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Read JACINTO vs. PEOPLE, G.R. No.

162540, July 13, 2009 (this is a new case for impossible crime - we will discuss this case before we take up Articles 7 to 10) Read Articles 7 to 10 and the following cases 1. PEOPLE vs. DINNES OLASO and ROLLY ANGELIO, G.R. No. 197540, February 27, 2012 2. PEOPLE vs. ROEL PUNZALAN, ET. AL., G.R. No. 78853 November 8, 1991 3. PEOPLE vs. LASCUNA (GR 90626, August 18, 1993) 4. PECHO vs. SANDIGANBAYAN (238 SCRA 116 (1994)) 5. PEOPLE vs. MARTIN SIMON, G.R. No. 93028 July 29, 1994 6. Read Articles 25 and 26 in relation to Article 9 RPC 7. PEOPLE vs. ROMANA SILVESTRE (supra) CONSPIRACY PEOPLE VS. DINNES OLASO AND ROLLY ANGELIO [G.R. No. 197540, February 27, 2012] This is an appeal from the decision dated February 24, 2011 of the Court of Appeals (CA) in CA-G.R. CR HC No. 03770. The CA affirmed with modification the decision dated August 1, 2008 of the Regional Trial Court (RTC), Branch 122, Caloocan City, in Criminal Case No. C-71776, convicting Rolly Angelio (appellant) of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. The CA modified the RTC decision by ordering the appellant to indemnify the heirs of Narciso Patingo (victim) in the amounts of P75,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages, P25,000.00 as temperate damages and P25,000.00 as exemplary damages.[4] The Facts The appellant and one Dinnes Olaso[5] were charged with murder under the following information: That on or about the 25th day of May 2004, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually aiding with (sic) one another, without any justifiable cause, with deliberate intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and stab with bladed weapons on the vital parts of his body one NARCISO PATINGO Y CAMAYMAYAN, thereby inflicting upon the latter serious physical injuries, which injuries directly caused the victims death. Only the appellant was apprehended and when arraigned, he pleaded not guilty to the charge. Trial on the merits thereafter ensued. The prosecutions case was anchored on the eyewitness testimony of the victims brother, Jimmy Patingo (eyewitness), who saw the appellant and Olaso flag down the tricycle driven by the victim. According to the eyewitness, the appellant rode at the back of the drivers seat while Olaso went inside the tricycle. The appellant suddenly embraced the victim while Olaso repeatedly stabbed him. Both the appellant and Olaso fled when they saw the eyewitness approaching. The victim died on his way to the hospital. The eyewitness testified that he incurred expenses in the amount of P120,000.00 for the burial and wake of the victim. The autopsy report showed that the victim suffered stab and incise wounds located mostly on the left portion of his body.[7] Two stab wounds were inflicted on his heart.[8] The victim died due to loss of blood secondary to multiple stab wounds in the trunk.[9] The appellant denied any participation in the stabbing incident. He claimed that he merely directed Olaso to the victim when he was asked about the identity of the driver of the tricycle that Olaso was then looking for. The appellant admitted that Olaso was his childhood friend but denied any knowledge of the motive behind the

stabbing and why he (the appellant) became involved in the case. In its decision, the RTC found the appellant guilty beyond reasonable doubt of murder based on the qualifying circumstance of treachery. The RTC also ruled that there was conspiracy between the appellant and Olaso to kill the victim. The RTC sentenced the appellant to suffer the penalty of reclusion perpetua and ordered him to indemnify the heirs of the victim in the amount of P50,000.00.[10] The CA, on appeal, affirmed the appellants conviction with modification of the imposed civil liability. The CA rejected the appellants argument that the inconsistency between the sworn affidavit (that he and Olaso stabbed the victim) and the testimony of the eyewitness (that it was only Olaso who stabbed the victim) created doubt as to his participation in the stabbing. The CA held that the testimony of the eyewitness was only more detailed with respect to the appellants participation than what was stated in the sworn affidavit. The CA observed that both the sworn affidavit and the testimony of the eyewitness established the collective effort of the appellant and Olaso to kill the victim.[11] In addition, the CA ruled that the RTC correctly appreciated the attendant conspiracy and treachery in the victims killing, explaining that the overt acts of the appellant and Olaso demonstrated their clear intent to kill the victim. The CA further held that the appellants participation in embracing the victim while Olaso repeatedly stabbed him was indispensable in the commission of the crime as it left the victim defenseless and unable to resist the attack.[12] With respect to the award of damages, the CA increased the civil indemnity ex delictofrom P50,000.00 to P75,000.00. The CA also awarded P25,000.00 as temperate damages in lieu of actual damages, pursuant to Article 2224 of the Civil Code, as amended. Likewise, the CA awarded P50,000.00 as moral damages, holding that the award was mandatory in a murder case, and P25,000.00 as exemplary damages, since the killing was attended with treachery. Hence, the present appeal. The Issues The appellant attacks his conviction by raising two issues involving the appreciation of the testimony of the eyewitness on the extent of his participation and the nature of the crime committed. The Office of the Solicitor General (OSG) maintains the credibility of the narration made by the eyewitness against whom no ill-motive was established. The OSG insists that the extent of the appellants participation as co-conspirator in the killing of the victim was clearly proven by the evidence. Likewise fully established was the treacherous manner in the way the two men ganged up and killed the victim through their concerted efforts. The Courts Ruling We find no reason to overturn the conviction of the appellant. The factual findings of the RTC, when affirmed by the CA, are generally binding and conclusive upon this Court.[13] When the credibility of the eyewitness is at issue, we give due deference and respect to the assessment made by the RTC, absent any showing that it had overlooked circumstances that would have affected the final outcome of the case.[14] Thus, once a guilty verdict has been rendered, the appellant has the burden to clearly prove on appeal that errors in the appreciation of the evidence committed by the lower courts. We agree with the CAs finding giving credence to the eyewitness account which firmly and positively identified the appellant as one of the perpetrators of the crime. The records failed to show any ill-motive on the part of the eyewitness to falsely testify against the appellant. On the other hand, the appellant draws attention to the inconsistent statements made by the eyewitness in his sworn affidavit and in his court testimony regarding his participation in the crime. It is settled that discrepancies between the statements of the affiant in his affidavit and those made

