a continuous offense and one who
commits it is not criminally liable for as many crimes as there are overt acts,
because all overt act he has done or might have done for that purpose
constitute but a single offense. (Guinto vs. Veluz, 44. Off. Gaz., 909; chan
roblesvirtualawlibraryPeople vs. Pacheco, L-4750, promulgated July 31,
1953.) In other words, since the offense charged in the amended information
in the Court of First Instance of Zamboanga is treason, the fact that the said
information contains an enumeration of additional ovart acts not specifically
mentioned in the indictment before the military court is immaterial since the
new alleged overt acts do not in themselves constitute a new and distinct
offense from that of treason, and this court has repeatedly held that a person
cannot be found guilty of treason and at the same time also guilty of overt
acts specified in the information for treason even if those overt acts,
considered separately, are punishable by law, for the simple reason that
those overt acts are not separate offenses distinct from that of treason but
constitute ingredients thereof. (Italics supplied.)
Thus, insofar as treason is concerned, the opinion of this court, on the
question whether said crime may be complexed with murder, when the
former was committed through the latter, and it is so alleged in the

information, had positively and clearly crystalized itself in the negative as

early as January 29, 1948.
We have not overlooked the decision in People vs. Labra (L-1240, decided on
May
12,
1949),
the
dispositive
part
of
which
partly
reads:chanroblesvirtuallawlibrary
Wherefore, the verdict of guilty must be affirmed. Articles 48, 114 and 248
of the Revised Penal Code are applicable to the offense of treason with
murder. However for lack of sufficient votes to impose the extreme penalty,
the Appellant will be sentenced to life imprisonment cralaw ..
Although it mentions Articles 48 and 248 of the Revised Penal Code and the
offense of treason with murder, it should be noted that we affirmed therein
the action of the Peoples Court, which, according to the opening statement
of our decision, convicted Labra of treason aggravated with murder.
Besides, the applicability of said articles was not discussed in said decision. It
is obvious, from a mere perusal thereof, that this court had no intention of
passing upon such question. Otherwise, it would have explained why it did
not follow the rule laid down in the previous cases of Prieto, Labra (August
10, 1948), Alibotod, Vilo, Roble, Delgado and Adlawan (supra), in which the
issue was explicitly examined and decided in the negative. Our continued
adherence to this view in the subsequent cases of Suralta, Navea, Pacheco
and Crisologo, without even a passing reference to the second Labra case,
shows that we did not consider the same as reflecting the opinion of the
court on said question. At any rate, insofar as it suggests otherwise, the
position taken in the second Labra case must be deemed reversed by our
decisions in said cases of Suralta, Navea, Pacheco and Crisologo.
It is true that treason and rebellion are distinct and different from each other.
This does not detract, however, from the rule that the ingredients of a crime
form part and parcel thereof, and, hence, are absorbed by the same and
cannot be punished either separately therefrom or by the application of
Article 48 of the Revised Penal Code. Besides there is more reason to apply
said rule in the crime of rebellion than in that of treason, for the law
punishing rebellion (Article 135, Revised Penal Code) specifically mentions
the act of engaging in war and committing serious violence among its
essential elements thus clearly indicating that everything done in the
prosecution of said war, as a means necessary therefor, is embraced therein
unlike the provision on treason (Article 114, Revised Penal Code) which is
less explicit thereon.
It is urged that, if the crime of assault upon a person in authority or an agent
of a person in authority may be committed with physical injuries (U. S. vs.
Montiel, 9 Phil., 162), homicide (People vs. Lojo, 52 Phil., 390) and murder (U.
S. vs. Ginosolongo, 23 Phil., 171; chan roblesvirtualawlibraryU. S. vs. Baluyot,
40 Phil., 385), and rape may be perpetrated with physical injuries (U. S. vs.
Andaya, 34 Phil., 690), then rebellion may, similarly, be complexed with
murder, arson, or robbery. The conclusion does not follow, for engaging in

war, serious violence, physical injuries and destruction of life and property
are inherent in rebellion, but not in assault upon persons in authority or
agents of persons in authority or in rape. The word rebellion evokes, not
merely a challenge to the constituted authorities, but, also, civil war, on a
bigger or lesser scale, with all the evils that go with it, whereas, neither rape
nor assault upon persons in authority connotes necessarily, or even
generally, either physical injuries, or murder. 1
In support of the theory that a rebel who kills in furtherance of the
insurrection is guilty of the complex crime of rebellion with murder, our
attention has been called to Article 244 of the old Penal Code of the
Philippines, reading:chanroblesvirtuallawlibrary
Los delitos particulares cometidos en una rebelion o sedicion, o con motivo
de ellas, seran castigados respectivamente segun las disposiciones de este
Codigo.
Cuando no puedan descubrirse sus autores seran penados como tales los
jefes principales de la rebelion o sedicion.
and to the following observations of Cuello Calon (Derecho Penal, Vol. II, p.
110), in relation thereto:chanroblesvirtuallawlibrary
Se establece aqui que el en una rebelion o sedicion, o con motivo de ellas,
comete otros delitos (v.g., roba, mata o lesiona), sera responsable de estos
ademas de los delitos de rebelion o sedicion. La dificultad consiste en estos
casos en separar los accidentes de la rebelion o sedicion de los delitos
independientes de estas, y como las leyes no contienen en este punto
precepto alguno aplicable, su solucion ha quedado encomendada a los
tribunales. La jurisprudencia que estos han sentado considera como
accidentes de la rebelion o sedicion cuya criminalidad queda embedida en
la de estos delitos, y, por tanto, no son punibles especialmente los hechos
de escasa gravedad (v.g., atentados, desacatos, lesiones menos
graves); chan roblesvirtualawlibrarypor el contrario, las infracciones graves,
como el asesinato o las lesiones graves, se consideran como delitos
independientes de la rebelion o de la sedicion.
It should be noted, however, that said Article 244 of the old Penal Code of
the Philippines has not been included in our Revised Penal Code. If the
applicability of Article 48 to rebellion was determined by the existence of
said Article 244, then the elimination of the latter would be indicative of the
contrary.
Besides, the crime of rebellion, referred to by Cuello Calon, was that
punished in the Spanish Penal Code, Article 243 of which
provides:chanroblesvirtuallawlibrary
Son reos de rebelion los que se alzaren publicamente y en abierta hostilidad
contra
el
Gobierno
para
cualquiera
de
los
objetossiguientes:chanroblesvirtuallawlibrary

1. Destronar al Rey, deponer al Regente o Regencia del Reino, o privarles

de su libertad personal u obligarles a ejecutar un acto contrario a su
voluntad.
2. Impedir la celebracion dc las elecciones para Diputados a Cortes o
Senadores en todo el Reino, o la reunion legitima de las mismas.
3. Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos
Colegisladores o arrancarles alguna resolucion.
4. Ejecutar cualquiera de los delitos previstos en el articulo 165.
5. Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de
mar, o cualquiera otra clase de fuerza armada, de la obediencia del Supremo
Gobierno.
6. Usar y ejercer por si o despojar a los Ministros de la Corona de sus
facultades constitucionales, o impedirles o coartarles su libre ejercicio.
(Articulo 167, Codigo Penal de 1850. Veanse las demas concordancias del
articulo 181.)
Thus, the Spanish Penal Code did not specifically declare that rebellion
includes the act of engaging in war against the forces of the Government and
of using serious violence for the purposes stated in Article 134 of the Revised
Penal Code. In view of this express statutory inclusion of the acts of war and
serious violence among the ingredients of rebellion in the Philippines, it is
clear that the distinction made by Cuello Calon between grave and less
grave offenses committed in the course of an insurrection cannot be
accepted in this jurisdiction. Again, if both classes of offenses are part and
parcel of a rebellion, or means necessary therefor, neither law nor logic
justifies the exclusion of the one and the inclusion of the other. In fact, Cuello
Calon admits that the difficulty lies in separating the accidents of rebellion
or sedition from the offenses independent therefrom. Ergo, offenses that are
not independent therefrom, but constituting an integral part thereof
committed, precisely, to carry out the uprising to its successful conclusion
are beyond the purview of Article 244. Indeed, the above quoted statement
of Cuello Calon to the effect that grave felonies committed in the course of
an insurrection are independent therefrom was based upon a decision of
the Supreme Court of Spain of February 5, 1872, which we find reported in
the
Codigo
Penal
de
Filipinas,
by
Jose
Perez
Rubio,
as
follows:chanroblesvirtuallawlibrary
El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de 1872, tiene
declarado:chanroblesvirtuallawlibrary Que segun los articulos 184 del Codigo
Penal de 1830, y 259 del reformado (1870), los delitos particulares
cometidos en una rebelion o sedicion o con motivo de ellas se castigan
respectivamente segun las disposiciones de los mismos Codigos; chan
roblesvirtualawlibraryy con arreglo al decreto de amnistia de 9 de Agosto de
1876 estan solo comprendidos en aquella gracia las personas sentenciadas,
procesadas o sujatas a responsabilidad por delitos politicos de cualquiera

especie -cometidos desde el 29 de Septiembre de 1868; chan

roblesvirtualawlibraryQue el asesinato del Gobernador Civil de Burgos no fue
resultado de movimiento alguno politico, sino de un mero tumulto que
imprimio el fanatismo, y cuya unica aparente tendencia era impedir que
aquel funcionario inventariase ciertos objetos artisticos que se decian
existentes en la Catedral:chanroblesvirtuallawlibrary Que esto lo demuestran
las salvajes voces de muerte proferidas por los asesinos contra la persona
del Gobernador; chan roblesvirtualawlibrarysin que al ejecutar en el mismo
recinto del templo los horrorosos hechos que aparecen en la causa, alzasen
bandera politica alguna ni dieran otro grito que el, en aquel momento
sacrilego e impio, de Viva la religion:chanroblesvirtuallawlibrary Que la
apreciar la Sala sentenciadora los hechos referentes al Gobernador Civil de
delito de asesinato, penarlo con arreglo al Codigo y declarar inaplicable el
citado Decreto de Amnistia, no ha cometido el error de derecho sealado en
los casos 1. 3. del articulo 4. de la ley sobre establecimiento de la
casacion criminal, ni infringido los articulos 250 y 259 del Codigo Penal de
1870. (Page 239; chan roblesvirtualawlibraryItalics supplied.) (See, also, El
Codigo Penal, by Hidalgo Garcia, Vol. I, p. 623.)
It is apparent that said case is not in point. There was no issue therein on
whether murder may be complexed with rebellion or sedition. The question
for determination was whether the killers of the victim were guilty of the
common crime of murder, or should have been convicted only of rebellion or
sedition. The court adopted the first alternative, not because of the gravity of
the acts performed by the accused, but because they had no political
motivation. Moreover, theEndnote:chanroblesvirtuallawlibrary to said
quotation from Cuello Calon reads:chanroblesvirtuallawlibrary
Los atentados desacatos y lesiones a la autoridad u otros delitos contra el
orden publico cometidos en la sedicion o con motivo de ella, no son delitos
distintos de la sedicion, 3 octubre 1903, 19 noviembre 1906; chan
roblesvirtualawlibraryla resistencia o acometimiento a la fuerza publica por
los sediciosos es accidente de la rebelion, 23 mayo 1890.
El asesinato de un gobernador cometido en el curso de un tumulto debe
penarse como un delito comun de asesinato, 5 febrero 1872. Sin embargo, la
jurisprudencia,
tratandose
de
ciertos
delitos,
es
vacilante; chan
roblesvirtualawlibraryasi, v. g., el acometimiento al teniente de alcalde se ha
declarado en un fallo independiente de la perturbacion tumultuaria
promovida para impedir al alcalde el cumplimiento de sus providencias, 16
marzo 1885, mientras que un hecho analogo se ha considerado en otra
sentenda ya citada como accidente de la rebelion, 3 Octubre 1903. El
acometimiento de los sediciosos a la fuerza publica es accidente de la
sedicion y no uno de los delitos particulares a que se refiere este articulo, 23
de mayo 1890. Entre estos delitos a que alude el precepto se hallan las
lesiones que puedan causar los sediciosos, 19 noviembre 1906.
(Endnote:chanroblesvirtuallawlibrary 21, II Cuelo Calon, Derecho Penal,
pp. 110-111.) (Italics supplied.)

Thus in a decision, dated May 2, 1934, the Supreme Court of Spain

held:chanroblesvirtuallawlibrary
Considerando que la nota deferencial entre los delitos de rebelion y
sedicion, de una parte, y el de atentado, esta constituida por la circunstancia
de alzamiento publico que caracteriza a los primeros, los cuales, por su
indole generica, absorben a los de atentado y demas infracciones que
durante su comision y con su motivo se cometan, y afirmandose como hecho
en la sentencia recurrida que el procesado Mariano Esteban Martinez realizo,
en union de otros, el atendado que se le imputa sin alzarse publicamente,
cae por su base el recurso fundado en supuesto distinto. (Jurisprudencia
Criminal, Tomo 130, p. 551.) (Italics supplied.)
To the same effect are, likewise, the following:chanroblesvirtuallawlibrary
La provocacion y el ataque a la Guardia Civil por paisanos alzadoz
tumultuariamente para impedir al Delegado de un Gobernador civil el
cumplimiento de sus providencias, no pueden estimarse constitutivos de un
delito distinto del de sedicion, ni ser, por tanto, perseguidos y penados
separadamente.
La resistencia o el acometimiento de los sublevados a la fuerza publica
constituye, en su caso, una circunstancia o accidente de la sedicion y no es
delito de los que el Codigo Penal en este articulo (formerly Article 244, now
Article 227) supone que pueden cometerse en ella o con su motivo, los
cuales denomina delitos particulares, y manda que se penen conforme a las
disposiciones del propio Codigo. (S. 23-5-890; chan roblesvirtualawlibraryG.
23-6-890; chan roblesvirtualawlibraryt. 44; chan roblesvirtualawlibrarypagina
671) (II Doctrina Penal del Tribunal Supremo, p. 2411.) (Italics supplied.)
La Audiencia condeno como autores de atentado a dos de los amotinados
que agredieron al alcalde, e interpuesto recurso de casacion contra la
sentencia, el Tribunal Supremo la casa y anula, teniendo en cuenta lo
dispuesto en el articulo 250 (numero 3.) del Codigo Penal;
Considerando que el acto llevado a cabo por el grupo constituye una
verdadera sedicion, sin que sea licito el dividir este hecho y calificarlo de
atentado respecto a las personas que agredieron a dicho alcalde, porque el
acometimiento fue un accidente de la sedicion, de la cual eran todos
responsables, ya se efectuara por los agrupados en conjunto o por uno solo,
por ser comun el objeto que se proponian y no individual; chan
roblesvirtualawlibraryy al calificar y penar este hecho la Audencia de Gerona,
de atentado cralaw, ha incurrido en error de derecho e infringido los
articulos 250 y siguientes del Codigo Penal, por no haberlos aplicado, y el
263, numero 2., en relacion con el 264, numeros 1. y 3., por su
aplicacion cralaw (Sent. 3 octubre 1903. Gac. 12 Diciembre)
(Enciclopedia Juridica Espaola, Tomo xxviii p. 250).
These cases are in accord with the text of said Article 244, which refers, not
to all offenses committed in the course of a rebellion or on the occasion

thereof, but only to delitos particulares or common crimes. Now, what are
delitos particulares as the phrase is used in said article 244? We quote
from Viada:chanroblesvirtuallawlibrary
Las disposicion del primer parrafo de este articulo no puede ser mas
justa; chan roblesvirtualawlibrarycon arreglo a ella, los delitos particulares o
comunes cometidos en una rebelion er sedicion no deberan reputarse como
accidentes inherentes a estas, sino como delitos especiales, a dicha rebelion
y sedicion ajenos, los que deberan ser respectivamente castigados con las
penas que en este Codigo se las sealan. Pero, que delitos deberan
considerarse como comunes, y cuales como constitutivos de la propia
rebelion o sedicion? En cuanto a la rebelion, no ofrece esta cuestion
dificultad alguna, pues todo hecho que no este comprendido en uno y otro
de los objetos especificados en los seis numeros del articulo 243 sera
extrao a la rebelion, y si se hallare definido en algun otro articulo del
Codigo, con arreglo a este debera ser castigado como delito particular. Pero
tratandose de la sedicion, comprendiendose como objetos de la misma, en
los numeros 3., 4. y 5. del articulo 250, hechos que constituyen otros
tantos ataques a las personas o a la propiedad, cuales se consideran como
accidentes inherentes a la propria sedicion, y cuales deberan reputarse como
delitos particulares o comunes? En cuanto a los casos de los numeros 4. y
5., estimanos que el objeto politico y social que se requiera para la
realizacion de los actos en aquellos comprendidos es el que debe servirnos
de norma y guia para distinguir lo inherente a la sedicion de lo que es ajeno
o extrao a ella. Cuando no exista ese objeto politico y social, el acto de odio
o venganza ejercido contra los particulares o cualquiera clase del Estado, y el
atentado contra las propiedades de los ciudadanos o corporaciones
mentados en el numero 5. del articulo 250, no seran constitutivos del delito
de sedicion, sino que deberan ser apreciados y castigados como delitos
comunes, segun las disposiciones respectivas de este Codigo y por lo que
toca a los actos de odio o venganza ejercidos en la persona o bienes de
alguna Autoridad o sus agentes, estimamos que deberan reputarse como
delitos comunes todos aquellos hechos innecesarios 2 para la consecucion
del fin particular que se propusieran los sediciosos y como esenciales,
constitutivos de la propia sedicion todos aquellos actos de odio o venganza
que sean medio racionalmente necesario para el logro del objeto especial a
que se encaminaran los esfuerzos de los sublevados. Asi, en el caso de la
Cuestion 1 expuesta en el comentario del articulo 258, es evidente que el fin
que se propusieron los sediciosos fue no pagar el impuesto a cuya cobranza
iba a proceder el comisionado; chan roblesvirtualawlibrarypero para lograr
este objeto, como lo lograron, fue preciso hacer salir del pueblo al ejecutor, y
a este efecto, lo amenazaron, lo persiguieron y llegaron hasta lesionarle.
Esas amenazas y lesiones no pudieron apreciarse, ni las aprecio tampoco la
Sala sentenciadora, como delito comun, sino como accidente inherente a la
misma sedicion, por cuanto fueron un medio racionalmente necesario para la
consecucion del fin determinado que se propusieron los culpables.

Pero cuando tal necesidad desaparece, cuando se hiere por herir, cuando se
mata por matar, el hecho ya, no puede ser considerado como un accidente
propio de la sedicion, sino como un delito especial, al que debe aplicarse la
pena al mismo correspondiente. (III Viada, pp. 311-312.) (Italics supplied.)
Cuello Calon is even more illuminating. He says:chanroblesvirtuallawlibrary
La doctrina cientifica considera los delitos llamados politicos como
infracciones de un caracter especial distintas de los denominados delitos
comunes. De esta apreciacion ha nacido la division de los delitos, desde el
punto de vista de su naturaleza intrinseca, en delitos politicos y delitos
comunes o de derecho comun.
Se reputan delitos comunes aquellos que lesionan bienes juridicos
individuales (v. gr., los delitos contra la vida, contra la honestidad, contra la
propiedad, etc.)
La nocion del delito politico no parece tan clara. Desde luego revisten este
caracter los que atentan contra el orden politico del Estado, contra su orden
externo (independencia de la nacion, integridad del territorio, etc.), o contra
el interno (delitos contra el Jefe del Estado, contra la forma de Gobierno,
etc.). Pero tambien pueden ser considerados como politicos todos los delitos,
cualesquiera que sean incluso los de derecho comun, cuando fueron
cometidos por moviles politicos. Deben, por tanto, estimarse como
infracciones de esta clase, no solo las que objetivamente tengan tal caracter
por el interes politico que lesionan, sino tambien las que, apreciadas
subjetivamente, manifiestan una motivacion de caracter politico.
Asi podria formulares esta definicion:chanroblesvirtuallawlibrary es delito
politico el cometido contra el orden politico del Estado, asi como todo delito
de cualquiera otra clase determinado por moviles politicos. (Cuello Calon,
Derecho Penal, Tomo I, pp. 247-249.)
In short, political crimes are those directly aimed against the political order,
as well as such common crimes as may be committed to achieve a political
purpose. The decisive factor is the intent or motive. If a crime usually
regarded as common like homicide, is perpetrated for the purpose of
removing from the allegiance to the Government the territory of the
Philippines Islands or any part thereof, then said offense becomes stripped
of its common complexion, inasmuch as, being part and parcel of the crime
of rebellion, the former acquires the political character of the latter.
Conformably with the foregoing, the case of murder against the Defendant in
U. S. vs. Lardizabal (1 Phil., 729) an insurgent who killed a prisoner of war
because he was too weak to march with the retreating rebel forces, and
could not be left behind without endangering the safety of the latter was
dismissed upon the ground that the execution of said prisoner of war formed
part of, and was included in, the crime of sedition, which, in turn, was
covered by an amnesty, to the benefits of which said Defendant was entitled.

True, in U. S. vs. Alfont (1 Phil., 115), the commander of an unorganized

group of insurgents was, pursuant to Article 244 of our old Penal Code,
convicted of homicide for having shot and killed a woman who was driving a
vehicle. But the complex crime of rebellion with homicide was not considered
in that case. Apart from this, the accused failed to established the relation
between her death and the insurrection. What is more, it was neither proved
nor alleged that he had been prompted by political reasons. In other words,
his offense was independent from the rebellion. The latter was merely the
occasion for the commission of the former.
It is noteworthy that the aforementioned decisions of this court and the
Supreme Court of Spain in cases of treason, rebellion and sedition, are in line
with the trend in other countries, as well as in the field of international
relations. Referring to the question as to what offenses are political in nature,
it was said in In re Ezeta (62 Fed. Rep., 972):chanroblesvirtuallawlibrary
What constitutes an offense of a political character has not yet been
determined by judicial authority. Sir James Stephens, in his work, History of
the Criminal Law of England (Volume 2, p. 71), thinks that it should be
interpreted to mean that fugitive criminals are not to be surrendered for
extradition crimes if those crimes were incidental to and formed a part of
political disturbances. Mr. John Stuart Mill, in the house of commons, in
1866, while discussing an amendment to the act of extradition, on which the
treaty between England and France was founded, gave this
definition:chanroblesvirtuallawlibrary Any offense committed in the course of
or furthering of civil war, insurrection, or political commotion. Hansards
Debates Vol. 184, p. 2115. In the Castioni Case, supra, decided in 1891, the
question was discussed by the most eminent counsel at the English bar, and
considered by distinguished judges, without a definition being framed that
would draw a fixed and certain line between a municipal or common crime
and one of political character. I do not think, said Denman, J., it is
necessary or desirable that we should attempt to put into language, in the
shape of an exhaustive definition, exactly the whole state of things, or every
state of things, which might bring a particular case within the description of
an offense of a political character. In that case, Castioni was charged with
the murder of one Rossi, by shooting him with a revolver, in the town of
Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a
member of the state council of the canton of Ticino. Castioni was a citizen of
the same canton. For some time previous to the murder, much
dissatisfaction had been felt and expressed by a large number of inhabitants
of Ticino at the mode in which the political party then in power were
conducting the government of the canton. A request was presented to the
government for a revision of the constitution of the canton and, the
government having declined to take a popular vote on that question, a
number of the citizens of Bellinzona, among whom was Castioni, seized the
arsenal of the town, from which they took rifles and ammunition, disarmed
the gendarmes, arrested and bound or handcuffed several persons

connected with the government, and forced them to march in front of the
armed crowd to the municipal palace. Admission to the palace was
demanded in the name of the people, and was refused by Rossi and another
member of the government, who were in the palace. The crowd then broke
open the outer gate of the palace, and rushed in, pushing before them the
government officials whom they had arrested and bound. Castioni, who was
armed with a revolver, was among the first to enter. A second door, which
was locked, was broken open, and at this time, or immediately after, Rossi,
who was in the passage, was shot through the body with a revolver, and
died, very soon afterwards. Some other shots were fired, but no one else was
injured. Castioni fled to England. His extradition was requested by the federal
council of Switzerland. He was arrested and taken before a police magistrate,
as provided by the statute, who held him for extradition. Application was
made by the accused to the high court of justice of England for a writ of
habeas corpus. He was represented by Sir Charles Russell, now lord chief
justice. The attorney general, Sir Richard Webster, appeared for the crown,
and the solicitor general, Sir Edward Clarke, and Robert Woodfal, for the
federal council of Switzerland. This array of distinguished counsel, and the
high character of the court, commends the case as one of the highest
authority. It appeared from an admission by one of the parties engaged in
the disturbances that the death of Rossi was a misfortune, and not
necessary for the rising. The opinions of the judges as to the political
character of the crime charged against Castioni, upon the facts stated, is
exceedingly interesting, but I need only refer to the following passages.
Judge Denman says:chanroblesvirtuallawlibrary
The question really is whether, upon the facts, it is clear that the man was
acting as one of a number of persons engaged in acts of violence of a
political character with a political object, and as part of the political
movement and rising in which he was taking part.
Judge Hawkins, in commenting upon the character of political offenses,
said:chanroblesvirtuallawlibrary
I cannot help thinking that everybody knows there are many acts of a
political character done without reason, done against all reason; chan
roblesvirtualawlibrarybut at the same time one cannot look too hardly, and
weigh in golden scales the acts of men hot in their political excitement. We
know that in heat, and in heated blood, men often do things which are
against and contrary to reason; chan roblesvirtualawlibrarybut none the less
an act of this description may be done for the purpose of furthering and in
furtherance of a political rising, even though it is an act which may be
deplored and lamented, as even cruel and against all reason, by those who
can calmly reflect upon it after the battle is over.
Sir James Stephens, whose definition as an author has already been cited,
was one of the judges, and joined in the views taken as to the political
character of the crime charged against Castioni. The prisoner was

discharged. Applying, by analogy, the action of the English court in that case
to the four cases now before me, under consideration, the conclusion follows
that the crimes charged here, associated as they are with the actual conflict
of armed forces, are of a political character.
The draft of a treaty on International Penal Law, adopted by the congress of
Montevideo in 1888, and recommended by the International American
Conference to the governments of the Latin-American nations in 1890,
contains the following provisions (Article 23):chanroblesvirtuallawlibrary
Political offenses, offenses subversive of the internal and external safety of a
state or common offenses connected with these, shall not warrant
extradition. The determination of the character of the offense is incumbent
upon the nations upon which the demand for extradition is made; chan
roblesvirtualawlibraryand its decision shall be made under and according to
the provisions of the law which shall prove to be most favorable to the
accused:chanroblesvirtuallawlibrary
I am not aware that any part of this Code has been made the basis of treaty
stipulations between any of the American nations, but the article cited may
be at least accepted as expressing the wisdom of leading jurists and
diplomats. The article is important with respect to two of its
features:chanroblesvirtuallawlibrary (1) provides that a fugitive shall not be
extradited for an offense connected with a political offense, or with an
offense subversive of the internal or external safety of the state; chan
roblesvirtualawlibraryand (2) the decision as to the character of the offense
shall be made under and according to the provisions of the law which shall
prove most favorable to the accused. The first provision is sanctioned by
Calvo, who, speaking of the exemption from extradition of persons charged
with political offenses, says:chanroblesvirtuallawlibrary
The exemption even extends to acts connected with political crimes or
offenses, and it is enough, as says Mr. Fuastin Helio; chan
roblesvirtualawlibrarythat a common crime be connected with a political act,
that it be the outcome of or be in the outcome of or be in the execution of
such, to be covered by the privilege which protects the latter Calvo, Droit
Int. (3me ed.) p. 413, section 1262.
The second provision of the article is founded on the broad principles of
humanity found everywhere in the criminal law, distinguishing its
administration with respect to even the worst features of our civilization from
the cruelties of barbarism. When this article was under discussion in the
international American conference in Washington, Mr. Silva, of Colombia,
submitted some observations upon the difficulty of drawing a line between
an offense of a political character and a common crime, and incidentally
referred to the crime of robbery, in terms worthy of some consideration here.
He said:chanroblesvirtuallawlibrary

In the revolutions, as we conduct them in our countries, the common

offenses are necessarily mixed up with the political in many cases. A
colleague General Caamao (of Ecuador) knows how we carry on wars. A
revolutionist needs horses for moving, beef to feed his troops, etc.; chan
roblesvirtualawlibraryand since he does not go into the public markets to
purchase these horses and that beef, nor the arms and saddles to mount and
equip his forces, he takes them from the first pasture or shop he find at
hand. This is called robbery everywhere, and is a common offense in time of
peace, but in time of war it is a circumstance closely allied to the manner of
waging it. International American Conference, Vol. 2, p. 615. (Italics
supplied.)
We quote the following from Endnote:chanroblesvirtuallawlibrary (23)
on pages 249-250, Vol. I, of Cuello Calons aforesaid work on Derecho
Penal.
En algunos Codigo y leyes de fecha proxima ya se halla una definicion de
estos delitos. El Codigo penal ruso, en el articulo 58, define como delitos
contra revolucionarios los hechos encaminados a derrocar o debilitar el
poder de los Consejos de trabajadores y campesinos y de los gobiernos de la
Union de Republicas socialistas sovieticas, a destruir o debilitar la seguridad
exterior de la Union de Republicas Sovieticas y las conquistas economicas,
politicas y nacionales fundamentales de la revolucion proletaria. El Codigo
Penal italiano de 1930 considera en eu articulo 8. como delito politico todo
delito que ofenda un interes politico del Estado o un derecho politico del
ciudadano. Tambien se reputa politico el delito comun deteminado, en todo
o en parte por motivos politicos. En la ley alemana de extradicion de 25
diciembre 1929 se definen asi:chanroblesvirtuallawlibrary Son delitos
politicos los atentados punibles directamente ejecutados contra la existencia
o la seguridad del Estado, contra el jefe o contra un miembro del gobierno
del Estado como tal, contra una corporacion constitucional, contra los
derechos politicos las buenas relaciones con el extranjero. parrafo 3., 2.
La 6a. Conferencia para la Unificacion del Derecho penal (Copenhague, 31
agosto 3 septiembre 1935) adopto la siguiente nocion del delito
politico:chanroblesvirtuallawlibrary
1. Por delitos politicos se entienden los dirigidos contra la organizacion y
funcionamiento del Estado o contra los derechos que de esta organizacion y
funcionamiento provienen para el culpable.
2. Tambien se consideran como delitos politicos los delitos de derecho
comun que constituyen hechos conexos con la ejecucion de los delitos
previstos en seccion 1.:chanroblesvirtuallawlibrary como los hechos
dirigidos a favorecer la ejecucion de un delito politico o a permitir al autor de
este delito sustraerse a la aplicacion de la ley penal.
3. No se consideraran delitos politicos aquellos a los que su autor sea
inducido por un motivo egoista y vil.

4. No se consideraran delitos los que creen un peligro para la comunidad o

un estado de terror. (Italics supplied.)
Thus, national, as well as international, laws and jurisprudence
overwhelmingly favor the proposition that common crimes, perpetrated in
furtherance of a political offense, are divested of their character as
common offenses and assume the political complexion of the main crime
of which they are mere ingredients, and, consequently, cannot be punished
separately from the principal offense, or complexed with the same, to justify
the imposition of a graver penalty.
There is one other reason and a fundamental one at that why Article 48
of our Penal Code cannot be applied in the case at bar. If murder were not
complexed with rebellion, and the two crimes were punished separately
(assuming that this could be done), the following penalties would be
imposable upon the movant, namely:chanroblesvirtuallawlibrary (1) for the
crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present,
but
never
exceeding
12
years
of
prision
mayor; chan
roblesvirtualawlibraryand (2) for the crime of murder, reclusion temporal in
its maximum period to death, depending upon the modifying circumstances
present. In other words, in the absence of aggravating circumstances, the
extreme penalty could not be imposed upon him. However, under Article 48,
said penalty would have to be meted out to him, even in the absence of a
single aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would be unfavorable to the
movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring
the culprit, not of sentencing him to a penalty more severe than that which
would be proper if the several acts performed by him were punished
separately. In the word of Rodriguez Navarro:chanroblesvirtuallawlibrary
La unificacion de penas en los casos de concurso de delitos a que hace
referencia este articulo (75 del Codigo de 1932), esta basado francamente
en el principio pro reo. (II Doctrina Penal del Tribunal Supremo de Espaa, p.
2168.) 3
We are aware of the fact that this observation refers to Article 71 (later 75) of
the Spanish Penal Code (the counterpart of our Article 48), as amended in
1908 and then in 1932, reading:chanroblesvirtuallawlibrary
Las disposiciones del articulo anterior no son aplicables en el caso de que
un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea
medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas
grave en su grado maximo, hasta el limite que represente la suma de las que
pudieran imponerse, penando separadamente los delitos.

Cuando la pena asi computada exceda de este limite, se sancionaran los

delitos por separado. (Rodriguez Navarro, Doctrino Penal del Tribunal
Supremo, Vol. II, p. 2163.)
and that our Article 48 does not contain the qualification inserted in said
amendment, restricting the imposition of the penalty for the graver offense
in its maximum period to the case when it does not exceed the sum total of
the penalties imposable if the acts charged were dealt with separately. The
absence of said limitation in our Penal Code does not, to our mind, affect
substantially the spirit of said Article 48. Indeed, if one act constitutes two or
more offenses, there can be no reason to inflict a punishment graver than
that prescribed for each one of said offenses put together. In directing that
the penalty for the graver offense be, in such case, imposed in its maximum
period, Article 48 could have had no other purpose than to prescribe a
penalty lower than the aggregate of the penalties for each offense, if
imposed separately. The reason for this benevolent spirit of Article 48 is
readily discernible. When two or more crimes are the result of a single act,
the offender is deemed less perverse than when he commits said crimes thru
separate and distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of the penalty
for the more serious one, on the assumption that it is less grave than the
sum total of the separate penalties for each offense.
Did the framers of Article 48 have a different purpose in dealing therein with
an offense which is a means necessary for the commission of another? To
begin with, the culprit cannot, then, be considered as displaying a greater
degree of malice than when the two offenses are independent of each other.
On the contrary, since one offense is a necessary means for the commission
of the other, the evil intent is one, which, at least, quantitatively, is lesser
than when the two offenses are unrelated to each other, because, in such
event, he is twice guilty of having harbored criminal designs and of carrying
the same into execution. Furthermore, it must be presumed that the object of
Article 48, in its entirety, is only one. We cannot assume that the purpose of
the lawmaker, at the beginning of the single sentence of which said article
consists, was to favor the accused, and that, before the sentence ended, the
former had a change of heart and turned about face against the latter. If the
second part of Article 48 had been meant to be unfavorable to the accused
and, hence, the exact opposite of the first part each would have been
placed in, separate provisions, instead of in one single article. If the first part
sought to impose, upon the culprit, a penalty less grave than that which he
would deserve if the two or more offenses resulting from his single act were
punished separately, then this, also, must be the purpose of the second part,
in dealing with an offense which is a necessary means for the commission of
another.
The accuracy of this conclusion is borne out by the fact that, since 1850,
when the counterpart of our Article 48 was inserted in the Penal Code of
Spain, or for over a century, it does not appear to have been applied by the

Supreme Court thereof to crimes of murder committed in furtherance of an

insurrection.
Incidentally, we cannot accept the explanation that crimes committed as a
means necessary for the success of a rebellion had to be prosecuted
separately under the provisions of Article 259 of the Penal Code of Spain,
which is the counterpart of Article 244 of our old Penal Code. To begin with,
these articles are part of a substantive law. They do not govern the manner
or method of prosecution of the culprits. Then again, said precepts ordain
that common crimes committed during a rebellion or sedition, or on the
occasion thereof, shall be respectively punished according to the provisions
of this Code. Among such provisions was Article 90 (later Article 71, then
Article 75) of the Spanish Penal Code, and Article 89 of our old Penal Code, of
which Article 48 of the Revised Penal Code of the Philippines is a substantial
reproduction. Hence, had the Supreme Court of Spain or the Philippines
believed that murders committed as a means necessary to attain the aims of
an uprising were common crimes, the same would have been complexed
with the rebellion or sedition, as the case may be.
The cases of People vs. Cabrera (43 Phil., 64) and People vs. Cabrera (43
Phil., 82) have not escaped our attention. Those cases involved members of
the constabulary who rose publicly, for the purpose of performing acts of
hate and vengeance upon the police force of Manila, and in an encounter
with the latter, killed some members thereof. Charged with and convicted of
sedition in the first case, they were accused of murder in the second case.
They pleaded double jeopardy in the second case, upon the ground that the
facts alleged in the information were those set forth in the charge in the first
case, in which they had been convicted. This plea was rejected upon the
ground that the organic law prohibited double jeopardy for the same offense,
and that the offense of sedition is distinct and different from that of murder,
although both were the result of the same act.
The question whether one offense was inherent in, or identified with, the
other was not discussed or even considered in said cases. Besides, the lower
court applied, in the murder case Article 89 of the old Penal Code which is
the counterpart of Article 48 of the Revised Penal Code but this Court
refused to do so. Again, simply because one act may constitute two or more
offenses, it does not follow necessarily that a person may be prosecuted for
one after conviction for the other, without violating the injunction against
double jeopardy. For instance, if a man fires a shotgun at another, who
suffers thereby several injuries, one of which produced his death, may he,
after conviction for murder or homicide, based upon said fatal injury, be
accused or convicted, in a separate case, for the non-fatal injuries sustained
by the victim? Or may the former be convicted of the complex crime of
murder or homicide with serious and/or less serious physical injuries? The
mere formulation of these questions suffices to show that the limitation of
the rule on double jeopardy to a subsequent prosecution for the same
offense does not constitute a license for the separate prosecution of two

offenses resulting from the same act, if one offense is an essential element
of the other. At any rate, as regards this phase of the issue, which was not
touched in the Cabrera cases, the rule therein laid down must necessarily be
considered modified by our decision in the cases of People vs. Labra (46 Off.
Gaz., Supp. No. 1, p. 159) and Crisologo vs. People and Villalobos (supra),
insofar as inconsistent therewith.
The main argument in support of the theory seeking to complex rebellion
with murder and other offenses is that war within the purview of the
laws on rebellion and sedition may be waged or levied without killing.
This premise does not warrant, however, the conclusion drawn therefrom
that any killing done in furtherance of a rebellion or sedition is
independent therefrom, and may be complexed therewith, upon the ground
that destruction of human life is not indispensable to the waging or levying
of war. A person may kill another without inflicting physical injuries upon the
latter, such, for instance, as by poisoning, drowning, suffocation or shock. Yet
it is admitted that he who fatally stabs another cannot be convicted of
homicide with physical injuries. So too, it is undeniable that treason may be
committed without torturing or murdering anybody. Yet, it is well-settled that
a citizen who gives aid and comfort to the enemy by taking direct part in the
maltreatment and assassination of his (citizens) countrymen, in furtherance
of the wishes of said enemy, is guilty of plain treason, not complexed with
murder or physical injuries, the later being as charged and proven mere
ingredients of the former. Now then, if homicide may be an ingredient of
treason, why can it not be an ingredient of rebellion? The proponents of the
idea of rebellion complexed with homicide,. etc., have not even tried to
answer this question. Neither have they assailed the wisdom of our
aforementioned decisions in treason cases.
The Court is conscious of the keen interest displayed, and the considerable
efforts exerted, by the Executive Department in the apprehension and
prosecution of those believed to be guilty of crimes against public order, of
the lives lost, and the time and money spent in connection therewith, as well
as of the possible implications or repercussions in the security of the State.
The careful consideration given to said policy of a coordinate and co-equal
branch of the Government is reflected in the time consumed, the extensive
and intensive research work undertaken, and the many meetings held by the
members of the court for the purpose of elucidating on the question under
discussion and of settling the same.
The role of the judicial department under the Constitution is, however,
clear to settle justiceable controversies by the application of the law. And
the latter must be enforced as it is with all its flaws and defects, not
affecting its validity not as the judges would have it. In other words, the
courts must apply the policy of the State as set forth in its laws, regardless of
the wisdom thereof.

It is evident to us that the policy of our statutes on rebellion is to consider all

acts committed in furtherance thereof as specified in Articles 134 and 135
of the Revised:chanroblesvirtuallawlibrary Penal Code as constituting only
one crime, punishable with one single penalty namely, that prescribed in
said Article 135. It is interesting to note, in this connection, that the penalties
provided in our old Penal Code (Articles 230 to 232) were much stiffer,
namely:chanroblesvirtuallawlibrary
1. Life imprisonment to death for the promoters, maintainers and leaders
of the rebellion, and, also, for subordinate officers who held positions of
authority, either civil or ecclesiastical, if the purpose of the movement was to
proclaim the independence of any portion of the Philippine territory;
2. Reclusion temporal in its maximum period for said promoters,
maintainers and leaders of the insurrection, and for its subordinate officers, if
the purpose of the rebellion was any of those enumerated in Article 229,
except that mentioned in the preceding paragraph;
3. Reclusion temporal:chanroblesvirtuallawlibrary (a) for subordinate officers
other than those already adverted to; chan roblesvirtualawlibraryand (b) for
mere participants in the rebellion falling under the first paragraph of No. 2 of
Article 174; chan roblesvirtualawlibraryand
4. Prision mayor in its medium period to reclusion temporal in its minimum
period for participants not falling under No. 3.
After the cession of the Philippines to the United States, the rigors of the old
Penal Code were tempered. Its aforementioned provisions were superseded
by section 3 of Act No. 292, which reduced the penalty to imprisonment for
not more than ten (10) years and a fine not exceeding $10,000, or P20,000,
for every person who incites, sets on foot, assists or engages in any
rebellion or insurrection cralaw or who gives aid and comfort to any one so
engaging in such rebellion or insurrection. Such liberal attitude was adhered
to by the authors of the Revised Penal Code. The penalties therein are
substantially identical to those prescribed in Act 292. Although the Revised
Penal Code increased slightly the penalty of imprisonment for the promoters,
maintainers and leaders of the uprising, as well as for public officers joining
the same, to a maximum not exceeding twelve (12) years of prision mayor, it
reduced the penalty of imprisonment for mere participants to not more than
eight (8) years of prision mayor, and eliminated the fine.
This benign mood of the Revised Penal Code becomes more significant when
we bear in mind it was approved on December 8, 1930 and became effective
on January 1, 1932. At that time the communists in the Philippines had
already given ample proof of their widespread activities and of their designs
and potentialities. Prior thereto, they had been under surveillance by the
agents of the law, who gathered evidence of their subversive movements,
culminating in the prosecution of Evangelista, Manahan (57 Phil., 354; chan
roblesvirtualawlibrary57 Phil., 372), Capadocia (57 Phil., 364), Feleo (57 Phil.,