by him on the witness stand do not necessarily discredit [the said witness] since ex parte affidavits are generally incomplete, and are generally subordinated in importance to testimony in open court.[15] In other words, the existence of discrepancies between the sworn affidavit and the testimony of the eyewitness in court does not render his account of the antecedent events unreliable. In this case, the inconsistencies pointed out are too trivial to have any material bearing in the determination of the appellants guilt. We take note that the eyewitness sworn affidavit and court testimony implicated the appellant in the killing of the victim. Moreover, both statements of the eyewitness can be reconciled by a scrutiny of the court testimony which only provided a more detailed account of the antecedent events and of the appellants actual participation in killing the victim. We also find that the inconsistencies pointed out to be inconsequential, given the presence of conspiracy between the appellant and Olaso in killing the victim. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[16] The presence of conspiracy may be inferred from the circumstances where all the accused acted in concert at the time of the commission of the offense.[17] Conspiracy is sufficiently established when the concerted acts show the same purpose or common design and are united in its execution.[18] Moreover, when there is conspiracy, it is not important who delivered the fatal blow since the act of one is considered the act of all.[19] It matters not who among the accused actually killed the victim as each of the accused is equally guilty of the crime charged.[20] As testified to by the eyewitness, the overt acts of the appellant and Olaso showing their conspiracy to kill the victim are: (1) the appellant and Olaso flagged down the tricycle being driven by the victim; (2) the appellant seated himself at the back of the drivers seat while Olaso went inside the tricycle; (3) the appellant and Olaso simultaneously assaulted the victim the appellant embracing the victim while Olaso stabbed him; and (4) both men immediately fled the scene after the stabbing. The above circumstances plainly show the common design and the unity of purpose between the appellant and Olaso in executing their plan to kill the victim. On the issue of the nature of the killing, we find that the CA correctly appreciated the qualifying circumstance of 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 ensure its execution, without risk to himself arising from the defense which the offended party might make.[21] To establish treachery, two elements must concur: (a) that at the time of the attack, the victim was not in a position to defend himself; and (b) that the offender consciously adopted the particular means of attack employed.[22] The records show that the victim was attacked while driving his tricycle. Similarly, the autopsy findings show the lack of defensive wounds on the victims body which indicated how sudden and unexpected the attack had been and how the unsuspecting victim was unable to put up any defense. These same records also show that the attack was the result of deliberate and careful planning between the appellant and Olaso, as demonstrated by the evidence showing: (1) the designation of the respective roles that the two men would play in committing the crime; and (2) the act of carrying a weapon to be used against the victim. Treachery can be clearly inferred under the circumstances of the perpetrators plan which ensured the execution of the killing without risk of any possible harm to the appellant and Olaso. Accordingly, we find that the records amply support with moral certainty the appellants guilt for the crime of murder. Article 248 of the Revised Penal Code (Code), as amended, provides: [a]ny person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant circumstances: 1. With treachery x x x.