451), Nabong (57 Phil., 455), and others. In fact, the first information against
the first two alleged that they committed the crime of inciting to sedition on
and during the month of November, 1930, and for sometime prior and
subsequent thereto.
As if this were not enough, the very Constitution adopted in 1935,
incorporated a formal and solemn declaration (Article II, section 5)
committing the Commonwealth, and, then the Republic of the Philippines, to
the promotion of social justice. Soon later, Commonwealth Act No. 103,
creating the Court of Industrial Relations, was passed. Then followed a
number of other statutes implementing said constitutional mandate. It is not
necessary to go into the details of said legislative enactments. Suffice it to
say that the same are predicated upon a recognition of the fact that a good
many of the problems confronting the State are due to social and economic
evils, and that, unless the latter are removed or, least minimized, the former
will keep on harassing the community and affecting the well-being of its
members.
Thus, the settled policy of our laws on rebellion, since the beginning of the
century, has been one of decided leniency, in comparison with the laws
enforce during the Spanish regime. Such policy has not suffered the slightest
alteration. Although the Government has, for the past five or six years,
adopted a more vigorous course of action in the apprehension of violators of
said law and in their prosecution the established policy of the State, as
regards the punishment of the culprits has remained unchanged since 1932.
It is not for us to consider the merits and demerits of such policy. This falls
within the province of the policy-making branch of the government the
Congress of the Philippines. However, the following quotation from Cuello
Calon indicates the schools of thought on this subject and the reason that
may
have
influenced
our
lawmakers
in
making
their
choice:chanroblesvirtuallawlibrary
Durante muchos siglos, hasta tiempos relativamente cercanos, se
reputaban los hechos que hoy llamamos delitos politicos como mas graves y
peligrosos que los crimenes comunes. Se consideraba que mientras estos
solo causan un dao individual, aquellos producen profundas perturbaciones
en la vida collectiva llegando a poner en peligro la misma vida del Estado. En
consonancia con estas ideas fueron reprimidos con extraordinaria severidad
y designados con la denominacion romana de delitos de lesa majestad se
catalogaron en las leyes penales como los crimenes mas temibles.
Pero desde hace poco mas de un siglo se ha realizado en este punto una
transformacion profunda merced a la cual la delincuencia politica dejo de
apreciarse con los severos criterios de antao quedando sometida a un
regimen penal, por regla general suave y benevolo.
El origen de este cambio se remonta, segun opinion muy difundida, a la
revolucion que tuvo lugar en Francia en el ao 1830. El gobierno de Luis
Felipe establecio una honda separacion entre los delitos comunes y los

politicos, siendo estos sometidos a una penalidad mas suave y sus autores
exceptuados de la extradicion. Irradiando a otros paises tuvieron estas tan
gran difusion que en casi todos los de regimen liberal-individualista se ha
llegado a crear un tratamiento desprovisto de severidad para la represion de
estos hechos. No solo las penas con que se conminaron perdieron gran parte
de su antigua dureza, sino qua en algunos paises se creo un regimen penal
mas suave para estos delicuentes, en otros se abolio para ellos la pena de
muerte. Tan profundo contraste entre el antiguo y el actual tratamiento de la
criminalidad politica en la mayoria de los paises solo puede ser explicado por
las ideas nacidas y difundidas bajo los regimenes politicos liberalesacerca de
estos delitos y delincuentes. Por una parte se ha afirmado que la
criminalidad da estos hechos no contiene la misma inmoralidad que la
delincuencia comun, que es tan solo relativa, qua depende del tiempo, del
lugar, da las circumstancias, de las instituciones del pais. Otros invocan la
elevacion de los moviles y sentimientos determinantes de estos hechos, el
amor a la patria, la adhesion ferviente a determinadas ideas o principios, el
espiritu de sacrificio por el triunfo de un ideal.
Contra su trato benevolo, del que no pocas veces se han beneficiado
peligrosos malhechores, se ha iniciado hace algun tiempo una fuerte
reaccion (vease Cap. XV, 3., b), que llego a alcanzar considerable severidad
en las legislaciones de tipo autoritario, y que tambien ha hallado eco, en
forma mas suave, en las de otros paises de constitucion democratica en los
que, especialmente en los ultimos aos, la frecuencia de agitaciones
politicas y sociales ha originado la publicacion de numerosas leyes
encaminadas a la proteccion penal del Estado. (Cuello Calon, Derecho
Penal, Tomo 1, pp. 250-252.)
Such evils as may result from the failure of the policy of the law punishing
the offense to dovetail with the policy of the law enforcing agencies in the
apprehension and prosecution of the offenders are matters which may be
brought to the attention of the departments concerned. The judicial branch
cannot amend the former in order to suit the latter. The Court cannot indulge
in judicial legislation without violating the principle of separation of powers,
and, hence, undermining the foundation of our republican system. In, short,
we cannot accept the theory of the prosecution without causing much bigger
harm than that which would allegedly result from the adoption of the
opposite view.
In conclusion, we hold that, under the allegations of the amended
information against Defendant-Appellant Amado V. Hernandez, the murders,
arsons and robberies described therein are mere ingredients of the crime of
rebellion allegedly committed by said Defendants, as means necessary 4
for
the
perpetration
of
said
offense
of
rebellion; chan
roblesvirtualawlibrarythat the crime charged in the aforementioned amended
information is, therefore, simple rebellion, not the complex crime of rebellion
with multiple murder, arsons and robberies; chan roblesvirtualawlibrarythat
the maximum penalty imposable under such charge cannot exceed twelve

(12)
years
of
prision
mayor
and
a
fine
of
P20,000; chan
roblesvirtualawlibraryand that, in conformity with the policy of this court in
dealing with accused persons amenable to a similar punishment,
said Defendant may be allowed bail.
It is urged that, in the exercise of its discretion, the Court should deny the
motion under consideration, because the security of the State so requires,
and because the judgment of conviction appealed from indicates that the
evidence of guilt of Amado V. Hernandez is strong. However, as held in a
resolution of this court, dated January 29, 1953, in the case of Montano vs.
Ocampo (G.R. L-6352):chanroblesvirtuallawlibrary
cralaw to deny bail it is not enough that the evidence of guilt is
strong; chan roblesvirtualawlibraryit must also appear that in case of
conviction the Defendants criminal liability would probably call for a capital
punishment. No clear or conclusive showing before this Court has been
made.
In fact, in the case at bar, Defendant Amado V. Hernandez was sentenced by
the lower court, not to the extreme penalty, but to life imprisonment.
Furthermore, individual freedom is too basic, too transcendental and vital in
a republican state, like ours, to be denied upon mere general principles and
abstract consideration of public safety. Indeed, the preservation of liberty is
such a major preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section (1) of the
Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4),
(5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said
section (1) to the protection of several aspects of freedom. Thus, in line with
the letter and spirit of the fundamental law, we said in the aforementioned
case of Montano vs. Ocampo:chanroblesvirtuallawlibrary
Exclusion from bail in capital offenses being an exception to the otherwise
absolute right guaranteed by the constitution, the natural tendency of the
courts has been toward a fair and liberal appreciation, rather than otherwise,
of the evidence in the determination of the degree of proof and presumption
of guilt necessary to warrant a deprivation of that right.
xxx

xxx

xxx

In the evaluation of the evidence the probability of flight is one other

important factor to be taken into account. The sole purpose of confining
accused in jail before conviction, it has been observed, is to secure his
presence at the trial. In other words, if denial of bail is authorized in capital
cases, it is only on the theory that the proof being strong,
the Defendant would flee, if he has the opportunity, rather than face the
verdict of the jury. Hence, the exception to the fundamental right to be bailed
should be applied in direct ratio to the extent of the probability of evasion of
prosecution.

The possibility of escape in this case, bearing in mind the Defendants

official and social standing and his other personal circumstances, seem
remote if not nil.
This view applies fully to Amado V. Hernandez, with the particularity that
there is an additional circumstance in his favor he has been detained since
January 1951, or for more than five (5) years, and it may still take some time
to dispose of the case, for the same has not been, and is not in a position to
be, included, as yet, in our calendar, inasmuch as the briefs for
some Appellants other than Hernandez as well as the brief for the
Government, are pending submission. It should be noted, also, that the
decision appealed from the opposition to the motion in question do not
reveal satisfactorily and concrete, positive act of the accused showing,
sufficiently, that his provincial release, during the pendency of the appeal,
would jeopardize the security of the State.
Wherefore,
the
aforementioned
motion
for
bail
of Defendant- Appellant Amado V. Hernandez is hereby granted and, upon
the filing of a bond, with sufficient sureties, in the sum of P30,000, and its
approval by the court, let said Defendant-Appellant be provisionally released.
It is SO ORDERED.
Paras, C.J., Reyes, A., Bautista Angelo and Reyes. J.B.L., JJ., concur.
Bengzon, J., concurs in the result.
Separate Opinions
PADILLA, J., dissenting:chanroblesvirtuallawlibrary
Amado V. Hernandez and others were charged in the Court of First Instance
of Manila with the crime of rebellion with multiple murder, arsons and
robberies. The body of the information charged that he and his coDefendants conspired and that as a necessary means to commit the crime
of rebellion, in connection therewith and in furtherance thereof, have then
and there committed acts of murder, pillage, looting, plunder, arson, and
planned destruction of private and public property to create and spread
chaos, disorder, terror, and fear so as to facilitate the accomplishment of the
aforesaid purpose, and recited the different crimes committed by
theDefendants. After trial Amado V. Hernandez was found guilty and
sentenced to suffer life imprisonment from which judgment and sentence he
appealed. The appeal is pending in this Court.
Upon the ground that there is no complex crime of rebellion with murder, the
penalty provided for to be imposed upon persons found guilty of rebellion
being prision mayor and a fine not to exceed P20,000 only, 1 the majority
grants the petition for bail filed by the Appellant.
Section
1,
paragraph
16,
Article
provides:chanroblesvirtuallawlibrary

III,

of

the

Constitution

All persons shall before conviction be bailable by sufficient sureties, except

those charged with capital offenses when evidence of guilt is strong.
Excessive bail shall not be required. (Italics supplied.)
The pertinent sections of Rule 110 provide:chanroblesvirtuallawlibrary
SEC. 3. Offenses less than capital before conviction by the Court of First
Instance. After judgment by a justice of the peace and before conviction
by the Court of First Instance, theDefendant shall be admitted to bail as of
right.
SEC. 4. Noncapital offenses after conviction by the Court of First Instance.
After conviction by the Court of First Instance Defendant may, upon
application, be bailed at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term is used in this
rule, is an offense which, under the law existing at the time of its
commission, and at the time of the application to be admitted to bail, may be
punished by death.
SEC. 6. Capital offenses not bailable. No person in custody for the
commission of a capital offense shall be admitted to bail if the evidence of
his guilt is strong.
SEC. 7. Capital offenses - burden of proof. On the hearing of an
application for admission to bail made by any person who is in custody for
the commission of a capital offense, the burden of showing that evidence of
guilt is strong is on the prosecution.
SEC. 13. Bail on appeal. Bail upon appeal must conform in all respects as
provided for in other cases of bail.
According to this Rule, a Defendant in a criminal case after a judgment of
conviction by the Justice of the Peace Court and before conviction by the
Court of First Instance is entitled to bail. After conviction by the Court of First
Instance he, upon application, may still be bailed in non-capital offenses but
at the discretion of the court. When the information charges a capital offense
theDefendant is not entitled to bail if the evidence of his guilt is strong. Of
course this means before conviction. After conviction for a capital offense,
the Defendant has absolutely no right to bail, because even before
conviction a Defendant charged with capital offense is not entitled to bail if
the evidence of guilt is strong. So that should a Defendant charged with a
capital offense apply for bail before conviction, the prosecution must
establish and show that the evidence of theDefendants guilt is strong if the
application for bail be objected to. After conviction of aDefendant charged
with a capital offense there is no stronger evidence of his guilt than the
judgment rendered by the trial court. The judgment is entitled to full faith
and credit. Until after the evidence shall have been reviewed and the
reviewing court shall have found that the trial court committed error in
convicting the Defendant of the crime charged, the judgment and sentence

of the trial court in such criminal case must be taken at its face value and be
given full faith and credit by this Court.
Without a review of the evidence presented in the case, the majority has
taken up and discussed the question whether, under and pursuant to the
provisions of article 135 of the Revised Penal Code, the complex crime of
rebellion with murder may arise or exist or be committed and has reached
the conclusion that murder as an incident to rebellion, is integrated, imbibed,
incorporated, or absorbed in, or part and parcel of, the last mentioned crime.
For that reason it is of the opinion that, as the information filed against
Amado V. Hernandez does not charge a capital offense, he may be admitted
to bail at the discretion of the Court.
Even if the majority opinion that the crime charged in the information is
rebellion only a non-capital offense be correct, still the granting of bail
after conviction is discretionary, and I see no plausible reason for the
reversal of this Courts previous stand, because the security of the State is at
stake.
For these reasons I dissent.
MONTEMAYOR, J., dissenting:chanroblesvirtuallawlibrary
Unable to agree to the resolution of the majority, I am constrained to dissent
therefrom, not so much from the part thereof granting the motion for bail, as
where it holds not only that there can be no complex crime of rebellion with
multiple murder, robbery, arson, etc., but that these crimes when committed
during and on the occasion of a rebellion, are absorbed by the latter. The
new doctrine now being laid down besides being, to my mind, quite radical
and in open and clear contravention of public policy, is fundamental and of
far-reaching consequences, and I feel it my duty not only to voice my dissent
but also to state the reasons in support thereof.
The resolution cites and quotes Article 135 of the Revised Penal Code to
support its theory that the five acts enumerated therein particularly those of
engaging in war against the forces of the government, destroying property
and committing serious violence, cover all the murders, robberies, arsons,
etc., committed on the occasion of or during a rebellion; chan
roblesvirtualawlibraryand it proceeds to assert that the expressions used in
said article, such as engaging in war against the forces of the government
and committing serious violence imply everything that war connotes such as
physical injuries and loss of life. In this connection, it is of profit and even
necessary to refer to Article 134 of the Revised Penal Code defining and
describing how the crime of rebellion is committed.
Art. 134. Rebellion or insurrection How committed. The crime of
rebellion or insurrection is committed by rising publicly and taking arms
against the Government for the purpose of removing from the allegiance to

said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, or of depriving the
Chief Executive or the Legislature, wholly or partially, of any of their powers
or prerogatives.
According to the above article, rebellion is committed by rising publicly and
taking arms against the government for the purpose or purposes
enumerated in said article. In other words, the commission of rebellion is
complete and consummated if a group of persons for the purposes
enumerated in the article, rise publicly, take up arms and assemble. It is not
necessary for its consummation that anybody be injured or killed, be it a
government soldier or civilian, or that innocent persons be forcibly deprived
of their properties by means of robbery or that their stores and houses be
looted and then burned to the ground. Stated differently, murders, robberies,
arsons, etc., are not necessary or indispensable in the commission of
rebellion and, consequently, are not ingredients or elements of the latter.
Article 48 of the Revised Penal Code providing for Penalty for complex
crimes reads thus:chanroblesvirtuallawlibrary
ART. 48. Penalty for complex crimes. 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, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. (As amended by
Act No. 4000.)
For better understanding, I deem it advisable to ascertain and explain the
meaning of the phrase necessary means used in Article 48. Necessary
means as interpreted by criminologists, jurists and legal commentators,
does not mean indispensable means, because if it did, then the offense as a
necessary means to commit another would be an indispensable element of
the latter and would be an ingredient thereof. That would be true in the
offense of trespass to dwelling to commit robbery in an inhabited house, or
the infliction of physical injuries to commit homicide or murder. The phrase
necessary means used in Article 48, merely signifies that for instance, a
crime such as simple estafa can be and ordinarily is committed in the
manner
defined
and
described
in
the
Penal
Code; chan
roblesvirtualawlibrarybut, if the estafador resorts to or employs
falsification, merely to facilitate and insure his committing the estafa, then
he is guilty of the complex crime of estafa thru falsification. So, if one
desiring to rape a certain woman, instead of waiting for an opportunity where
she could be alone or helpless, in the fields or some isolated place, abducts
her by force and takes her to a forest to ravish her; chan
roblesvirtualawlibraryor he enters her home through a window at night and
rapes her in her room, then he is guilty of the complex crime of abduction
with rape or rape with trespass to dwelling. The reason is that the
commission of abduction of trespass to dwelling are not indispensable means
or ingredients of the crime of rape. They are but means selected by the

culprit to facilitate and carry out perhaps more quickly his evil designs on his
victim. Says the eminent Spanish commentator, Groizard, on this
point:chanroblesvirtuallawlibrary
Una cosa analoga acontece respecto de los delitos conexionados con una
relacion de medio a fin. Tambien en ellos la unidad de acto moral, que da
vida al delito, hace logica la imposicion de una sola pena. Preciso es, sin
embargo, distinguir el caso en que el delito medio sea medio necesario de
realizar el delito fin, del caso en que sea puramente medio, pero no medio
indispensable. En aquel, el delito medio no es, en realidad, sino una
condicion precisa, una circumstancia sine qua non, un elemento integral de
la accion punible concebida como fin. Sin pasar por uno, seria imposible
llegar al otro. La voluntad, libre e inteligente, tiene entonces por unico objeto
llegar al delito fin. Si al recorrer su camino ha de pasar, indispensablemante,
por la comision de otro hecho punible, no dos, sino un delito habra que
castigar, toda ves que uno fue el mal libremente querido, no siendolo el otro
por si, sino en tanto que era necesario para obtener, la realizacion del mal
proposito concebido.
xxx

xxx

xxx

Asi, hay que reconocer que es plausible que, cuando un delito es medio de
realizar otro, se imponga al culpable la pena correspondiente al mayor en su
grado maximo; chan roblesvirtualawlibrarypero que no los es si resulta que
ha sido medio necesario. Por lo contrario, para que sea justo el aumento de
pena, con arreglo a la doctrina general acerca del delito y las circunstancia
agravantes, es preciso que existan y no se aprovechen otros procedimientos,
otros recursos, mas o menos faciles para consumar el delito. Entonces la
responsibilidad se hace mayor eligiendo un medio que sea un delito en si. El
que puede, haciendo uso de su libertad y de su inteligencia, escoger entre
varios procedimientos para llegar a un fin, y se decide por uno que por si
solo constituye delito, de este delito no necessario para la realizacion del
proyectado como fin, debe responder tambien.
xxx

xxx

xxx

Ejemplo:chanroblesvirtuallawlibrary el allanamiento de domicilio como

medio de llegar al delito de violacion. No es condicion necesaria, para que la
violacion pueda realizarse, el entrar en la morada ajena contra la voluntad
de su dueo. Sin esa circunstancia, el delito puede existir. Ahora bien; chan
roblesvirtualawlibrarysi el criminal acepta como medio de llegar a la
violacion el allanamiento de domicilio, este delito y el de violacion deben ser
castigados observandose en la aplicacion del castigo una unidad de
penalidad que guarde cierta analogia con la unidad de pensamiento que
llevo en culpable a la ralizacion de ambos delitos. Para estos y analogos
casos, la razon aprueba la imposicion de la mas grave de las penas en su
grado maximo. (Groizard, El Codigo Penal de 1870, Tomo II, pp. 495-496.)

Applying the above observations to the crime of rebellion as defined in

Article 134, the same may be committed by merely rising publicly and taking
arms against the government, such as was done on several occasions as
alleged in the information for rebellion in the present case where a group of
Hukbalahaps, entered towns, overpowered the guards at the Presidencia
confiscated firearms and the contents of the municipal treasurers safe,
exacted contributions in the form of money, food-stuffs and clothing from the
residents and maintained virtual control of the town for a few hours. That is
simple but consummated rebellion. Murder, robbery, arson, etc., are not
necessary or indispensable to consummate the crime of rebellion.
But in other cases, this group or other groups of dissidents in order to
facilitate achieving their objective to overthrow the government, according to
the findings of the trial courts in several cases of rebellion, resorted to
looting and robberies to raise funds to finance their movement, sometimes
killing civilians who refused to contribute or to be recruited to augment the
forces of the rebels or who were suspected of giving information to the
government forces of the movements of the dissidents. Sometimes, homes
of town and barrio residents are set on fire and burned to the ground in
reprisal or in order to strike terror into the hearts of the inhabitants, so that
they would be more amenable to the rule and the demands of the rebels. At
other times, civilians were kidnapped for purposes of ransom, and some
hostages killed when the ransom was not paid or was not forthcoming. In the
raid on Camp Macabulos in Tarlac, besides shooting down soldiers and
officers, buildings were set on fire, inducing the hospital, as a result of which,
patients including a Red Cross nurse were killed. In another case, a
passenger bus containing about forty civilian passengers in Sta. Cruz,
Zambales,
was
held
up
by
these
armed
dissidents; chan
roblesvirtualawlibrarythe passengers were robbed of their money and jewelry
and fourteen of them were shot to death. The party of Mrs. Aurora Quezon
while on its way to the town of Baler, was ambushed in Bongabong, Nueva
Ecija by the dissidents and several members of the party, including herself,
her daughter, her son-in-law, Mayor Bernardo of Quezon City, and others
were killed, and their persons despoiled of jewelries and belongings. It is
clear that all these acts of murder, vandalism, banditry and pillage cannot be
regarded as ingredients and indispensable elements of the crime of rebellion.
The aforecited acts and cases, the enumeration of which is far from
complete, are not based on mere suspicion or hearsay. They are alleged as
facts in the numerous counts contained in complaints or informations for
rebellion with multiple murder, robbery, arson, kidnapping, etc. in several
separate cases in the Courts of First Instance, some still pending trial-but
quite a number already decided and now pending appeal before us. There
must be much truth to these charges and counts because in the case against
Huk Supremo Luis Taruc, William Pomeroy et al., (criminal case No. 19166
C.F.I., Manila) Pomeroy pleaded guilty to all the thirty counts against
him; chan roblesvirtualawlibraryso did Taruc after seven counts had been

eliminated from the thirty contained in the information. Among the twenty
three counts remaining to which Taruc pleaded guilty were the holding up of
forty civilians in a passenger bus in Sta. Cruz, Zambales, and the night raid
on Camp Macabulos where hospital patients and a Red Cross nurse were
killed.
Since the above mentioned crimes of multiple murder, robbery, kidnapping,
etc., are not ingredients of rebellion nor indispensable to its commission but
only means selected and employed by the offenders to commit rebellion and
achieve their goal, a complex crime is committed under Article 48 of the
Revised Penal Code.
Going back to the theory of the majority in the resolution that the phrase
engaging in war and committing serious violence used in Article 134, covers
the crimes of murder, robbery, arson, etc., committed during a rebellion, I
emphatically disagree. Engaging in war and levying war, against the
government, are general terms employed in the United States statutes to
define rebellion and treason. They are used interchangeably and have the
same meaning in our law on rebellion and treason, (Articles 114, 134, 135,
Revised Penal Code) which are based on Act 292 of American origin. They do
not necessarily mean actual killing of government troops, much less of
innocent civilians.
Levying War. The assembling of a body of men for the purpose of
effecting by force a treasonable object; chan roblesvirtualawlibraryand all
who perform any part, however, minute, or however remote from the scene
of action, and who are leagued in the general conspiracy, are considered as
engaged in levying war, within the meaning of the constitution. (Bouviers
Law Dictionary, Vol. 2, p. 1938.)
This Tribunal defines levying war in the case of U.S. vs. Lagnason, 3 Phil.,
478-9, thus:chanroblesvirtuallawlibrary
Whatever differences there may have been among the early judges as to
whether an armed resistance to the enforcement of a public law (see Act No.
292, section 5, 1) constituted a levying of war or not, and war or was not
treason, yet they were all unanimous in holding that acts of violence
committed by an armed body of men with the purpose of overthrowing the
Government was levying war against the United States, and was therefore
treason, whether it was done by ten men or ten thousand. (See United States
vs. Hanway, 2 Wall., jr., 139; chan roblesvirtualawlibrary26 Fed. Cases, 105.)
xxx

xxx

xxx

As the act of engaging in a rebellion is levying war, and therefore treason,

the same act seems to be punished by both sections and in different ways.
(U. S. vs. Lagnason, 3 Phil., 48-9.)
Just as a citizen can commit treason by adhering to the enemy and
committing treasonable overt acts such as pointing out and helping arrest

guerrillas, accompanying enemy soldiers on patrol and giving valuable

information to the enemy, without himself killing anyone of his countrymen,
this although Article 114 uses the phrase levying war to define-treason, so,
although Article 135 uses the phrase engaging in war, a group of
individuals may also commit rebellion by merely rising publicly and taking
arms against the government without firing a single shot or inflicting a single
wound.
But the majority says that serious violence mentioned in Article 134 may
include murder. To me, this view is untenable. From serious violence to the
capital offense of murder, certainly, is a far cry. Besides, serious violence can
also be on things. In my opinion, the different acts mentioned in Article 135,
among them, destroying property, committing serious violence, exacting
contributions or diverting public funds, instead of giving license and
unlimited leave to rebels and dissidents to engage in mass murder, looting
and wholesale destruction of property, on the contrary, serve to limit and
restrict the violations of law that may be included in and absorbed by
rebellion. Article 135 mentions those acts which generally accompany a
public armed uprising. When rebels raid a town or barrio, manhandling of
civilians who obstruct their movements or fail to carry out their orders such
as to lend their carabaos and carts for transportation purposes, or to
contribute food, clothes, medicines, money etc., may be expected. The
rebels may employ force to disarm the policeman guarding the Presidencia
and if he offers resistance beat him up or, once inside, break down the door
of the treasurers office, blow up his safe and carry away the money contents
thereof. All these acts involve violence, even serious violence on persons and
things, including diversion of public funds. But knowing that these law
violations, relatively not serious, are generally unavoidable in public armed
uprisings involving hastily assembled persons and groups with little
discipline the law tolerates them, considering them as part of the rebellion.
But when rebels rob innocent civilians, kidnap them for purposes of ransom,
even kill them merely because they fail to pay the ransom, and civilian
houses are put to the torch, endangering the lives of the inmates; chan
roblesvirtualawlibrarywhen civilians are killed for refusing to contribute, or on
mere suspicion of their giving information to the government, I cannot
believe that these brutal act are condoned by the law and are to be included
in the crime of rebellion.
The majority leans heavily on our decisions in several treason cases wherein
we refused or failed to convict of the complex crime of treason with multiple
murder. To me, those cases are neither controlling nor applicable for several
reasons. Almost invariably, indictment in those treason cases alleged the
killings committed by the indictees as ingredients and elements of treason.
They are mentioned as the overt acts to establish and prove treason.
Naturally, the court held that being ingredients of the crime of treason they
cannot be considered as distinct and separate offenses for the purpose of
applying Article 48 of the Revised Penal Code. Another reason is that, treason

being a capital offense, this court did not see any immediate necessity for
considering and applying the theory of complex crime because the result
would in many cases be practically the same. In other words, treason might
yet be said to absorb the crime of homicide, even of murder, because as
regards the penalty, they are of the same category. Still another reason, not
an unimportant one is that at that time, opinion among the members of this
Tribunal on the question of complex crime of treason with homicide, sedition
with murder and rebellion with murder, arson, robbery, etc., had not yet
crystalized, one way or the other. So, we preferred to avoid ruling on the
issue, specially since by considering the commission of murder, robbery, etc.,
in treason as aggravating the crime, we would achieve the same result as
regards the penalty to be imposed.
But in the case of People vs. Perfecto Labra, G.R. No. 1240, May 12, 1949,
this court through Mr. Justice Bengzon, accepted the view of the Solicitor
General that under Article 48 of the Revised Penal Code, Labra was guilty of
the complex crime of treason with murder, as shown by the dispositive part
of
our
decision
in
that
case,
which
is
quoted
below:chanroblesvirtuallawlibrary
Wherefore, the verdict of guilt must be affirmed. Article 48, 114 and 248 of
the Revised Penal Code are applicable to the offense of treason with murder.
However, for lack of sufficient votes to impose the extreme penalty,
the Appellant will be sentenced to life imprisonment.
The only reason why the death penalty was not imposed in said case was
because of lack of sufficient votes but evidently, the Justices were agreed as
to the application of Article 48 of the Penal Code regarding complex crimes.
Then in the treason case of People vs. Barrameda, 85 Phil., 789, 47 Off. Gaz.,
5082, on the strength of our decision in the case of Labra, the Solicitor
General recommended that Barrameda be also convicted of the complex
crime of treason with multiple murder and sentenced to death. This Tribunal
accepted the Solicitor Generals recommendation and imposed the death
penalty in the following language:chanroblesvirtuallawlibrary
We entertain not the least doubt as to the guilt of the Appellant. His very
counsel de oficio who made an analysis of the testimonies of the witnesses
for the prosecution and painstakingly stated them in detail in his brief,
agrees that his client is guilty although he prays that the sentence of life
imprisonment be affirmed. The Solicitor General, however, recommends that
the penalty of death be imposed upon the Appellant. Considering that the
treason committed by the Appellantwas accompanied not only by the
apprehension of Americans (U. S. citizens) and their delivery to the Japanese
forces which evidently later executed them, but also by killing with his own
hands not only one but several Filipinos, his own countrymen, and that in
addition to this, he took part in the mass killing and slaughter of many other
Filipinos, we are constrained to agree to said recommendation. However,
unpleasant, even painful is the compliance with our duty, we hereby impose

upon the Appellant Teodoro Barrameda the penalty of death which will be
carried out on a day to be fixed by the trial court within thirty (30) days after
the return of the record of the case to said court.
With the two aforecited cases, it may not be said that the Supreme Court has
always held that there can be no complex crime of treason with murder.
The theory of the majority is that the crime of rebellion with the maximum
penalty of twelve years and fine, absorbs the other crimes of murder,
robbery, arson, kidnapping, etc., as long as the latter are committed in the
course and in furtherance of the former. The idea of one crime absorbing a
more serious one with a more severe penalty does not readily appeal to the
reasonable and logical mind which can only comprehend a thing absorbing
another smaller or less than itself in volume, in importance, in value or in
category. That is why Judge Montesa in the three cases, People vs.
Hernandez, People vs. Espiritu, and People vs. Medina, criminal cases Nos.
15481, 15479 and 1411 respectively, of the Court of First Instance, Manila, in
his decision convicting the accused therein, in disposing of the theory of
absorption, urged upon him by counsel for the defense to the effect that the
crime of rebellion absorbs the crime of murder, robbery, arson, etc., made
the following observations:chanroblesvirtuallawlibrary
The theory of absorption tenaciously adhered to by the defense to the effect
that rebellion absorbs all these more serious offenses is preposterous to say
the least, considering that it is both physically and metaphysically imposible
for a smaller unit or entity to absorb a bigger one. (Montesa, J., People vs.
Hernandez G.R. No. 15481, P. 78.)
We need not go into an academic discussion of this question because as a
matter of law, my opinion, criminal jurisprudence, expounding the criminal
law namely the Penal Code and the Penal Code of Spain, on which it is based,
expressly and clearly declare that the common crimes of murder, robbery,
arson, etc., committed in the course or by reason of rebellion, are separate
crimes, not to be merged in or absorbed by rebellion and should be
prosecuted separately. Article 259 of the Penal Code of Spain, of 1870 on
which our Penal Code promulgated in 1887, was based, provides as
follow:chanroblesvirtuallawlibrary
Los delitos particulares cometidos en una rebellion o sedicion o con motivo
de ellas, seran castigados respectivamente, segun las disposiciones de este
Codigo.
Cuando no puedan descubrirse sus autores, seran penados como tales los
jefes principales de la rebelion o sedicion. (Groiazrd, El Codigo Penal de
1870, Tomo III, Articulo 259, p. 649.)
In commenting on Article 259
says:chanroblesvirtuallawlibrary

of

the

Spanish

Penal

Code,

Viada

La disposicion del primer parrafo de este articulo no puede ser mas

justa; chan roblesvirtualawlibrarycon arreglo a ella, los delitos particulares o
comunes cometidos en una rebellion o sedicion no deberan reputarse como
accidentes inherentes a estas, sino como delitos especiales a dicha rebellion
y sedicion ajenos, los que deberan ser respectivamente castigados con als
penas que en este Codigo se les sealan. Pero que delitos deberan
considerarse como comunes, y cuales como constitutivos de la propia
rebelion o sedicion? En cuanto a la rebelion, no ofrece este cuestion
dificultad alguna, pues todo hecho que no este comprendido en uno u otro
de los objetos especificados en los seis numeros del Articulo 243 sera
extrao a la rebelion, y si se este debera ser castigado como delito
particular. (Viada, Codigo Penal, Tomo II, 198-199.)
Pea, another commentator, referring to Article 259 of the Spanish Penal
Gode, has the following to say:chanroblesvirtuallawlibrary
La disposicion de este articulo es sobradamente justa, pero cuando se
entendera que el hecho es independiente de la insurgencia? Tratandose de la
rebelion no hay problema, pues todos los fines que se indican en el Articulo
214 se distinguen facilmente de un asesinato, un robo, una violacion, etc. El
problema puede surgir con la sedicion, en cuyos tres ultimos numeros, dice
un autor, se tipifican conductas que muy bien pueden ser subsimidas en
otros lugares del Codigo. El T.S. parece que sigue este principio
general:chanroblesvirtuallawlibrary las infracciones graves se consideran
como delitos independientes, en cambio los hechos de menor gravedad
puedan ser considerados como accidentes de la rebelion. En este sentido, el
T.S. ha declarado que son accidentes de la rebelion, los desacatos y lesiones
a la autoridad y otros delitos contra el orden publico, asi como la resistencia
o acometiendo a la fuerza publica (23 Mayo 1890). El abuso de superioridad
tambien es inherente el alzamiento tumultuario (19 noviembre 1906.) (Pea
Deredes Penal, Tomo II pp. 89-90.)
Another commentator, A. Quintano Ripolles, says of Article 259 of the
Spanish Penal Code, counterpart of Article 244 of our old Penal
Code:chanroblesvirtuallawlibrary
La concurrencia de delitos consignada en este articulo no puede ser mas
justa, bien que la dificultad persista siempre para determinar cuales han de
ser los particulares accidentales y cuales los integrantes de la propia
subversion. Una doctrina demasiado simplista, que ha sido a menudo
seguida por la Jurisprudencia, es la de estimar que, absorbiendo el delito
mas grave al que lo es menos, todo el que por debajo del de rebelion o
sedicion sera anulado por este. Para los del la misma naturaleza, la cosa es
incuestionable, pero no para los que la tengan diversa, entendiendo por la
estraa e imprecisa expresion de (particulares) a las infracciones comunes o
no politicas. (A. Quintano Ripolles, Comentarios al Codigo Penal Vol. II, pp.
101-102; chan roblesvirtualawlibrarycursivas con neustras.)

Another distinguished legal commentator gives his view on the same Article
259:chanroblesvirtuallawlibrary
Se establece aqui que en una rebelion o sedicion, o con motivo de ellas,
comente otros delitos (v. g., roba, mata o lesiona), sera responsable de estos
ademas de los delitos de rebelion o sedicion. La dificultad consiste en estos
casos en separar los accidentes de la rebelion o sedicion de los delitos
independientes de estas, y como las leyes no contienen en este punto
precepto alguno aplicable, su solucion ha quedado encomendada a los
tribunales. La jurisprudencia que estos han sentado considera como
accidentes de la rebelion o sedicion cuya criminalidad queda embebida en
la de estos delitos, y, por tanto, no son punibles especialmente los hechos
de escasa gravedad (v:chanroblesvirtuallawlibraryg., atentados, desacatos,
lesiones menos graves); chan roblesvirtualawlibrarypor el contrario, las
infracciones graves, como el asesinato o las lesiones graves, se consideran
como delitos independientes de la rebelion o del la sedicion. (Cuello Calon,
Vol. 2 Derecho Penal p. 110.)
Finally, Groizard, another eminent commentator of the Penal code of Spain,
in commenting on the same Article 259 of the Spanish Penal Code of 1870,
says the following:chanroblesvirtuallawlibrary
No necesita ninguno el parrafo primero de este articulo. Aunque no se
hubiera escrito en el Codigo, harian los Tribunales lo que dice. Seria
necesario para que asi no sucediera el que fuera la rebelion un motivo de
exencion de responsabilidad criminal para las demas clases de delitos.
(Groizard Tomo 3, 650.)
It will be seen that Spanish jurists and legal commentators are, with
reference to Article 259 of the Spanish Penal Code of 1870, unanimous in the
opinion that this provision of the Criminal Law is just and fair because one
should not take advantage of his committing the crime of rebellion by
committing other more serious crime such as murder, robbery, arson, etc.,
with impunity. The above much commented Article 259 of the Spanish Penal
Code has its counterpart in Article 244 of our old Penal Code in practically
the same wording and phraseology:chanroblesvirtuallawlibrary
ART. 24. All other crimes committed in the course of a rebellion of seditious
movement, or on occasion thereof, shall be punished in accordance with the
rules of this Code.
If the perpetrators of such crimes cannot be discovered, the principal
leaders of the rebellion or sedition shall be punished therefore as principals.
In this jurisdiction, we have faithfully observed and applied this penal
provision. In the cases of U. S. vs. Cabrera, et al., 43 Phil., page 64 and page
82 for sedition and multiple murder respectively, wherein members of the
Philippine constabulary attacked and killed several policemen in the City of
Manila, this Court convicted said soldiers, first, of sedition and later, of
multiple murder, clear proof that the murders committed in the course of and

by reason of the sedition were not included in and absorbed by sedition, this
despite the fact that our law on sedition then, section 5 of Act No. 292, uses
the words rise publicly and tumultuously, in order to attain by force or
outside of legal methods any of the following objects are guilty of sedition. In
the multiple murder case, the sergeants and corporals of the constabulary,
who took part in the killing of the city policemen, were sentenced to death.
This court in that case said:chanroblesvirtuallawlibrary
It is merely stating the obvious to say that sedition is not the same offense
as
murder.
Sedition
is
a
crime
against
public
order; chan
roblesvirtualawlibrarymurder is a crime against persons. Sedition is a crime
directed against the existence of the State, the authority of the government,
and the general public tranquility; chan roblesvirtualawlibrarymurder is a
crime directed against the lives of individuals. (U. S. vs. Abad (1902) 1 Phil.
437.) Sedition in its more general sense is the raising of commotions or
disturbances in the state; chan roblesvirtualawlibrarymurder at common law
is where a person of sound mind and discretion unlawfully kills any human
being, in the peace of the sovereign, with malice aforethought, express or
implied.
The offenses charged in the two informations for sedition and murder are
perfectly distinct in point of law, however, nearly they may be connected in
point of fact. Not alone are the offenses eo nomine different, but the
allegations in the body of the informations are different. The gist of the
information for sedition is the public and tumultuous uprising of the
constabulary in order to attain by force and outside of legal methods the
object of indicting an act of hate and revenge upon the persons of the police
force of the city of Manila by firing at them in several places in the city of
Manila; chan roblesvirtualawlibrarythe gist of the information in the murder
case is that the constabulary, conspiring together, illegally and criminally
killed eight persons and gravely wounded three others. The crimes of murder
and serious physical injuries were not necessarily included in the information
for sedition; chan roblesvirtualawlibraryand the Defendants could not have
been convicted of these crimes under the first information. (Phil. Vol. 43,
pages 99-100.)
There is an insinuation made in the majority resolution, that the American
Law on sedition and rebellion, the origin of our present law on the subject, is
more benign and liberal than its counterpart in the Spanish Penal Code,
defining and penalizing sedition and rebellion, and that under American
jurisprudence, rebellion and sedition include crimes like murder, robbery,
arson, etc., committed in the course thereof. But it will be noticed that of the
nine Justices who signed the decision in the case of People vs. Cabrera for
multiple murder, five, including Mr. Justice Malcolm, who penned the
decision, were Americans, supposed to be steeped in American Law and the
common law, and yet they all held that sedition where force is expected to
be used, did not, include murder. It is evident that the insinuation made in
the majority resolution is not exactly borne out by the Cabrera case.

The majority asks why in the past, especially up to 1932, when our Revised
Penal Code was promulgated no one had ever been prosecuted, much less
convicted of rebellion or sedition complexed with murder, robbery, etc., if it
is true that there is such a complex crime of rebellion with murder. For that
matter, one may even ask why the constabulary soldiers in the Cabrera case
were not charged with the complex crime of sedition with murder. The reason
and the answer are obvious. Until 1932, the year of the promulgation of our
Revised Penal Code, our old Penal Code included Article 244, the counter-part
of Article 259 of the Spanish Penal Code, to the effect that common crimes
like murder, robbery, arson, committed on the occasion or by reason of a
rebellion or sedition, are to be prosecuted separately. That was why
insurgents who committed rebellion or insurrection with homicide or murder
during the first days of the American regime in the Philippines, could not be
charged with the complex crime of rebellion with murder; chan
roblesvirtualawlibraryand that explains why Cabrera and his co-accused
could not be charged with the complex crime of sedition with multiple
murder, but were prosecuted separately for multiple murder.
The majority also asks why the insurgents in the year 1901 and 1902 were
charged only with rebellion but never with murder despite the fact that there
was proof that they also had committed murder in the course of the rebellion
or insurrection. The reason to my mind was that, shortly thereafter, came the
proclamation of amnesty issued by President McKinley of the United States,
which amnesty covered not only the crime of rebellion but also other
violations of the law committed in the course of the rebellion.
Then came our Revised Penal Code promulgated in 1932. It is a revision of
our old Penal Code of 1887. One of the purposes of the revision was
simplification, and elimination of unnecessary provisions. In proof of this,
while our Penal Code of 1887 contained 611 articles, our Revised Penal Code
contains only 367 articles. Among the articles of the old Penal Code not
included in the Revised Penal Code, is Article 244. Does the omission or
elimination of Article 244 mean that now, common crimes like murder,
robbery, arson, etc., committed in the course of a rebellion or sedition are
absorbed by rebellion or sedition? Hardly. It cannot be that the committee on
revision and our legislators abandoned the idea and the theory contained in
said Article 244, because as I have already explained, all the Spanish
commentators and jurists commenting on this particular provision of the
Spanish Penal Code are agreed that it is a just and reasonable provision, so
that sedition and rebellion may not be utilized as a cloak of immunity in the
commission of other serious crimes. To me, the reason for the omission is
that it was really unnecessary. As Groizard said in his commentary already
reproduced, even if that provision were not embodied in the penal code, the
court would still apply said provision:chanroblesvirtuallawlibrary
No necesita ninguno el parrafo primero de este articulo. Aunque no se
hubiera excrito en el Codigo, harian los Tribunales lo que dice. Seria
necesario para que asi no sucediera el que fuera la rebelion un motivo de

exencion de responsabilidad criminal para las demas clases de delitos.

(Groizard Tomo 3, 650.)
The members of the committee on revision of our old Penal Code who must
have been familiar with the opinion and comments of eminent Spanish
jurists, particularly the above comment of Groizard undoubtedly, deemed the
provision of Article 244 superfluous and unnecessary, and so omitted it in the
revision. However, this omission of Article 244 of our Penal Code in the new,
has an important effect. No longer shall we be obliged to prosecute murder,
robbery, arson, kidnapping, etc., committed in the course of and by reason of
a sedition or a rebellion, separately. The prosecution is now free to combine
these common crimes with the crimes of sedition or rebellion and charge a
complex crime. And that is what has been done in the prosecution of the
numerous cases of rebellion.
This idea, this theory of complex crime of rebellion with multiple murder,
etc., is not such a strange, extravagant or fantastic proposition or idea. We
are not the only ones holding this view. Out of seven separate cases, all
involving the complex crime of rebellion with multiple murder and etc.,
decided in the Court of First Instance, not long ago, cases No. 14070
People vs. Lava; chan roblesvirtualawlibraryNo. 15841 People vs.
Hernandez; chan
roblesvirtualawlibraryNo.
2878

People
vs.
Capadocia; chan roblesvirtualawlibraryNo. 10400 People vs. Salvador No.
2704 People vs. Nava; chan roblesvirtualawlibraryNo. 19166 People vs.
Pomeroy and the same case 19166 People vs. Taruc, only one judge, Hon.
Gregorio Narvasa, of the Court of First Instance of Manila, held that there is
no complex crime of rebellion with murder, and his holding was based mainly
if not entirely on the decisions of this Tribunal in the treason cases which as I
have already explained, are not controlling or applicable. In the other cases,
five judges of Courts of First Instance, Judges Ocampo, Castelo, Barcelona,
Gatmaitan, and Montesa, held that there is such a complex crime of rebellion
with murder and actually convicted the accused of said complex crime.
Again, in the case of People vs. Umali, et al., criminal case No. 11037 of the
Court of First Instance of Quezon Province, Judge Gustavo Victoriano,
convicted the accused of the complex crime of rebellion with multiple
murder, etc. Recently, in several criminal cases pending in Pangasinan,
involving the complex crimes of rebellion with multiple murder, etc., Judge
Morfe of the Court of First Instance of that province acting upon motions to
quash the informations on the ground that there was no such complex crime
of rebellion with murder and consequently, the informations were not in
accordance with law, for charging more than one offense, in a well reasoned
and considered order, denied the same and held that there is a complex
crime of rebellion with murder. Of course, these opinions of judges of the
lower courts are not binding on this tribunal but surely, they are persuasive
and cannot be ignored. At least, they show that there are others, learned in
the law, who subscribe to the theory of complex crime of rebellion with
murder, arson, etc.

Our decision in the case of People vs. Umali, (96 Phil., 185), promulgated on
November 29, 1954, is another proof that murders committed in the course
of sedition or rebellion are not absorbed by the latter. In said case, this court
in a unanimous decision found the Defendants therein guilty of sedition,
multiple murder, arson, frustrated murder and physical injuries and
sentenced them accordingly. The question may again be asked, if there is
such a complex crime of sedition with murder, arson, etc., why were Umali
and his co-accused not convicted of this complex crime? The answer is found
in
a
portion
of
our
decision
in
that
case
which
we
quote:chanroblesvirtuallawlibrary
The last point to be determined is the nature of the offense or offenses
committed. Appellantswere charged with and convicted of the complex crime
of rebellion with multiple murder, frustrated murder, arson and robbery. Is
there such a complex crime of rebellion with multiple murder, etc.? While the
Solicitor General in his brief claims that Appellants are guilty of said complex
crime and in support of his stand asks for leave to incorporate by reference
his previous arguments in opposing Umalis petition for bail, counsel
for Appellants considered it unnecessary to discuss the existence or nonexistence of such complex crime, saying that the nature of the crime
committed is of no moment to herein Appellants because they had
absolutely no part in it whatsoever. For the present, and with respect to this
particular case, we deem it unnecessary to decide this important and
controversial question, deferring its consideration and determination to
another case or occasion more opportune, when it is more directly and
squarely raised and both parties given an opportunity to discuss and argue
the question more adequately and exhaustively. Considering that, assuming
for the moment that there is no such complex crime of rebellion with
murder; chan
roblesvirtualawlibraryetc.,
and
that
consequentlyAppellants could not have been legally charged with it, much
less convicted of said complex crime, and the information should therefore,
be regarded as having charged more than one offense, contrary to Rule 106,
section 12 and Rule 113, section 2(e), of the Rules of Court, but
that Appellants having interposed no objection thereto, they were properly
tried for and lawfully convicted if guilty of the several and separate crimes
charged therein, we have decided and we rule that the Appellants may
properly be convicted of said several and separate crimes, as hereinafter
specified. We feel particularly supported and justified in this stand that we
take, by the result of the case, namely, that the prison sentence we impose
does not exceed, except perhaps in actual duration, that meted out by the
court below, which is life imprisonment.
The majority resolution invokes and applies the principle of the so called pro
reo in connection with Article 48 of our Revised Penal Code on complex
crimes, to the effect that said article should not be applied when the
resulting penalty exceeds the sum total of the several crimes committed
constituting the complex crime. According to the majority, the theory of pro

reo is that the principle of complex crime was adopted for the benefit of the
accused and not to his prejudice; chan roblesvirtualawlibraryso, it is to be
applied when the maximum of the penalty for the more serious crime is less
in severity or duration of imprisonment than the sum total of the several
crimes committed, but not otherwise. This is a novel theory in this
jurisdiction. To my knowledge it has never been advanced before. All along
and during all these years, the courts of this country not excluding this
august tribunal had been applying the provisions of Article 48 of the Revised
Penal Code, and its source, Article 89 of our Penal Code of 1887, regardless
of whether or not the resulting penalty was prejudicial to the accused. As a
matter of fact, in most cases the resulting penalty imposed by this tribunal in
complex crimes was much more severe and of longer duration
(imprisonment) than the sum total of the two or more crimes committed. In
the numerous cases decided by this court involving the complex crime of
estafa through falsification, the maximum of the penalty for the more serious
crime of falsification was imposed although it exceeded the total of the
penalties for estafa and for falsification. In cases of rape with physical
injuries the maximum of the penalty for the crime of rape was imposed
although it exceeded in duration and severity the total of the penalty for
rape and that for the relatively light penalty for physical injuries. In the case
of People vs. Parulan (88 Phil., 615), involving the complex crime of
kidnapping with murder, this tribunal applied the provision of Article 48 of
the Revised Penal Code and would have sentenced the accused to death,
were it not for one dissenting vote based not on the applicability of Article
48,
but
on
the
question
of
jurisdiction.
Said
this
court:chanroblesvirtuallawlibrary
La pena que debe imponerse al acusado Parulan es la del delito mas grave
de secuestro en su grado maximo, o sea, pena capital. Pero el Magistrado Sr.
Tuason, consecuente con su opinion disidente en Parulan contra Rodas,
supra, no puede confirmar la pena capital impuesta por el Juzgado de
Primera Instancia de Manila que segun el no tenia jurisdiccion sobre la
presente causa. En vista de este voto disidente, el presidente del tribunal Sr.
Paras y tres magistrados aunque creen que el acusado Parulan, por las
pruebas presentadas, merece pena capital, con todo no pueden votar por la
comfirmacion porque el delito se cometio antes de la aprobacion de la Ley de
la Republica No. 296, que solo exige ocho votos para la imposicion de la
pena capital. Antomaticamente, por ministerio de la ley debe imponerse a
Parulan la pena inmediatamente inferior a la de muerte, que es la de
reclusion perpetua con las accesorias. (88 Phil., p. 624.)
Then in the case of People vs. Guillen * 47 Off. Gaz., 3433, involving the
complex crime of murder and multiple attempted murder committed by the
accused with a single act of hurling a hand grenade at President Roxas, this
tribunal in a per curiam decision, ignoring the aggravating circumstances
that attended the commission of the crime, applied the maximum of the
penalty for the more serious crime of murder in accordance with Article 48 of

the Revised Penal Code and sentenced the accused to death. Other instances
and cases may be cited ad libitum to show that in this jurisdiction and in this
tribunal, the principle of pro reo was never entertained, much less accepted.
Origin of pro reo principle
Up to the year 1908, the Spanish Penal Code had the following provisions for
complex crimes:chanroblesvirtuallawlibrary
Las disposiciones del articulo anterior no son aplicables en el caso de que
un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea
medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas
grave, aplicandola en su grado maximo.
The above provisions were copied in our Penal Code of 1887 under Article 89
which reads thus:chanroblesvirtuallawlibrary
The provisions of the next preceding article are not applicable to cases in
which a single act constitutes two or more crimes, or when one offense is a
necessary means for committing the other.
In these cases, only the penalty of the more serious crime shall be imposed,
the same to be applied in its maximum degree.
On January 3, 1908, the Spanish Penal Code was amended, particularly
paragraph 2 of Article 90 thereof so as to add to said paragraph the following
clause:chanroblesvirtuallawlibrary
Hasta el limite que represente la suma de las dos que pudieran imponerse,
penando separadamente ambos delitos.
so that since January 1908, Article 90 of the Spanish Penal Code
reads:chanroblesvirtuallawlibrary
Las disposiciones del articulo anterior no son aplicables en el caso de que
un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea
medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas
grave, aplicandola en eu grado maximo hasta el limite que represente la
suma de las dos que pudieran imponerse, penando separadamente ambos
delitos.
The amendment is the provision for the so called pro reo rule. But we never
accepted much less followed said innovation in the Philippines. We did not
amend Article 89 of our old Penal Code particularly paragraph 2 thereof so as
to add the clause:chanroblesvirtuallawlibrary
Hasta el limite que represente la suma de las dos que pudieran imponerse,
penando separadamente ambos delitos.

inserted by the amending Spanish Law of January 3, 1908 to the second

paragraph of Article 90 of the Spanish Penal Code. Furthermore, when we
drafted and promulgated our Revised Penal Code in 1932 (Article No. 3815)
we ignored and did not accept the amendment to the Spanish Penal Code
that favored one accused of a complex crime as regards the penalty, so that
now our law on the subject is contained in Article 48 of the Revised Penal
Code
which
as
amended
by
Act
No.
4000,
reads
as
follows:chanroblesvirtuallawlibrary
ART. 48. Penalty for complex crimes. When a single act constitutes two or
more grave or less felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. (As amended by Act
No. 4000.)
The majority resolution makes a more or less extensive dissertation and
citation of authorities on the law of extradition, intended to show that
common crimes such as murder, etc., committed on the occasion of or in the
course of the commission of political crimes like sedition and rebellion, are
not subject to extradition. We believe that these citations and these
arguments are neither relevant nor applicable. All we can say is that a
murder committed in the course of a rebellion or sedition may be considered
a political crime in contemplation of the extradition law and that a person
accused of said murder is not subject to extradition. But a crime may be
considered political from the standpoint of the extradition law and yet may
be regarded by the country where committed as a common crime separate
and distinct from the rebellion or sedition in the course of which it was
committed, and, consequently, subject to prosecution. Moreover, the fact
that a murder committed in the course of a sedition or rebellion is excluded
from the scope of the extradition agreement between nations, is proof and
argument that were it not for its exclusion, the member nations of the
extradition agreement, where murders are committed in the course of a
rebellion or sedition may and would extradite the offenders, on the theory
that said murders are separate from and are not absorbed by the rebellion or
sedition; chan roblesvirtualawlibraryotherwise, there would be no need for
excluding such crimes of murder, arson, etc., committed during a rebellion or
sedition, from the scope of the extradition law. And among such nations
which consider these common crimes of murder, etc., as separate from
rebellion or sedition during which they were committed, are Spain, as shown
by Article 259 of its Penal Code, and the Philippines as illustrated in the cases
of U.S. vs. Cabrera and People vs. Umali, supra. Groizard lists down several
countries that consider common crimes committed during a rebellion or
sedition as subject to prosecution:chanroblesvirtuallawlibrary
Codigo del Canton de Zurich.

S. 75. Si con motivo de la sedicion o como consecuencia fueren cometidos

otros delitos, estos seraan castigados conforme a las disposiciones penales
para los mismos fijadas.
Codigo de Peru.
ART. 145. Los reos de rebelion, sedicion o asonada son responsables de los
delitos especiales que cometen, observandose lo dispuesto en el Articulo 45.
ART. 146. Si no pudiese averiguarse quien de los sublevados cometio el
delito especial, se hara responsable a los autores del tumulto.
Codigo del Chile.
ART. 131. Los delitos particulares cometidos en un sublevacion o con motivo
de ella, seran castigados respectavamente con las penad designadas para
ellos, no obstante le dispuesto en el articulo 129. Si no pueden decubrirse
los autores, seran considerados y penados como complices de tales delitos
los jefes principales o subalternos de los sublevados que hallandose en la
posibilidad de impedirlos no lo hubieren hecho.
Codigo del Paraguay.
ART. 380. Los delitos particulares cometidos en la sedicion o con motivo de
ella, seran castigados con la pena que les corresponda por las leyes
respectivas.
Codigo de la Republica Argentina.
ART. 231. Los que cometen delitos comunes con motivo de la rebelion motin
o asonada o con ocasion de ella, seran castigados con la pena que
corresponde a esos delitos.
Codigo de Honduras.
ART. 224. (Como el nuestro.)
(Groizard, El Codigo Penal de 1870, Vol. 3, Articulo 259, p. 650.)
In justice to the Defendants-Appellants in the present case, I wish to explain
and make clear that in mentioning and describing the serious crimes of
murder, robbery, arson, kidnapping, etc., alleged to have been committed in
the course of the rebellion or by reason thereof, I am not referring
particularly to the charge or charges and counts alleged against them. Their
case is now pending appeal in this tribunal and their guilt or innocence of
said charges or counts will be decided in due time. And so, I am not imputing
or attributing to them the serious violations of law I have mentioned in this
opinion. Rather, I am making general reference to the informations filed in
other cases, especially in the informations against Luis Taruc and William
Pomeroy which case is not only decided but also is closed.
In conclusion, I hold that under the law and under general principles rebellion
punished with a maximum penalty of twelve (12) years and fine cannot
possibly absorb a much more serious crimes like murder or kidnapping which

are capital offenses and carry the maximum penalty of death. It is hard for
the mind to grasp the idea that a person committing one lone murder may
be headed for the electric chair; chan roblesvirtualawlibrarybut if perpetrates
several murders, kidnappings, arsons, and robberies and during their
perpetration, was still committing another crime, that of trying to overthrow
his own government by force, then all he gets is twelve years and fine. Since,
the serious crimes like multiple murder, robbery, arson, kidnapping, etc.,
committed during the rebellion are not ingredients of, nor are they
indispensable to the commission of rebellion, and were but means freely
selected by the rebels to facilitate their commission of rebellion or to achieve
and speed up their realization of their object, which was to overthrow the
government and implant their own system said to be of communistic
ideology, then under Article 48 of the Revised Penal Code, the complex crime
of rebellion with murder, etc., was committed.
Judging by the numerous acts of atrocity contained in the several
informations filed against the rebels in different cases, not only government
soldiers and officers, but innocent civilians by the hundreds were murdered.
Stores and homes were looted; chan roblesvirtualawlibrarynot only public
buildings, like presidencias and government hospitals, but also private
buildings and homes were burned to the ground. And as a result of these
acts of terrorism, entire barrios were abandoned and landowners, especially
owners of landed estates, evacuated to the provincial capitals or to the cities
for personal security. And it seems that these acts of banditry and pillage still
continue though on a smaller scale.
Settled public policy or the policy of the Government as regards rebellion and
the crimes against persons and property committed by the rebels is clear.
With their taxes, the citizens are maintaining a large army to put down the
rebellion. Substantial rewards ranging from P500 to P100,000 are offered for
the apprehension of the rebels, specially the leaders. A rebel leader with a
P100,000 price on his head, after a campaign of several years by the army,
and after the loss of lives of many soldiers and civilian guides, is finally
captured. The government pays down the P100,000 to those responsible for
the capture and charges him with the complex crime of rebellion with
multiple murder, kidnapping, etc., a capital offense. Pending trial, he asks
to be released on bail and under the doctrine being laid down by us, he is set
at liberty, free to go back to the hills to resume his dissident activities where
he left off, by merely posting a bond corresponding to a maximum
imprisonment of twelve years (P12,000) and a fine the amount of which is
left to the discretion of the trial court. If he jumps his bail and assuming that
the full amount of the bond is confiscated, still, the Government which paid
P100,000 for his capture is the loser. It will have to wage another campaign
to recapture him and perhaps offer another reward for his apprehension. This
would illustrate the wide divergence between the policy of the Government
and the present ruling of the Court. That is not as it should be. The three
departments of the Government, the Executive, the Legislative and the

Judicial Department, though independent of each other, should function as a

team, harmoniously, and in cooperation, all for the public welfare. They
cannot work at cross purposes. All three should be guided by the settled
public policy of the state and this applies to the courts. In the case of Rubi
vs. provincial board of Mindoro, 39 Phil., pp. 718-19, this court speaking
about the relation between interpretation of the law by the courts and public
policy, said:chanroblesvirtuallawlibrary
As a point which has been left for the end of this decision and which, in case
of doubt, would lead to the determination that section 2145 is valid, is the
attitude which the courts should assume towards the settled policy of the
Government. In a late decision with which we are in full accord, Gamble vs.
Vanderbilt University (200 Southwestern Reporter 510) the Chief of Justice of
the Supreme Court of Tennessee writes:chanroblesvirtuallawlibrary
We can see no objection to the application of public policy as a ratio
decidendi. Every really new question that comes before the courts is, in the
last analysis, determined on the theory, when not determined by
differentiation of the principle of a prior case or line of cases, or by the aid of
analogies furnished by such prior cases. In balancing conflicting solutions,
that one is perceived to tip the scales which the court believes will best
promote the public welfare in its probable operation as a general rule or
principle.
Justice Holmes, in one of the aphorisms for which he is justly famous, said
that constitutional law, like other mortal contrivances, has to take some
chances. (Blinn vs. Nelson [1911] 222 U.S., 1.) If in the final decision of the
many grave questions which this case presents, the court must take a
chance, it should be, with a view to upholding the law, with a view to the
effectuation of the general governmental policy, and with a view to the
courts performing its duty in no narrow and bigoted sense, but with that
broad conception which will make the courts as progressive and effective a
force as are the other departments of the Government.
Now, by the majority resolution, this Court would spread the mantle of
immunity over all these serious crimes against persons and property on the
theory that they are all covered by, included in, and absorbed by the crime
of rebellion. Under this protective mantle extended by us, instead of curbing
and discouraging the commission of these common serious crimes in
accordance with public policy, the commission of said crimes would be
encouraged. No longer would evil-minded men, outlaws, bandits, hesitate to
kill and rob and kidnap, because by pretending to be rebels or to be engaged
in rebellion, their acts of atrocity would be covered by rebellion, for which
they would get, at most, twelve (12) years and fine. No longer would the
spectre of the death penalty and the electric chair hang sword of Damocleslike over the heads of would be kidnappers, murderers and arsonists because
by merely claiming to have committed another additional crime, rebellion,
under the doctrine laid down by the majority resolution, capital punishment

for all capital crimes they have committed or may commit, is automatically
reduced to twelve (12) years and fine. It is evident that the effect of the
interpretation by this Court of the law on complex crimes, in relation to
rebellion and the common serious crimes committed during and in the
course thereof, runs counter to the settled public policy on the subject.
Sad, indeed, is the role being played by this Tribunal in laying down a
doctrine of such far reaching consequences and in my opinion of such
baneful not to say disastrous effects on peace and order and personal
security, diametrically and utterly opposed to settled public policy, when
after all, we have now the opportunity and the choice of accepting and
adopting another view, another interpretation of the law on complex crimes,
to be more reasonable, more logical and certainly, more in accordance with
public policy, and more in keeping with peace and order, personal security
and the public welfare.
For the foregoing reasons, I dissent.
Endencia, JJ., concurs.
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE
ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of
Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO
TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY
ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL
BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN.
EDGAR DULA TORRES (Superintendent of the Northern Police
District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL
CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.
G.R. No. 92164 June 5, 1990
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE,
FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON.
JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional
Trial Court, Quezon City, Branch 103, respondents.

NARVASA, J.:
Thirty-four years after it wrote history into our criminal jurisprudence, People
vs. Hernandez 1 once more takes center stage as the focus of a confrontation
at law that would re-examine, if not the validity of its doctrine, the limits of
its applicability. To be sure, the intervening period saw a number of similar
cases 2 that took issue with the ruling-all with a marked lack of success-but
none, it would Beem, where season and circumstance had more effectively
conspired to attract wide public attention and excite impassioned debate,
even among laymen; none, certainly, which has seen quite the kind and
range of arguments that are now brought to bear on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate
Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement
officers led by Director Alfredo Lim of the National Bureau of Investigation on
the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial
Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant
had issued on an information signed and earlier that day filed by a panel of
prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State
Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio
Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda
Panlilio, and Gregorio Honasan with the crime of rebellion with murder and
multiple frustrated murder allegedly committed during the period of the
failed coup attempt from November 29 to December 10, 1990. Senator Enrile
was taken to and held overnight at the NBI headquarters on Taft Avenue,
Manila, without bail, none having been recommended in the information and
none fixed in the arrest warrant. The following morning, February 28, 1990,
he was brought to Camp Tomas Karingal in Quezon City where he was given
over to the custody of the Superintendent of the Northern Police District,
Brig. Gen. Edgardo Dula Torres. 3
On the same date of February 28, 1990, Senator Enrile, through counsel,
filed the petition for habeas corpusherein (which was followed by a
supplemental petition filed on March 2, 1990), alleging that he was deprived
of his constitutional rights in being, or having been:
(a) held to answer for criminal offense which does not exist in the
statute books;

(b) charged with a criminal offense in an information for which no

complaint was initially filed or preliminary investigation was
conducted, hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued
without the judge who issued it first having personally
determined the existence of probable cause. 4
The Court issued the writ prayed for, returnable March 5, 1990 and set the
plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General
filed a consolidated return 6 for the respondents in this case and in G.R. No.
921647 Which had been contemporaneously but separately filed by two of
Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and
raised similar questions. Said return urged that the petitioners' case does not
fall within the Hernandezruling because-and this is putting it very simply-the
information in Hernandez charged murders and other common crimes
committed as a necessary means for the commission of rebellion, whereas
the information against Sen. Enrile et al.charged murder and frustrated
murder committed on the occasion, but not in furtherance, of
rebellion. Stated otherwise, the Solicitor General would distinguish between
the complex crime ("delito complejo") arising from an offense being a
necessary means for committing another, which is referred to in the second
clause of Article 48, Revised Penal Code, and is the subject of
the Hernandez ruling, and the compound crime ("delito compuesto") arising
from a single act constituting two or more grave or less grave offenses
referred to in the first clause of the same paragraph, with
which Hernandez was not concerned and to which, therefore, it should not
apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990,
after which the Court issued its Resolution of the same date 8 granting
Senator Enrile and the Panlilio spouses provisional liberty conditioned upon
their filing, within 24 hours from notice, cash or surety bonds of P100,000.00
(for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The
Resolution stated that it was issued without prejudice to a more extended
resolution on the matter of the provisional liberty of the petitioners and
stressed that it was not passing upon the legal issues raised in both cases.

Four Members of the Court 9 voted against granting bail to Senator Enrile,
and two 10 against granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated
in Senator Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following
options:
(a) abandon Hernandez and adopt the minority view expressed in
the main dissent of Justice Montemayor in said case that
rebellion cannot absorb more serious crimes, and that under
Article 48 of the Revised Penal Code rebellion may properly be
complexed with common offenses, so-called; this option was
suggested by the Solicitor General in oral argument although it is
not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in
furtherance, or as a necessary means for the commission, of
rebellion, but not to acts committed in the course of a rebellion
which also constitute "common" crimes of grave or less grave
character;
(c) maintain Hernandez as applying to make rebellion absorb all
other offenses committed in its course, whether or not necessary
to its commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against
abandoning Hernandez. Two (2) Members felt that the doctrine should be reexamined. 10-A In the view of the majority, the ruling remains good law, its
substantive and logical bases have withstood all subsequent challenges and
no new ones are presented here persuasive enough to warrant a complete
reversal. This view is reinforced by the fact that not too long ago, the
incumbent President, exercising her powers under the 1986 Freedom
Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of
the
former
regime
which
precisely
sought
to
nullify
or
neutralize Hernandez by enacting a new provision (Art. 142-A) into the
Revised Penal Code to the effect that "(w)hen by reason, or on the occasion,
of any of the crimes penalized in this Chapter (Chapter I of Title 3, which
includes rebellion), acts which constitute offenses upon which graver
penalties are imposed by law are committed, the penalty for the most

serious offense in its maximum period shall be imposed upon the

offender."' 11In thus acting, the President in effect by legislative flat
reinstated Hernandez as binding doctrine with the effect of law. The Court
can do no less than accord it the same recognition, absent any sufficiently
powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory
that Hernandez is, or should be, limited in its application to offenses
committed as a necessary means for the commission of rebellion and that
the ruling should not be interpreted as prohibiting the complexing of
rebellion with other common crimes committed on the occasion, but not in
furtherance, thereof. While four Members of the Court felt that the
proponents' arguments were not entirely devoid of merit, the consensus was
that they were not sufficient to overcome what appears to be the real thrust
of Hernandez to rule out the complexing of rebellion with any other offense
committed in its course under either of the aforecited clauses of Article 48,
as is made clear by the following excerpt from the majority opinion in that
case:
There is one other reason-and a fundamental one at that-why
Article 48 of our Penal Code cannot be applied in the case at bar.
If murder were not complexed with rebellion, and the two crimes
were punished separately (assuming that this could be done),
the following penalties would be imposable upon the movant,
namely: (1) for the crime of rebellion, a fine not exceeding
P20,000 and prision mayor, in the corresponding period,
depending upon the modifying circumstances present, but never
exceeding 12 years of prision mayor, and (2) for the crime of
murder, reclusion temporal in its maximum period to death,
depending upon the modifying circumstances present. in other
words, in the absence of aggravating circumstances, the
extreme penalty could not be imposed upon him. However,
under Article 48 said penalty would have to be meted out to
him, even
in
the
absence
of
a
single
aggravating
circumstance. Thus, said provision, if construed in conformity
with the theory of the prosecution, would be unfavorable to the
movant.
Upon the other hand, said Article 48 was enacted for the purpose
of favoring the culprit, not of sentencing him to a penalty more

severe than that which would be proper if the several acts

performed by him were punished separately. In the words of
Rodriguez Navarro:
La unificacion de penas en los casos de concurso de
delitos a que hace referencia este articulo (75 del
Codigo de 1932), esta basado francamente en el
principio pro reo.' (II Doctrina Penal del Tribunal
Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71
(later 75) of the Spanish Penal Code (the counterpart of our
Article 48), as amended in 1908 and then in 1932, reading:
Las disposiciones del articulo anterior no son
aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de
ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena
correspondiente al delito mas grave en su grado
maximo, hasta el limite que represents la suma de
las
que
pudieran
imponerse,
penando
separadamente los delitos.
Cuando la pena asi computada exceda de este limite,
se sancionaran los delitos por separado. (Rodriguez
Navarro, Doctrina Penal del Tribunal Supremo, Vol. II,
p. 2163)
and that our Article 48 does not contain the qualification inserted
in said amendment, restricting the imposition of the penalty for
the graver offense in its maximum period to the case when it
does not exceed the sum total of the penalties imposable if the
acts charged were dealt with separately. The absence of said
limitation in our Penal Code does not, to our mind, affect
substantially the spirit of said Article 48. Indeed, if one act
constitutes two or more offenses, there can be no reason to
inflict a punishment graver than that prescribed for each one of
said offenses put together. In directing that the penalty for the
graver offense be, in such case, imposed in its maximum period,

Article 48 could have had no other purpose than to prescribe a

penalty lower than the aggregate of the penalties for each
offense, if imposed separately. The reason for this benevolent
spirit of article 48 is readily discernible. When two or more crimes
are the result of a single act, the offender is deemed less
perverse than when he commits said crimes thru separate and
distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of
the penalty for the more serious one, on the assumption that it is
less grave than the sum total of the separate penalties for each
offense. 12
The rejection of both options shapes and determines the primary ruling of
the Court, which is that Hernandezremains binding doctrine operating to
prohibit the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence
is not here inquired into, much less adjudged. That is for the trial court to do
at the proper time. The Court's ruling merely provides a take-off point for the
disposition of other questions relevant to the petitioner's complaints about
the denial of his rights and to the propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed
against the petitioner does in fact charge an offense. Disregarding the
objectionable phrasing that would complex rebellion with murder and
multiple frustrated murder, that indictment is to be read as charging simple
rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the
amended information against defendant-appellant Amado V.
Hernandez, the murders, arsons and robberies described therein
are mere ingredients of the crime of rebellion allegedly
committed by said defendants, as means "necessary" (4) for the
perpetration
of
said
offense
of
rebellion;
that
the
crime charged in the aforementioned amended information is,
therefore, simple rebellion, not the complex crime of rebellion
with multiple murder, arsons and robberies; that the maximum
penalty imposable under such charge cannot exceed twelve (12)

years of prision mayor and a fine of P2H,HHH; and that, in

conformity with the policy of this court in dealing with accused
persons amenable to a similar punishment, said defendant may
be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does
not exist in the statute books, while technically correct so far as the Court
has ruled that rebellion may not be complexed with other offenses
committed on the occasion thereof, must therefore be dismissed as a mere
flight of rhetoric. Read in the context of Hernandez, the information does
indeed charge the petitioner with a crime defined and punished by the
Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed
and/or preliminary investigation conducted? The record shows otherwise,
that a complaint against petitioner for simple rebellion was filed by the
Director of the National Bureau of Investigation, and that on the strength of
said complaint a preliminary investigation was conducted by the respondent
prosecutors, culminating in the filing of the questioned information. 14 There
is nothing inherently irregular or contrary to law in filing against a
respondent an indictment for an offense different from what is charged in the
initiatory complaint, if warranted by the evidence developed during the
preliminary investigation.
It is also contended that the respondent Judge issued the warrant for
petitioner's arrest without first personallydetermining the existence of
probable cause by examining under oath or affirmation the complainant and
his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court
has already ruled, however, that it is not the unavoidable duty of the judge
to make such a personal examination, it being sufficient that he follows
established procedure by personally evaluating the report and the supporting
documents submitted by the prosecutor. 16 Petitioner claims that the warrant
of arrest issued barely one hour and twenty minutes after the case was
raffled off to the respondent Judge, which hardly gave the latter sufficient
time to personally go over the voluminous records of the preliminary
investigation. 17 Merely because said respondent had what some might
consider only a relatively brief period within which to comply with that duty,
gives no reason to assume that he had not, or could not have, so complied;
nor does that single circumstance suffice to overcome the legal presumption
that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the
Court's reaffirmation of Hernandezas applicable to petitioner's case, and of
the logical and necessary corollary that the information against him should
be considered as charging only the crime of simple rebellion, which is
bailable before conviction, that must now be accepted as a correct
proposition. But the question remains: Given the facts from which this case
arose, was a petition for habeas corpus in this Court the appropriate vehicle
for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for
invoking the petitioner's right to have provisional liberty pending trial and
judgment. The original jurisdiction to grant or deny bail rested with said
respondent. The correct course was for petitioner to invoke that jurisdiction
by filing a petition to be admitted to bail, claiming a right to bail per se by
reason of the weakness of the evidence against him. Only after that remedy
was denied by the trial court should the review jurisdiction of this Court have
been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling,
the information charges a non-existent crime or, contrarily, theorizing on the
same basis that it charges more than one offense, would not excuse or justify
his improper choice of remedies. Under either hypothesis, the obvious
recourse would have been a motion to quash brought in the criminal action
before the respondent Judge. 18
There thus seems to be no question that All the grounds upon which
petitioner has founded the present petition, whether these went into the
substance of what is charged in the information or imputed error or omission
on the part of the prosecuting panel or of the respondent Judge in dealing
with the charges against him, were originally justiciable in the criminal case
before said Judge and should have been brought up there instead of directly
to this Court.
There was and is no reason to assume that the resolution of any of these
questions was beyond the ability or competence of the respondent Judgeindeed such an assumption would be demeaning and less than fair to our
trial courts; none whatever to hold them to be of such complexity or
transcendental importance as to disqualify every court, except this Court,
from deciding them; none, in short that would justify by passing established

judicial processes designed to orderly move litigation through the hierarchy

of our courts. Parenthentically, this is the reason behind the vote of four
Members of the Court against the grant of bail to petitioner: the view that
the trial court should not thus be precipitately ousted of its original
jurisdiction to grant or deny bail, and if it erred in that matter, denied an
opportunity to correct its error. It makes no difference that the respondent
Judge here issued a warrant of arrest fixing no bail. Immemorial practice
sanctions simply following the prosecutor's recommendation regarding bail,
though it may be perceived as the better course for the judge motu
proprio to set a bail hearing where a capital offense is charged. 19 It is, in any
event, incumbent on the accused as to whom no bail has been
recommended or fixed to claim the right to a bail hearing and thereby put to
proof the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this
Court of other parties in a similar situation, all apparently taking their cue
from it, distrustful or contemptuous of the efficacy of seeking recourse in the
regular manner just outlined. The proliferation of such pleas has only
contributed to the delay that the petitioner may have hoped to avoid by
coming directly to this Court.
Not only because popular interest seems focused on the outcome of the
present petition, but also because to wash the Court's hand off it on
jurisdictional grounds would only compound the delay that it has already
gone through, the Court now decides the same on the merits. But in so
doing, the Court cannot express too strongly the view that said petition
interdicted the ordered and orderly progression of proceedings that should
have started with the trial court and reached this Court only if the relief
appealed for was denied by the former and, in a proper case, by the Court of
Appeals on review.
Let it be made very clear that hereafter the Court will no longer
countenance, but will give short shrift to, pleas like the present, that clearly
short-circuit the judicial process and burden it with the resolution of issues
properly within the original competence of the lower courts. What has thus
far been stated is equally applicable to and decisive of the petition of the
Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of
petitioner Enrile in factualmilieu and is therefore determinable on the same
principles already set forth. Said spouses have uncontestedly pleaded 20 that
warrants of arrest issued against them as co-accused of petitioner Enrile in

Criminal Case No. 90-10941, that when they appeared before NBI Director
Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody
and detained without bail on the strength of said warrants in violation-they
claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has
lost that quitessentiany quixotic quality that justifies the relative leniency
with which it is regarded and punished by law, that present-day rebels are
less impelled by love of country than by lust for power and have become no
better than mere terrorists to whom nothing, not even the sanctity of human
life, is allowed to stand in the way of their ambitions. Nothing so underscores
this aberration as the rash of seemingly senseless killings, bombings,
kidnappings and assorted mayhem so much in the news these days, as often
perpetrated against innocent civilians as against the military, but by and
large attributable to, or even claimed by so-called rebels to be part of, an
ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not
even the crowded streets of our capital City seem safe from such unsettling
violence that is disruptive of the public peace and stymies every effort at
national economic recovery. There is an apparent need to restructure the law
on rebellion, either to raise the penalty therefor or to clearly define and
delimit the other offenses to be considered as absorbed thereby, so that it
cannot be conveniently utilized as the umbrella for every sort of illegal
activity undertaken in its name. The Court has no power to effect such
change, for it can only interpret the law as it stands at any given time, and
what is needed lies beyond interpretation. Hopefully, Congress will perceive
the need for promptly seizing the initiative in this matter, which is properly
within its province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated
in People vs. Hernandez, the questioned information filed against petitioners
Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read
as charging simple rebellion only, hence said petitioners are entitled to bail,
before final conviction, as a matter of right. The Court's earlier grant of bail
to petitioners being merely provisional in character, the proceedings in both
cases are ordered REMANDED to the respondent Judge to fix the amount of
bail to be posted by the petitioners. Once bail is fixed by said respondent for
any of the petitioners, the corresponding bail bond flied with this Court shall
become functus oficio. No pronouncement as to costs.

SO ORDERED.
Cruz, Gancayco and Regalado, JJ., concur.
Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.
Cortes and Grio-Aquino, JJ., are on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been
with us for the past three decades, remains good law and, thus, should
remain undisturbed, despite periodic challenges to it that, ironically, have
only served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper
remedy.
Had the Information filed below charged merely the simple crime of
Rebellion, that proposition could have been plausible. But that Information
charged Rebellion complexed with Murder and Multiple Frustrated Murder, a
crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum
period imposable upon the offender pursuant to Article 48 of the Revised
Penal Code. Thus, no bail was recommended in the Information nor was any
prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to
Quash before the lower Court would not have brought about the speedy
relief from unlawful restraint that petitioner was seeking. During the
pendency of said Motion before the lower Court, petitioner could have
continued to languish in detention. Besides, the Writ ofHabeas Corpus may

still issue even if another remedy, which is less effective, may be availed of
(Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under
custody by virtue of a process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this case,
the Court below must be deemed to have been ousted of jurisdiction when it
illegally curtailed petitioner's liberty. Habeas corpus is thus available.
The writ of habeas corpus is available to relieve persons from
unlawful restraint. But where the detention or confinement is the
result of a process issued by the court or judge or by virtue of a
judgment or sentence, the writ ordinarily cannot be availed of. It
may still be invoked though if the process, judgment or sentence
proceeded from a court or tribunal the jurisdiction of which may
be assailed. Even if it had authority to act at the outset, it is now
the prevailing doctrine that a deprivation of constitutional right,
if shown to exist, would oust it of jurisdiction. In such a case,
habeas corpus could be relied upon to regain one's
liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].
The Petition for habeas corpus was precisely premised on the violation of
petitioner's constitutional right to bail inasmuch as rebellion, under the
present state of the law, is a bailable offense and the crime for which
petitioner stands accused of and for which he was denied bail is non-existent
in law.
While litigants should, as a rule, ascend the steps of the judicial ladder,
nothing should stop this Court from taking cognizance of petitions brought
before it raising urgent constitutional issues, any procedural flaw
notwithstanding.
The rules on habeas corpus are to be liberally construed
(Ganaway v. Quilen, 42 Phil. 805), the writ of habeas
corpus being the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. The
scope and flexibility of the writ-its capacity to reach all manner of
illegal detention-its ability to cut through barriers of form and
procedural mazes-have always been emphasized and jealously

guarded by courts and lawmakers (Gumabon v. Director of

Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this
Petition, was brought about by the insistence of the prosecution to charge
the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the validity of
that charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense (now
punishable by reclusion perpetua), the remedy lies in legislation. But Article
142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed,
for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further
explicitly provided that Article 134 (and others enumerated) of the Revised
Penal Code was "restored to its full force and effect as it existed before said
amendatory decrees." Having been so repealed, this Court is bereft of power
to legislate into existence, under the guise of re-examining a settled
doctrine, a "creature unknown in law"- the complex crime of Rebellion with
Murder. The remand of the case to the lower Court for further proceedings is
in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that
under existing law rebellion may not be complexed with murder, the Court
emphasizes that it cannot legislate a new-crime into existence nor prescribe
a penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising
from these cases, especially on how the defective informations filed by the
prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not
the proper procedure to assert the right to bail. Under the special
circumstances of this case, however, the petitioners had no other recourse.
They had to come to us.
First, the trial court was certainly aware of the decision in People v.
Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute

books as rebellion complexed with murder, that murder committed in

connection with a rebellion is absorbed by the crime of rebellion, and that a
resort to arms resulting in the destruction of life or property constitutes
neither two or more offenses nor a complex crime but one crime-rebellion
pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in
equally sensational cases. All lawyers and even law students are aware of
the doctrine. Attempts to have the doctrine re-examined have been
consistently rejected by this Court.
Third, President Marcos through the use of his then legislative powers, issued
Pres. Decree 942, thereby installing the new crime of rebellion complexed
with offenses like murder where graver penalties are imposed by law.
However, President Aquino using her then legislative powers expressly
repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of
rebellion
complexed
with
murder
and
made
it
clear
that
theHernandez doctrine remains the controlling rule. The prosecution has not
explained why it insists on resurrecting an offense expressly wiped out by the
President. The prosecution, in effect, questions the action of the President in
repealing a repressive decree, a decree which, according to the repeal order,
is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post
facto principle into the picture. Decisions of this Court form part of our legal
system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a
person for a crime which did not exist until the Supreme Court reversed
itself.
And fifth, the attempts to distinguish this case from the Hernandez case by
stressing that the killings charged in the information were committed "on the
occasion of, but not a necessary means for, the commission of rebellion"
result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills
government troopers results in simple rebellion because the act is a
necessary means to make the rebellion succeed. However, if the same bomb
also kills some civilians in the neighborhood, the dropping of the bomb
becomes rebellion complexed with murder because the killing of civilians is
not necessary for the success of a rebellion and, therefore, the killings are

only "on the occasion of but not a 'necessary means for' the commission of
rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb
cannot be isolated as a separate crime of rebellion. Neither should the
dropping of one hundred bombs or the firing of thousands of machine gun
bullets be broken up into a hundred or thousands of separate offenses, if
each bomb or each bullet happens to result in the destruction of life and
property. The same act cannot be punishable by separate penalties
depending on what strikes the fancy of prosecutors-punishment for the
killing of soldiers or retribution for the deaths of civilians. The prosecution
also loses sight of the regrettable fact that in total war and in rebellion the
killing of civilians, the laying waste of civilian economies, the massacre of
innocent people, the blowing up of passenger airplanes, and other acts of
terrorism are all used by those engaged in rebellion. We cannot and should
not try to ascertain the intent of rebels for each single act unless the act is
plainly not connected to the rebellion. We cannot use Article 48 of the
Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of
civilians during a rebel attack on military facilities furthers the rebellion and
is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot
understand why the trial Judge issued the warrant of arrest which
categorically states therein that the accused was not entitled to bail. The
petitioner was compelled to come to us so he would not be arrested without
bail for a nonexistent crime. The trial court forgot to apply an established
doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34
years of established procedure based on a well-known Supreme Court ruling.
All courts should remember that they form part of an independent judicial
system; they do not belong to the prosecution service. A court should never
play into the hands of the prosecution and blindly comply with its erroneous
manifestations. Faced with an information charging a manifestly non-existent
crime, the duty of a trial court is to throw it out. Or, at the very least and
where possible, make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme
Court especially a decision consistently followed for 34 years. Where a Judge
disagrees with a Supreme Court ruling, he is free to express his reservations

in the body of his decision, order, or resolution. However, any judgment he

renders, any order he prescribes, and any processes he issues must follow
the Supreme Court precedent. A trial court has no jurisdiction to reverse or
ignore precedents of the Supreme Court. In this particular case, it should
have been the Solicitor General coming to this Court to question the lower
court's rejection of the application for a warrant of arrest without bail. It
should have been the Solicitor-General provoking the issue of re-examination
instead of the petitioners asking to be freed from their arrest for a nonexistent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at
all. It could not have ruled in any other way on the legal question
raised. This Tribunal having spoken, its duty was to obey. It is as
simple as that. There is relevance to this excerpt from Barrera v.
Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task
of ascertaining the significance that attaches to a constitutional
or statutory provision, an executive order, a procedural norm or a
municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the
other two departments in the maintenance of the rule of law. To
assure stability in legal relations and avoid confusion, it has to
speak with one voice. It does so with finality, logically and rightly,
through the highest judicial organ, this Court. What it says then
should be definitive and authoritative, binding on those
occupying the lower ranks in the judicial hierarchy. They have to
defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in
People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing
paragraph of the opinion in Barrera further emphasizes the point:
Such a thought was reiterated in an opinion of Justice J.B.L. Reyes
and further emphasized in these words: 'Judge Gaudencio
Cloribel need not be reminded that the Supreme Court, by
tradition and in our system of judicial administration, has the last
word on what the law is; it is the final arbiter of any justifiable
controversy. There is only one Supreme Court from whose
decisions all other courts should take their bearings. (Ibid. Justice
J.B.L. Reyes spoke thus in Albert v. Court of First Instance of
Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961.
(Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert

v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen

Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577
[1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et
al. even more inexplicable. In the case of the Panlilios, any probable cause to
commit the non- existent crime of rebellion complexed with murder exists
only in the minds of the prosecutors, not in the records of the case.
I have gone over the records and pleadings furnished to the members of the
Supreme Court. I listened intently to the oral arguments during the hearing
and it was quite apparent that the constitutional requirement of probable
cause was not satisfied. In fact, in answer to my query for any other proofs to
support the issuance of a warrant of arrest, the answer was that the
evidence would be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for
decades. Under the records of these petitions, any restaurant owner or hotel
manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in
buses and jeepneys, eat meals in rural houses when mealtime finds them in
the vicinity, join weddings, fiestas, and other parties, play basketball with
barrio youths, attend masses and church services and otherwise mix with
people in various gatherings. Even if the hosts recognize them to be rebels
and fail to shoo them away, it does not necessarily follow that the former are
co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is
the alleged fact that the petitioners served food to rebels at the Enrile
household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of
probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was
charged as a conspirator in the heinous bombing of innocent civilians
because the man who planted the bomb had, sometime earlier, appeared in
a group photograph taken during a birthday party in the United States with
the Senator and other guests. It was a case of conspiracy proved through a
group picture. Here, it is a case of conspiracy sought to proved through the
catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime,
from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. (Trocio v.
Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216).
The right to a preliminary investigation is a statutory grant, and
to withhold it would be to transgress constitutional due process.
(See People v. Oandasa, 25 SCRA 277) However, in order to
satisfy the due process clause it is not enough that the
preliminary investigation is conducted in the sense of making
sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the
State. More important, it is a part of the guarantees of freedom
and fair play which are birthrights of all who live in our country. It
is, therefore, imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going through a
trial once it is ascertained that the evidence is insufficient to
sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although
there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of
the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear
dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez,
129 SCRA 391). The judge or fiscal, therefore, should not go on
with the prosecution in the hope that some credible evidence
might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold.
It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been
before. It should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia which
will read the informations as charging simple rebellion. This case did not
arise from innocent error. If an information charges murder but its contents

show only the ingredients of homicide, the Judge may rightly read it as
charging homicide. In these cases, however, there is a deliberate attempt to
charge the petitioners for an offense which this Court has ruled as nonexistent. The prosecution wanted Hernandez to be reversed. Since the
prosecution has filed informations for a crime which, under our rulings, does
not exist, those informations should be treated as null and void. New
informations charging the correct offense should be filed. And in G.R. No.
92164, an extra effort should be made to see whether or not the Principle
in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more
effective weapons to suppress rebellion. If the Government feels that the
current situation calls for the imposition of more severe penalties like death
or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court
to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an
abstract question of law, could stand reexamination or clarification. I have in
mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a
matter which relates to the legal concept of rebellion in our legal system. If
one examines the actual terms of Article 134 (entitled: "Rebellion or
Insurrection-How Committed"), it would appear that this Article specifies both
the overt acts and the criminal purpose which, when put together, would
constitute the offense of rebellion. Thus, Article 134 states that "the crime of
rebellion is committed by rising publicly and taking arms against the
Government "(i.e., the overt acts comprising rebellion), "for the purpose of
(i.e., the specific criminal intent or political objective) removing from the
allegiance to said government or its laws the territory of the Republic of the
Philippines or any part thereof, or any body of land, naval or other armed
forces, or depriving the Chief Executive or the Legislature, wholly or partially,
of their powers or prerogatives." At the same time, Article 135 (entitled:

"Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular

measures which appear to fall under the rubric of rebellion or insurrection:
"engaging in war against the forces of the Government, destroying property
or committing serious violence, exacting contributions or diverting public
funds from the lawful purpose for which they have been appropriated." Are
these modalities of rebellion generally? Or are they particular modes by
which those "who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a
rebellion by public officers or employees? Clearly, the scope of the legal
concept of rebellion relates to the distinction between, on the one hand, the
indispensable acts or ingredients of the crime of rebellion under the Revised
Penal Code and, on the other hand, differing optional modes of seeking to
carry out the political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even
the above threshold questions is that the results of such re-examination may
well be that acts which under the Hernandez doctrine are absorbed into
rebellion, may be characterized as separate or discrete offenses which, as a
matter of law, can either be prosecuted separately from rebellion or
prosecuted under the provisions of Article 48 of the Revised Penal Code,
which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of
at least two (2) distinct offenses. To reach such a conclusion in the case at
bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code;
both in relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not
exist in the abstract but rather bear upon the lives of people with the specific
form given them by judicial decisions interpreting their norms. Judicial
decisions construing statutory norms give specific shape and content to such
norms. In time, the statutory norms become encrusted with the glosses
placed upon them by the courts and the glosses become integral with the
norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal
theory, judicial interpretation of a statute becomes part of the law as of the
date that the law was originally enacted, I believe this theory is not to be
applied rigorously where a new judicial doctrine is announced, in particular
one overruling a previous existing doctrine of long standing (here, 36 years)
and most specially not where the statute construed is criminal in nature and
the new doctrine is more onerous for the accused than the pre-existing one
(People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975];

Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the nonretroactivity rule whether in respect of legislative acts or judicial decisions
has constitutional implications. The prevailing rule in the United States is
that a judicial decision that retroactively renders an act criminal or enhances
the severity of the penalty prescribed for an offense, is vulnerable to
constitutional challenge based upon the rule against ex post facto laws and
the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d
894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New
Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does
not present any real problem for the reason that the Hernandez doctrine was
based upon Article 48, second clause, of the Revised Penal Code and not
upon the first clause thereof, while it is precisely the first clause of Article 48
that the Government here invokes. It is, however, open to serious doubt
whether Hernandez can reasonably be so simply and sharply characterized.
And assuming the Hernandez could be so characterized, subsequent cases
refer to the Hernandezdoctrine in terms which do not distinguish clearly
between the first clause and the second clause of Article 48 (e.g., People v.
Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]).
Thus, it appears to me that the critical question would be whether a man of
ordinary intelligence would have necessarily read or understood
the Hernandez doctrine as referring exclusively to Article 48, second clause.
Put in slightly different terms, the important question would be whether the
new doctrine here proposed by the Government could fairly have been
derived by a man of average intelligence (or counsel of average competence
in the law) from an examination of Articles 134 and 135 of the Revised Penal
Code as interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a negative
answer, especially in view of the conclusions reached by the Court and its
several Members today.
Finally, there appears to be no question that the new doctrine that the
Government would have us discover for the first time since the promulgation
of the Revised Penal Code in 1932, would be more onerous for the
respondent accused than the simple application of the Hernandez doctrine
that murders which have been committed on the occasion of and in
furtherance of the crime of rebellion must be deemed absorbed in the
offense of simple rebellion.

I agree therefore that the information in this case must be viewed as

charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid
adherence to the 1956 ruling of the Court. The numerous challenges to the
doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956)
should at once demonstrate the need to redefine the applicability of said
doctrine so as to make it conformable with accepted and well-settled
principles of criminal law and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an allembracing authority for the rule that all common crimes committed on the
occasion, or in furtherance of, or in connection with, rebellion are absorbed
by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to
prohibit the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by
the Court in 1956 during the communist-inspired rebellion of the Huks. The
changes in our society in the span of 34 years since then have far-reaching
effects on the all-embracing applicability of the doctrine considering the
emergence of alternative modes of seizing the powers of the duly constituted
Government not contemplated in Articles 134 and 135 of the Revised Penal
Code and their consequent effects on the lives of our people. The doctrine
was good law then, but I believe that there is a certain aspect of the
Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that
the Court, in the instant case, should have further considered that distinction
between acts or offenses which are indispensable in the commission of
rebellion, on the one hand, and those acts or offenses that are merely
necessary but not indispensable in the commission of rebellion, on the other.
The majority of the Court is correct in adopting, albeit impliedly, the view in
Hernandez case that when an offense perpetrated as a necessary means of
committing another, which is an element of the latter, the resulting

interlocking crimes should be considered as only one simple offense and

must be deemed outside the operation of the complex crime provision
(Article 48) of the Revised Penal Code. As in the case of Hernandez, the
Court, however, failed in the instant case to distinguish what is indispensable
from what is merely necessary in the commission of an offense, resulting
thus in the rule that common crimes like murder, arson, robbery, etc.
committed in the course or on the occasion of rebellion are absorbed or
included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to
contemporaneous events happening in our country today. Theoretically, a
crime which is indispensable in the commission of another must necessarily
be an element of the latter; but a crime that is merely necessary but not
indispensable in the commission of another is not an element of the latter,
and if and when actually committed, brings the interlocking crime within the
operation of the complex crime provision (Art. 48) of the Revised Penal Code.
With that distinction, common crimes committed against Government forces
and property in the course of rebellion are properly considered indispensable
overt acts of rebellion and are logically absorbed in it as virtual ingredients or
elements thereof, but common crimes committed against the civilian
population in the course or on the occasion of rebellion and in furtherance
thereof, may be necessary but not indispensable in committing the latter,
and may, therefore, not be considered as elements of the said crime of
rebellion. To illustrate, the deaths occurring during armed confrontation or
clashes between government forces and the rebels are absorbed in the
rebellion, and would be those resulting from the bombing of military camps
and installations, as these acts are indispensable in carrying out the
rebellion. But deliberately shooting down an unarmed innocent civilian to
instill fear or create chaos among the people, although done in the
furtherance of the rebellion, should not be absorbed in the crime of rebellion
as the felonious act is merely necessary, but not indispensable. In the latter
case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the
powers of the duly-constituted government by staging surprise attacks or
occupying centers of powers, of which this Court should take judicial notice,
has introduced a new dimension to the interpretation of the provisions on
rebellion and insurrection in the Revised Penal Code. Generally, as a mode of
seizing the powers of the duly constituted government, it falls within the
contemplation of rebellion under the Revised Penal Code, but, strictly

construed, a coup d'etat per se is a class by itself. The manner of its

execution and the extent and magnitude of its effects on the lives of the
people distinguish a coup d'etat from the traditional definition and modes of
commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A
coup d'etat may be executed successfully without its perpetrators resorting
to the commission of other serious crimes such as murder, arson,
kidnapping, robbery, etc. because of the element of surprise and the precise
timing of its execution. In extreme cases where murder, arson, robbery, and
other common crimes are committed on the occasion of a coup d' etat, the
distinction referred to above on what is necessary and what is indispensable
in the commission of the coup d'etat should be painstakingly considered as
the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but
I take exception to the vote of the majority on the broad application of the
Hernandez doctrine.
BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive portion
thereof which orders the remand of the case to the respondent judge for
further proceedings to fix the amount of bail to be posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge
for the purpose of fixing bail since we have construed the indictment herein
as
charging
simple
rebellion,
an
offense
which
is
bailable.
Consequently,habeas corpus is the proper remedy available to petitioner as
an accused who had been charged with simple rebellion, a bailable offense
but who had been denied his right to bail by the respondent judge in
violation of petitioner's constitutional right to bail. In view thereof, the
responsibility of fixing the amount of bail and approval thereof when filed,
devolves upon us, if complete relief is to be accorded to petitioner in the
instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right
to the defendant, accused before the Regional Trial Court of an offense less
than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among
others, for his provisional release on bail. Since the offense charged
(construed as simple rebellion) admits of bail, it is incumbent upon us m the

exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1),
Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to
bail and having admitted him to bail, to fix the amount thereof in such sums
as the court deems reasonable. Thereafter, the rules require that "the
proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by
petitioner for his provisional release pursuant to our resolution dated March
6, 1990 should now be deemed and admitted as his bail bond for his
provisional release in the case (simple rebellion) pending before the
respondent judge, without necessity of a remand for further proceedings,
conditioned for his (petitioner's) appearance before the trial court to abide its
order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades
after which it was penned, it has firmly settled in the tomes of our
jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of
the government," 2 which implies "resort to arms, requisition of property and
services, collection of taxes and contributions, restraint of liberty, damage to
property, physical injuries and loss of life, and the hunger, illness and
unhappiness that war leaves in its wake. ..." 3whether committed in
furtherance, of as a necessary means for the commission, or in the course, of
rebellion. To say that rebellion may be complexed with any other offense, in
this case murder, is to play into a contradiction in terms because exactly,
rebellion includes murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple
rebellion. Since the acts complained of as constituting rebellion have been
embodied in the information, mention therein of murder as a complexing
offense is a surplusage, because in any case, the crime of rebellion is left
fully described. 4
At any rate, the government need only amend the information by a clerical
correction, since an amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of
bail to the lower court. I take it that when we, in our Resolution of March 6,
1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty.
It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to
temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People
vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit
the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion."
I dissent, however, from the majority opinion insofar as it holds that the
information in question, while charging the complex crime of rebellion with
murder and multiple frustrated murder, "is to be read as charging simple
rebellion."
The present cases are to be distinguished from the Hernandez case in at
least one (1) material respect. In theHernandez case, this Court was
confronted with an appealed case, i.e., Hernandez had been convicted by the
trial court of the complex crime of rebellion with murder, arson and robbery,
and his plea to be released on bail before the Supreme Court, pending
appeal, gave birth to the now celebrated Hernandez doctrine that the crime
of rebellion complexed with murder, arson and robbery does not exist. In the
present cases, on the other hand, the Court is confronted with an original
case, i.e., where an information has been recently filed in the trial court and
the petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "groundbreaking" on the issue of whether rebellion can be complexed with murder,
arson, robbery, etc. In the present cases, on the other hand, the prosecution
and the lower court, not only had the Hernandez doctrine (as case law), but
Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987
(as statutory law) to bind them to the legal proposition that the crime of

rebellion complexed with murder, and multiple frustrated murder does not
exist.
And yet, notwithstanding these unmistakable and controlling beacon lightsabsent when this Court laid down theHernandez doctrine-the prosecution has
insisted in filing, and the lower court has persisted in hearing, an information
charging the petitioners with rebellion complexed with murder an multiple
frustrated murder. That information is clearly a nullity and plainly void ab
initio. Its head should not be allowed to surface. As a nullity in substantive
law, it charges nothing; it has given rise to nothing. The warrants of arrest
issued pursuant thereto are as null and void as the information on which they
are anchored. And, since the entire question of the information's validity is
before the Court in these habeas corpus cases, I venture to say that the
information is fatally defective,even under procedural law, because it
charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).
I submit then that it is not for this Court to energize a dead and, at best,
fatally decrepit information by labelling or "baptizing" it differently from what
it announces itself to be. The prosecution must file an entirely new and
properinformation, for this entire exercise to merit the serious consideration
of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest,
and ORDER the information for rebellion complexed with murder and multiple
frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City,
DISMISSED.
Consequently, the petitioners should be ordered permanently released and
their bails cancelled.
Paras, J., concurs.

Separate Opinions
MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been
with us for the past three decades, remains good law and, thus, should
remain undisturbed, despite periodic challenges to it that, ironically, have
only served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper
remedy.
Had the Information filed below charged merely the simple crime of
Rebellion, that proposition could have been plausible. But that Information
charged Rebellion complexed with Murder and Multiple Frustrated Murder, a
crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum
period imposable upon the offender pursuant to Article 48 of the Revised
Penal Code. Thus, no bail was recommended in the Information nor was any
prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to
Quash before the lower Court would not have brought about the speedy
relief from unlawful restraint that petitioner was seeking. During the
pendency of said Motion before the lower Court, petitioner could have
continued to languish in detention. Besides, the Writ ofHabeas Corpus may
still issue even if another remedy, which is less effective, may be availed of
(Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under
custody by virtue of a process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this case,
the Court below must be deemed to have been ousted of jurisdiction when it
illegally curtailed petitioner's liberty. Habeas corpus is thus available.
The writ of habeas corpus is available to relieve persons from
unlawful restraint. But where the detention or confinement is the
result of a process issued by the court or judge or by virtue of a
judgment or sentence, the writ ordinarily cannot be availed of. It
may still be invoked though if the process, judgment or sentence
proceeded from a court or tribunal the jurisdiction of which may
be assailed. Even if it had authority to act at the outset, it is now
the prevailing doctrine that a deprivation of constitutional right,
if shown to exist, would oust it of jurisdiction. In such a case,

habeas corpus could be relied upon to regain one's

liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].
The Petition for habeas corpus was precisely premised on the violation of
petitioner's constitutional right to bail inasmuch as rebellion, under the
present state of the law, is a bailable offense and the crime for which
petitioner stands accused of and for which he was denied bail is non-existent
in law.
While litigants should, as a rule, ascend the steps of the judicial ladder,
nothing should stop this Court from taking cognizance of petitions brought
before it raising urgent constitutional issues, any procedural flaw
notwithstanding.
The rules on habeas corpus are to be liberally construed
(Ganaway v. Quilen, 42 Phil. 805), the writ of habeas
corpus being the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. The
scope and flexibility of the writ-its capacity to reach all manner of
illegal detention-its ability to cut through barriers of form and
procedural mazes-have always been emphasized and jealously
guarded by courts and lawmakers (Gumabon v. Director of
Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this
Petition, was brought about by the insistence of the prosecution to charge
the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the validity of
that charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense (now
punishable by reclusion perpetua), the remedy lies in legislation. But Article
142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed,
for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further
explicitly provided that Article 134 (and others enumerated) of the Revised
Penal Code was "restored to its full force and effect as it existed before said
amendatory decrees." Having been so repealed, this Court is bereft of power
to legislate into existence, under the guise of re-examining a settled
doctrine, a "creature unknown in law"- the complex crime of Rebellion with
Murder. The remand of the case to the lower Court for further proceedings is
in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that
under existing law rebellion may not be complexed with murder, the Court
emphasizes that it cannot legislate a new-crime into existence nor prescribe
a penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising
from these cases, especially on how the defective informations filed by the
prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not
the proper procedure to assert the right to bail. Under the special
circumstances of this case, however, the petitioners had no other recourse.
They had to come to us.
First, the trial court was certainly aware of the decision in People v.
Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute
books as rebellion complexed with murder, that murder committed in
connection with a rebellion is absorbed by the crime of rebellion, and that a
resort to arms resulting in the destruction of life or property constitutes
neither two or more offenses nor a complex crime but one crime-rebellion
pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in
equally sensational cases. All lawyers and even law students are aware of
the doctrine. Attempts to have the doctrine re-examined have been
consistently rejected by this Court.
Third, President Marcos through the use of his then legislative powers, issued
Pres. Decree 942, thereby installing the new crime of rebellion complexed
with offenses like murder where graver penalties are imposed by law.
However, President Aquino using her then legislative powers expressly
repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of
rebellion
complexed
with
murder
and
made
it
clear
that
theHernandez doctrine remains the controlling rule. The prosecution has not
explained why it insists on resurrecting an offense expressly wiped out by the
President. The prosecution, in effect, questions the action of the President in

repealing a repressive decree, a decree which, according to the repeal order,

is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post
facto principle into the picture. Decisions of this Court form part of our legal
system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a
person for a crime which did not exist until the Supreme Court reversed
itself.
And fifth, the attempts to distinguish this case from the Hernandez case by
stressing that the killings charged in the information were committed "on the
occasion of, but not a necessary means for, the commission of rebellion"
result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills
government troopers results in simple rebellion because the act is a
necessary means to make the rebellion succeed. However, if the same bomb
also kills some civilians in the neighborhood, the dropping of the bomb
becomes rebellion complexed with murder because the killing of civilians is
not necessary for the success of a rebellion and, therefore, the killings are
only "on the occasion of but not a 'necessary means for' the commission of
rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb
cannot be isolated as a separate crime of rebellion. Neither should the
dropping of one hundred bombs or the firing of thousands of machine gun
bullets be broken up into a hundred or thousands of separate offenses, if
each bomb or each bullet happens to result in the destruction of life and
property. The same act cannot be punishable by separate penalties
depending on what strikes the fancy of prosecutors-punishment for the
killing of soldiers or retribution for the deaths of civilians. The prosecution
also loses sight of the regrettable fact that in total war and in rebellion the
killing of civilians, the laying waste of civilian economies, the massacre of
innocent people, the blowing up of passenger airplanes, and other acts of
terrorism are all used by those engaged in rebellion. We cannot and should
not try to ascertain the intent of rebels for each single act unless the act is
plainly not connected to the rebellion. We cannot use Article 48 of the
Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of

civilians during a rebel attack on military facilities furthers the rebellion and
is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot
understand why the trial Judge issued the warrant of arrest which
categorically states therein that the accused was not entitled to bail. The
petitioner was compelled to come to us so he would not be arrested without
bail for a nonexistent crime. The trial court forgot to apply an established
doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34
years of established procedure based on a well-known Supreme Court ruling.
All courts should remember that they form part of an independent judicial
system; they do not belong to the prosecution service. A court should never
play into the hands of the prosecution and blindly comply with its erroneous
manifestations. Faced with an information charging a manifestly non-existent
crime, the duty of a trial court is to throw it out. Or, at the very least and
where possible, make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme
Court especially a decision consistently followed for 34 years. Where a Judge
disagrees with a Supreme Court ruling, he is free to express his reservations
in the body of his decision, order, or resolution. However, any judgment he
renders, any order he prescribes, and any processes he issues must follow
the Supreme Court precedent. A trial court has no jurisdiction to reverse or
ignore precedents of the Supreme Court. In this particular case, it should
have been the Solicitor General coming to this Court to question the lower
court's rejection of the application for a warrant of arrest without bail. It
should have been the Solicitor-General provoking the issue of re-examination
instead of the petitioners asking to be freed from their arrest for a nonexistent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at
all. It could not have ruled in any other way on the legal question
raised. This Tribunal having spoken, its duty was to obey. It is as
simple as that. There is relevance to this excerpt from Barrera v.
Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task
of ascertaining the significance that attaches to a constitutional
or statutory provision, an executive order, a procedural norm or a
municipal ordinance is committed to the judiciary. It thus

discharges a role no less crucial than that appertaining to the

other two departments in the maintenance of the rule of law. To
assure stability in legal relations and avoid confusion, it has to
speak with one voice. It does so with finality, logically and rightly,
through the highest judicial organ, this Court. What it says then
should be definitive and authoritative, binding on those
occupying the lower ranks in the judicial hierarchy. They have to
defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in
People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing
paragraph of the opinion in Barrera further emphasizes the point:
Such a thought was reiterated in an opinion of Justice J.B.L. Reyes
and further emphasized in these words: 'Judge Gaudencio
Cloribel need not be reminded that the Supreme Court, by
tradition and in our system of judicial administration, has the last
word on what the law is; it is the final arbiter of any justifiable
controversy. There is only one Supreme Court from whose
decisions all other courts should take their bearings. (Ibid. Justice
J.B.L. Reyes spoke thus in Albert v. Court of First Instance of
Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961.
(Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert
v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen
Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577
[1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et
al. even more inexplicable. In the case of the Panlilios, any probable cause to
commit the non- existent crime of rebellion complexed with murder exists
only in the minds of the prosecutors, not in the records of the case.
I have gone over the records and pleadings furnished to the members of the
Supreme Court. I listened intently to the oral arguments during the hearing
and it was quite apparent that the constitutional requirement of probable
cause was not satisfied. In fact, in answer to my query for any other proofs to
support the issuance of a warrant of arrest, the answer was that the
evidence would be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for
decades. Under the records of these petitions, any restaurant owner or hotel
manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in

buses and jeepneys, eat meals in rural houses when mealtime finds them in
the vicinity, join weddings, fiestas, and other parties, play basketball with
barrio youths, attend masses and church services and otherwise mix with
people in various gatherings. Even if the hosts recognize them to be rebels
and fail to shoo them away, it does not necessarily follow that the former are
co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is
the alleged fact that the petitioners served food to rebels at the Enrile
household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of
probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was
charged as a conspirator in the heinous bombing of innocent civilians
because the man who planted the bomb had, sometime earlier, appeared in
a group photograph taken during a birthday party in the United States with
the Senator and other guests. It was a case of conspiracy proved through a
group picture. Here, it is a case of conspiracy sought to proved through the
catering of food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of crime,
from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. (Trocio v.
Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216).
The right to a preliminary investigation is a statutory grant, and
to withhold it would be to transgress constitutional due process.
(See People v. Oandasa, 25 SCRA 277) However, in order to
satisfy the due process clause it is not enough that the
preliminary investigation is conducted in the sense of making
sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the
State. More important, it is a part of the guarantees of freedom
and fair play which are birthrights of all who live in our country. It
is, therefore, imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going through a

trial once it is ascertained that the evidence is insufficient to

sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although
there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of
the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear
dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez,
129 SCRA 391). The judge or fiscal, therefore, should not go on
with the prosecution in the hope that some credible evidence
might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold.
It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been
before. It should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia which
will read the informations as charging simple rebellion. This case did not
arise from innocent error. If an information charges murder but its contents
show only the ingredients of homicide, the Judge may rightly read it as
charging homicide. In these cases, however, there is a deliberate attempt to
charge the petitioners for an offense which this Court has ruled as nonexistent. The prosecution wanted Hernandez to be reversed. Since the
prosecution has filed informations for a crime which, under our rulings, does
not exist, those informations should be treated as null and void. New
informations charging the correct offense should be filed. And in G.R. No.
92164, an extra effort should be made to see whether or not the Principle
in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more
effective weapons to suppress rebellion. If the Government feels that the
current situation calls for the imposition of more severe penalties like death
or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court
to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an
abstract question of law, could stand reexamination or clarification. I have in
mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a
matter which relates to the legal concept of rebellion in our legal system. If
one examines the actual terms of Article 134 (entitled: "Rebellion or
Insurrection-How Committed"), it would appear that this Article specifies both
the overt acts and the criminal purpose which, when put together, would
constitute the offense of rebellion. Thus, Article 134 states that "the crime of
rebellion is committed by rising publicly and taking arms against the
Government "(i.e., the overt acts comprising rebellion), "for the purpose of
(i.e., the specific criminal intent or political objective) removing from the
allegiance to said government or its laws the territory of the Republic of the
Philippines or any part thereof, or any body of land, naval or other armed
forces, or depriving the Chief Executive or the Legislature, wholly or partially,
of their powers or prerogatives." At the same time, Article 135 (entitled:
"Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular
measures which appear to fall under the rubric of rebellion or insurrection:
"engaging in war against the forces of the Government, destroying property
or committing serious violence, exacting contributions or diverting public
funds from the lawful purpose for which they have been appropriated." Are
these modalities of rebellion generally? Or are they particular modes by
which those "who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a
rebellion by public officers or employees? Clearly, the scope of the legal
concept of rebellion relates to the distinction between, on the one hand, the
indispensable acts or ingredients of the crime of rebellion under the Revised
Penal Code and, on the other hand, differing optional modes of seeking to
carry out the political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even
the above threshold questions is that the results of such re-examination may
well be that acts which under the Hernandez doctrine are absorbed into
rebellion, may be characterized as separate or discrete offenses which, as a

matter of law, can either be prosecuted separately from rebellion or

prosecuted under the provisions of Article 48 of the Revised Penal Code,
which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of
at least two (2) distinct offenses. To reach such a conclusion in the case at
bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code;
both in relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not
exist in the abstract but rather bear upon the lives of people with the specific
form given them by judicial decisions interpreting their norms. Judicial
decisions construing statutory norms give specific shape and content to such
norms. In time, the statutory norms become encrusted with the glosses
placed upon them by the courts and the glosses become integral with the
norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal
theory, judicial interpretation of a statute becomes part of the law as of the
date that the law was originally enacted, I believe this theory is not to be
applied rigorously where a new judicial doctrine is announced, in particular
one overruling a previous existing doctrine of long standing (here, 36 years)
and most specially not where the statute construed is criminal in nature and
the new doctrine is more onerous for the accused than the pre-existing one
(People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975];
Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the nonretroactivity rule whether in respect of legislative acts or judicial decisions
has constitutional implications. The prevailing rule in the United States is
that a judicial decision that retroactively renders an act criminal or enhances
the severity of the penalty prescribed for an offense, is vulnerable to
constitutional challenge based upon the rule against ex post facto laws and
the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d
894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New
Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does
not present any real problem for the reason that the Hernandez doctrine was
based upon Article 48, second clause, of the Revised Penal Code and not
upon the first clause thereof, while it is precisely the first clause of Article 48
that the Government here invokes. It is, however, open to serious doubt
whether Hernandez can reasonably be so simply and sharply characterized.
And assuming the Hernandez could be so characterized, subsequent cases
refer to the Hernandezdoctrine in terms which do not distinguish clearly

between the first clause and the second clause of Article 48 (e.g., People v.
Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]).
Thus, it appears to me that the critical question would be whether a man of
ordinary intelligence would have necessarily read or understood
the Hernandez doctrine as referring exclusively to Article 48, second clause.
Put in slightly different terms, the important question would be whether the
new doctrine here proposed by the Government could fairly have been
derived by a man of average intelligence (or counsel of average competence
in the law) from an examination of Articles 134 and 135 of the Revised Penal
Code as interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a negative
answer, especially in view of the conclusions reached by the Court and its
several Members today.
Finally, there appears to be no question that the new doctrine that the
Government would have us discover for the first time since the promulgation
of the Revised Penal Code in 1932, would be more onerous for the
respondent accused than the simple application of the Hernandez doctrine
that murders which have been committed on the occasion of and in
furtherance of the crime of rebellion must be deemed absorbed in the
offense of simple rebellion.
I agree therefore that the information in this case must be viewed as
charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid
adherence to the 1956 ruling of the Court. The numerous challenges to the
doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956)
should at once demonstrate the need to redefine the applicability of said
doctrine so as to make it conformable with accepted and well-settled
principles of criminal law and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an allembracing authority for the rule that all common crimes committed on the
occasion, or in furtherance of, or in connection with, rebellion are absorbed
by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to

prohibit the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by
the Court in 1956 during the communist-inspired rebellion of the Huks. The
changes in our society in the span of 34 years since then have far-reaching
effects on the all-embracing applicability of the doctrine considering the
emergence of alternative modes of seizing the powers of the duly constituted
Government not contemplated in Articles 134 and 135 of the Revised Penal
Code and their consequent effects on the lives of our people. The doctrine
was good law then, but I believe that there is a certain aspect of the
Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that
the Court, in the instant case, should have further considered that distinction
between acts or offenses which are indispensable in the commission of
rebellion, on the one hand, and those acts or offenses that are merely
necessary but not indispensable in the commission of rebellion, on the other.
The majority of the Court is correct in adopting, albeit impliedly, the view in
Hernandez case that when an offense perpetrated as a necessary means of
committing another, which is an element of the latter, the resulting
interlocking crimes should be considered as only one simple offense and
must be deemed outside the operation of the complex crime provision
(Article 48) of the Revised Penal Code. As in the case of Hernandez, the
Court, however, failed in the instant case to distinguish what is indispensable
from what is merely necessary in the commission of an offense, resulting
thus in the rule that common crimes like murder, arson, robbery, etc.
committed in the course or on the occasion of rebellion are absorbed or
included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to
contemporaneous events happening in our country today. Theoretically, a
crime which is indispensable in the commission of another must necessarily
be an element of the latter; but a crime that is merely necessary but not
indispensable in the commission of another is not an element of the latter,
and if and when actually committed, brings the interlocking crime within the
operation of the complex crime provision (Art. 48) of the Revised Penal Code.
With that distinction, common crimes committed against Government forces
and property in the course of rebellion are properly considered indispensable

overt acts of rebellion and are logically absorbed in it as virtual ingredients or

elements thereof, but common crimes committed against the civilian
population in the course or on the occasion of rebellion and in furtherance
thereof, may be necessary but not indispensable in committing the latter,
and may, therefore, not be considered as elements of the said crime of
rebellion. To illustrate, the deaths occurring during armed confrontation or
clashes between government forces and the rebels are absorbed in the
rebellion, and would be those resulting from the bombing of military camps
and installations, as these acts are indispensable in carrying out the
rebellion. But deliberately shooting down an unarmed innocent civilian to
instill fear or create chaos among the people, although done in the
furtherance of the rebellion, should not be absorbed in the crime of rebellion
as the felonious act is merely necessary, but not indispensable. In the latter
case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the
powers of the duly-constituted government by staging surprise attacks or
occupying centers of powers, of which this Court should take judicial notice,
has introduced a new dimension to the interpretation of the provisions on
rebellion and insurrection in the Revised Penal Code. Generally, as a mode of
seizing the powers of the duly constituted government, it falls within the
contemplation of rebellion under the Revised Penal Code, but, strictly
construed, a coup d'etat per se is a class by itself. The manner of its
execution and the extent and magnitude of its effects on the lives of the
people distinguish a coup d'etat from the traditional definition and modes of
commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A
coup d'etat may be executed successfully without its perpetrators resorting
to the commission of other serious crimes such as murder, arson,
kidnapping, robbery, etc. because of the element of surprise and the precise
timing of its execution. In extreme cases where murder, arson, robbery, and
other common crimes are committed on the occasion of a coup d' etat, the
distinction referred to above on what is necessary and what is indispensable
in the commission of the coup d'etat should be painstakingly considered as
the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but
I take exception to the vote of the majority on the broad application of the
Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion
thereof which orders the remand of the case to the respondent judge for
further proceedings to fix the amount of bail to be posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge
for the purpose of fixing bail since we have construed the indictment herein
as
charging
simple
rebellion,
an
offense
which
is
bailable.
Consequently,habeas corpus is the proper remedy available to petitioner as
an accused who had been charged with simple rebellion, a bailable offense
but who had been denied his right to bail by the respondent judge in
violation of petitioner's constitutional right to bail. In view thereof, the
responsibility of fixing the amount of bail and approval thereof when filed,
devolves upon us, if complete relief is to be accorded to petitioner in the
instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right
to the defendant, accused before the Regional Trial Court of an offense less
than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among
others, for his provisional release on bail. Since the offense charged
(construed as simple rebellion) admits of bail, it is incumbent upon us m the
exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1),
Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to
bail and having admitted him to bail, to fix the amount thereof in such sums
as the court deems reasonable. Thereafter, the rules require that "the
proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by
petitioner for his provisional release pursuant to our resolution dated March
6, 1990 should now be deemed and admitted as his bail bond for his
provisional release in the case (simple rebellion) pending before the
respondent judge, without necessity of a remand for further proceedings,
conditioned for his (petitioner's) appearance before the trial court to abide its
order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades
after which it was penned, it has firmly settled in the tomes of our
jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of
the government," 2 which implies "resort to arms, requisition of property and
services, collection of taxes and contributions, restraint of liberty, damage to
property, physical injuries and loss of life, and the hunger, illness and
unhappiness that war leaves in its wake. ..." 3whether committed in
furtherance, of as a necessary means for the commission, or in the course, of
rebellion. To say that rebellion may be complexed with any other offense, in
this case murder, is to play into a contradiction in terms because exactly,
rebellion includes murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple
rebellion. Since the acts complained of as constituting rebellion have been
embodied in the information, mention therein of murder as a complexing
offense is a surplusage, because in any case, the crime of rebellion is left
fully described. 4
At any rate, the government need only amend the information by a clerical
correction, since an amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of
bail to the lower court. I take it that when we, in our Resolution of March 6,
1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty.
It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to
temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People
vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit
the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the
information in question, while charging the complex crime of rebellion with
murder and multiple frustrated murder, "is to be read as charging simple
rebellion."
The present cases are to be distinguished from the Hernandez case in at
least one (1) material respect. In theHernandez case, this Court was
confronted with an appealed case, i.e., Hernandez had been convicted by the
trial court of the complex crime of rebellion with murder, arson and robbery,
and his plea to be released on bail before the Supreme Court, pending
appeal, gave birth to the now celebrated Hernandez doctrine that the crime
of rebellion complexed with murder, arson and robbery does not exist. In the
present cases, on the other hand, the Court is confronted with an original
case, i.e., where an information has been recently filed in the trial court and
the petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "groundbreaking" on the issue of whether rebellion can be complexed with murder,
arson, robbery, etc. In the present cases, on the other hand, the prosecution
and the lower court, not only had the Hernandez doctrine (as case law), but
Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987
(as statutory law) to bind them to the legal proposition that the crime of
rebellion complexed with murder, and multiple frustrated murder does not
exist.
And yet, notwithstanding these unmistakable and controlling beacon lightsabsent when this Court laid down theHernandez doctrine-the prosecution has
insisted in filing, and the lower court has persisted in hearing, an information
charging the petitioners with rebellion complexed with murder an multiple
frustrated murder. That information is clearly a nullity and plainly void ab
initio. Its head should not be allowed to surface. As a nullity in substantive
law, it charges nothing; it has given rise to nothing. The warrants of arrest
issued pursuant thereto are as null and void as the information on which they
are anchored. And, since the entire question of the information's validity is
before the Court in these habeas corpus cases, I venture to say that the
information is fatally defective,even under procedural law, because it
charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).
I submit then that it is not for this Court to energize a dead and, at best,
fatally decrepit information by labelling or "baptizing" it differently from what

it announces itself to be. The prosecution must file an entirely new and
properinformation, for this entire exercise to merit the serious consideration
of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest,
and ORDER the information for rebellion complexed with murder and multiple
frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City,
DISMISSED.
Consequently, the petitioners should be ordered permanently released and
their bails cancelled.
Paras, J., concurs.
G.R. No. 93335 September 13, 1990
JUAN
PONCE
ENRILE, petitioner,
vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of
Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of
Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL
COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE,
State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor
EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile
as having committed rebellion complexed with murder 1 with the Regional
Trial Court of Quezon City, government prosecutors filed another information
charging him for violation of Presidential Decree No. 1829 with the Regional
Trial Court of Makati. The second information reads:
That on or about the 1st day of December 1989, at Dasmarias
Village, Makati, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, having reasonable
ground to believe or suspect that Ex-Col. Gregorio "Gringo"

Honasan has committed a crime, did then and there unlawfully,

feloniously, willfully and knowingly obstruct, impede, frustrate or
delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo"
Honasan by harboring or concealing him in his house.
On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in
abeyance the issuance of a warrant of arrest pending personal determination
by the court of probable cause, and (b) to dismiss the case and expunge the
information from the record.
On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of
respondent Judge Omar Amin, denied Senator Enrile's Omnibus motion on
the basis of a finding that "there (was) probable cause to hold the accused
Juan Ponce Enrile liable for violation of PD No. 1829."
On March 21, 1990, the petitioner filed a Motion for Reconsideration and to
Quash/Dismiss the Information on the grounds that:
(a) The facts charged do not constitute an offense;
(b) The respondent court's finding of probable cause was devoid of factual
and legal basis; and
(c) The pending charge of rebellion complexed with murder and frustrated
murder against Senator Enrile as alleged co-conspirator of Col. Honasan, on
the basis of their alleged meeting on December 1, 1989 preclude the
prosecution of the Senator for harboring or concealing the Colonel on the
same occasion under PD 1829.
On May 10, 1990, the respondent court issued an order denying the motion
for reconsideration for alleged lack of merit and setting Senator Enrile's
arraignment to May 30, 1990.
The petitioner comes to this Court on certiorari imputing grave abuse of
discretion amounting to lack or excess of jurisdiction committed by the
respondent court in refusing to quash/ dismiss the information on the
following grounds, to wit:
I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col.

Honasan in a supposed meeting on 1 December 1989 is
absorbed in, or is a component element of, the "complexed"
rebellion presently charged against Sen. Enrile as alleged coconspirator of Col. Honasan on the basis of the same meeting on
1 December 1989;
III. The orderly administration of Justice requires that there be
only one prosecution for all the component acts of rebellion;
IV. There is no probable cause to hold Sen. Enrile for trial for
alleged violation of Presidential Decree No. 1829;
V. No preliminary investigation was conducted for alleged
violation of Presidential Decree No. 1829. The preliminary
investigation, held only for rebellion, was marred by patent
irregularities resulting in denial of due process.
On May 20, 1990 we issued a temporary restraining order enjoining the
respondents from conducting further proceedings in Criminal Case No. 90777 until otherwise directed by this Court.
The pivotal issue in this case is whether or not the petitioner could be
separately charged for violation of PD No. 1829 notwithstanding the rebellion
case earlier filed against him.
Respondent Judge Amin sustained the charge of violation of PD No. 1829
notwithstanding the rebellion case filed against the petitioner on the theory
that the former involves a special law while the latter is based on the Revised
Penal Code or a general law.
The resolution of the above issue brings us anew to the case of People v.
Hernandez (99 Phil. 515 [1956]) the rulings of which were recently repeated
in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R.
Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court the
occasion to reiterate the long standing proscription against splitting the
component offenses of rebellion and subjecting them to separate
prosecutions, a procedure reprobated in the Hernandez case. This Court
recently declared:

The rejection of both options shapes and determines the primary

ruling of the Court, which thatHernandez remains binding
doctrine operating to prohibit the complexing of rebellion with
any other offense committed on the occasion thereof, either as a
means to its commission or as an unintended effect of an activity
that commutes rebellion. (Emphasis supplied)
This doctrine is applicable in the case at bar. If a person can not be charged
with the complex crime of rebellion for the greater penalty to be applied,
neither can he be charged separately for two (2) different offenses where
one is a constitutive or component element or committed in furtherance of
rebellion.
The petitioner is presently charged with having violated PD No. 1829
particularly Section 1 (c) which states:
SECTION 1. The penalty of prison correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos or both, shall
be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases by
committing any of the following acts:
xxx xxx xxx
(c) harboring or concealing, or facilitating the escape of, any
person he knows, or has reasonable ground to believe or suspect
has committed any offense under existing penal laws in order to
prevent his arrest, prosecution and conviction.
xxx xxx xxx
The prosecution in this Makati case alleges that the petitioner entertained
and accommodated Col. Honasan by giving him food and comfort on
December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive
from justice, Sen. Enrile allegedly did not do anything to have Honasan
arrested or apprehended. And because of such failure the petitioner
prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of
PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based
on the affidavits executed by three (3) employees of the Silahis International
Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some
100 rebel soldiers attended the mass and birthday party held at the
residence of the petitioner in the evening of December 1, 1989. The
information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1
December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused
Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel
soldiers wearing white armed patches". The prosecution thereby concluded
that:
In such a situation, Sen. Enrile's talking with rebel leader Col.
Gregorio "Gringo" Honasan in his house in the presence of about
100 uniformed soldiers who were fully armed, can be inferred
that they were co-conspirators in the failed December
coup. (Annex A, Rollo, p. 65; Emphasis supplied)
As can be readily seen, the factual allegations supporting the rebellion
charge constitute or include the very incident which gave rise to the charge
of the violation under Presidential Decree No. 1829. Under the Department of
Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion
complexed with murder and multiple frustrated murder but there could be
101 separate and independent prosecutions for harboring and concealing"
Honasan and 100 other armed rebels under PD No. 1829. The splitting of
component elements is readily apparent.
The petitioner is now facing charges of rebellion in conspiracy with the
fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with Honasan,
petitioners alleged act of harboring or concealing was for no other purpose
but in furtherance of the crime of rebellion thus constitute a component
thereof. it was motivated by the single intent or resolution to commit the
crime of rebellion. As held in People v. Hernandez, supra:
In short, political crimes are those directly aimed against the
political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is
the intent or motive. (p. 536)
The crime of rebellion consists of many acts. It is described as a vast
movement of men and a complex net of intrigues and plots. (People v.
Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in

furtherance of the rebellion though crimes in themselves are deemed

absorbed in the one single crime of rebellion. (People v. Geronimo, 100 Phil.
90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107
Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In this case, the act of
harboring or concealing Col. Honasan is clearly a mere component or
ingredient of rebellion or an act done in furtherance of the rebellion. It
cannot therefore be made the basis of a separate charge. The case of People
v. Prieto 2 (80 Phil., 138 [1948]) is instructive:
In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action. Its very nature partakes of
a deed or physical activity as opposed to a mental operation.
(Cramer v. U.S., ante) This deed or physical activity may be, and
often is, in itself a criminal offense under another penal statute
or provision. Even so, when the deed is charged as an element of
treason it becomes Identified with the latter crime and can not
be the subject of a separate punishment, or used in combination
with treason to increase the penalty as article 48 of the Revised
Penal Code provides. Just as one can not be punished for
possessing opium in a prosecution for smoking the Identical
drug, and a robber cannot be held guilty of coercion or trespass
to a dwelling in a prosecution for robbery, because possession of
opium and force and trespass are inherent in smoking and in
robbery respectively, so may not a defendant be made liable for
murder as a separate crime or in conjunction with another
offense where, as in this case, it is averred as a constitutive
ingredient of treason.
The prosecution tries to distinguish by contending that harboring or
concealing a fugitive is punishable under a special law while the rebellion
case is based on the Revised Penal Code; hence, prosecution under one law
will not bar a prosecution under the other. This argument is specious in
rebellion cases.
In the light of the Hernandez doctrine the prosecution's theory must fail. The
rationale remains the same. All crimes, whether punishable under a special
law or general law, which are mere components or ingredients, or committed
in furtherance thereof, become absorbed in the crime of rebellion and can
not be isolated and charged as separate crimes in themselves. Thus:

This does not detract, however, from the rule that the ingredients
of a crime form part and parcel thereof, and hence, are absorbed
by the same and cannot be punished either separately therefrom
or by the application of Article 48 of the Revised Penal Code. ...
(People v. Hernandez, supra, at p. 528)
The Hernandez and other related cases mention common crimes as
absorbed in the crime of rebellion. These common crimes refer to all acts of
violence such as murder, arson, robbery, kidnapping etc. as provided in the
Revised Penal Code. The attendant circumstances in the instant case,
however, constrain us to rule that the theory of absorption in rebellion cases
must not confine itself to common crimes but also to offenses under special
laws which are perpetrated in furtherance of the political offense.
The conversation and, therefore, alleged conspiring of Senator Ponce Enrile
with Colonel Honasan is too intimately tied up with his allegedly harboring
and concealing Honasan for practically the same act to form two separate
crimes of rebellion and violation of PD No. 1829.
Clearly, the petitioner's alleged act of harboring or concealing which was
based on his acts of conspiring with Honasan was committed in connection
with or in furtherance of rebellion and must now be deemed as absorbed by,
merged in, and Identified with the crime of rebellion punished in Articles 134
and 135 of the RPC.
Thus, national, as well as international, laws and jurisprudence
overwhelmingly favor the proposition that common crimes,
perpetrated in furtherance of a political offense, are divested of
their character as "common" offenses, and assume the political
complexion of the main crime of which they are mere
ingredients, and consequently, cannot be punished separately
from the principal offense, or complexed with the same, to justify
the imposition of a graver penalty. (People v. Hernandez, supra,
p. 541)
In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having
pleaded guilty and convicted of the crime of rebellion, faced an independent
prosecution for illegal possession of firearms. The Court ruled:
An examination of the record, however, discloses that the crime
with which the accused is charged in the present case which is

that of illegal possession of firearm and ammunition is already

absorbed as a necessary element or ingredient in the crime of
rebellion with which the same accused is charged with other
persons in a separate case and wherein he pleaded guilty and
was convicted. (at page 662)
xxx xxx xxx
[T]he conclusion is inescapable that the crime with which the
accused is charged in the present case is already absorbed in the
rebellion case and so to press it further now would be to place
him in double jeopardy. (at page 663)
Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January
30, 1990) where the Court had the occasion to pass upon a nearly similar
issue. In this case, the petitioner Misolas, an alleged member of the New
Peoples Army (NPA), was charged with illegal possession of firearms and
ammunitions in furtherance of subversion under Section 1 of PD 1866. In his
motion to quash the information, the petitioner based his arguments on
the Hernandez and Geronimo rulings on the doctrine of absorption of
common in rebellion. The Court, however, clarified, to wit:
... in the present case, petitioner is being charged specifically for
the qualified offense of illegal possession of firearms and
ammunition under PD 1866. HE IS NOT BEING CHARGED WITH
THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL
POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY
CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF
FIREARMS. Thus, the rulings of the Court in Hernandez,
Geronimo and Rodriguez find no application in this case.
The Court in the above case upheld the prosecution for illegal possession of
firearms under PD 1866 because no separate prosecution for subversion or
rebellion had been filed. 3 The prosecution must make up its mind whether to
charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case
and charge him with murder and multiple frustrated murder and also
violation of P.D. 1829. It cannot complex the rebellion with murder and
multiple frustrated murder. Neither can it prosecute him for rebellion in
Quezon City and violation of PD 1829 in Makati. It should be noted that there
is in fact a separate prosecution for rebellion already filed with the Regional

Trial Court of Quezon City. In such a case, the independent prosecution under
PD 1829 can not prosper.
As we have earlier mentioned, the intent or motive is a decisive factor. If
Senator Ponce Enrile is not charged with rebellion and he harbored or
concealed Colonel Honasan simply because the latter is a friend and former
associate, the motive for the act is completely different. But if the act is
committed with political or social motives, that is in furtherance of rebellion,
then it should be deemed to form part of the crime of rebellion instead of
being punished separately.
In view of the foregoing, the petitioner can not be tried separately under PD
1829 in addition to his being prosecuted in the rebellion case. With this
ruling, there is no need for the Court to pass upon the other issues raised by
the petitioner.
WHEREFORE, the petition is GRANTED. The Information in Criminal Case No.
90-777 is QUASHED. The writ of preliminary injunction, enjoining respondent
Judges and their successors in Criminal Case No. 90-777, Regional Trial Court
of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from
conducting further proceedings therein is made permanent.
SO ORDERED.