Murder was committed, considering the use of treachery in a killing that does not fall within the definition of parricide under Article 246 of the Code. Thus, the RTC and the CA correctly imposed the penalty of reclusion perpetua on the appellant, absent any attendant mitigating or aggravating circumstances.[23] In this regard, we also uphold the CAs award of P50,000.00 as moral damages for the death of the victim.[24]However, we modify the other awards given by the CA to conform to prevailing jurisprudence. First, the award of civil indemnity is reduced from P75,000.00 to P50,000.00. We held in People of the Philippines v. David Maningding[25] that when the circumstances surrounding the crime call for the imposition of reclusion perpetua only, the proper amount should be P50,000.00 as civil indemnity. Second, we increase the award of temperate damages from P25,000.00 to P30,000.00 in accordance with current jurisprudence.[26] And lastly, we increase the award of exemplary damages from P25,000.00 to P30,000.00 since the killing was attended with treachery.[27] WHEREFORE, we AFFIRM the decision dated February 24, 2011 of the Court of Appeals in CA-G.R. CR HC No. 03770 finding appellant Rolly Angelio guilty beyond reasonable doubt of murder. We MODIFY the awards of damages in that appellant Rolly Angelio is ORDERED to PAY the heirs of the victim Narciso Patingo the following amounts: 1) P50,000.00 as civil indemnity; 2) P50,000.00 as moral damages; 3) P30,000.00 as temperate damages; and 4) P30,000.00 as exemplary damages. DIGEST: PEOPLE OF THE PHILIPPINES, APPELLEE, VS. DINNES OLASO AND ROLLY ANGELIO, ACCUSED. ROLLY ANGELIO, APPELLANT. Facts: This is an appeal from the decision dated February 24, 2011 of the Court of Appeals (CA) in CA-G.R. CR HC No. 03770. The CA affirmed with modification the decision dated August 1, 2008 of the Regional Trial Court (RTC), Branch 122, Caloocan City, in Criminal Case No. C-71776, convicting Rolly Angelio (appellant) of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. That on or about the 25th day of May 2004, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually aiding with (sic) one another, without any justifiable cause, with deliberate intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and stab with bladed weapons on the vital parts of his body one NARCISO PATINGO Y CAMAYMAYAN, thereby inflicting upon the latter serious physical injuries, which injuries directly caused the victims death. Ruling: The Court sustained the ruling of the RTC and CA, with some modifications in terms of the amounts to be indemnified. Though the accused- appellant denied being part of the stabbing and was only directed Olaso as to the identity of the driver of the tricycle, the Court sighted that there was conspiracy involved. The Court said: Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. As testified to by the eyewitness, the overt acts of the appellant and Olaso showing their conspiracy to kill the victim are: (1) the appellant and Olaso flagged down the tricycle being driven by the victim; (2) the

appellant seated himself at the back of the drivers seat while Olaso went inside the tricycle; (3) the appellant and Olaso simultaneously assaulted the victim the appellant embracing the victim while Olaso stabbed him; and (4) both men immediately fled the scene after the stabbing. The above circumstances plainly show the common design and the unity of purpose between the appellant and Olaso in executing their plan to kill the victim. Additional info: Eyewitness: victims brother, Jimmy Patingo Autopsy report: The autopsy report showed that the victim suffered stab and incise wounds located mostly on the left portion of his body. Two stab wounds were inflicted on his heart. The victim died due to loss of blood secondary to multiple stab wounds in the trunk. There was also lack of defensive wounds. Nature of crime: murder was charged because of the attendant circumstance of treachery. Attack was sudden and unexpected and victim was unable to put up any defense.

PEOPLE vs. PUNZALAN (G.R. No. 78853 November 8, 1991) The accused, Marieta Mendoza, appeals from the decision of the Regional Trial Court, Fourth Judicial Region, Branch 30, San Pablo City, convicting her of the crime of robbery with homicide and imposing on her the penalty of reclusion perpetua. The appellant, together with Roel Punzalan, Jose Besida, and Domingo Mendoza, were charged in Criminal Case No. 4578-SP in an information which read as follows: That on or about July 11, 1986 at Poblacion, Alaminos, Laguna and within the jurisdiction of this Honorable Court, accused MARIETA MENDOZA, in conspiracy with her husband DOMINGO MENDOZA and ROEL PUNZALAN and JOSE BESIDA alias "Jose Vecido" who are also still at large and whose case is still pending in the Municipal Trial Court, except Domingo V. Mendoza, were all employed as domestic helpers in the house of Judge Conrado Fule an Mrs. Lourdes Fule located in aforesaid municipality, while conveniently provided with bladed weapons, taking advantage of night time with treachery and evident premeditation, with abused of superior strength, in disregard of the respect due the offended party and dwelling, conspiring, confederating and mutually helping one another, forcibly entered the bedroom of Mrs. Lourdes Fule where the latter was sleeping and once inside therein, with intent to kill, did then and there wilfully, unlawfully and feloniously jointly attack assault and stab Mrs. Lourdes Fule with the weapons they were provided, inflicting upon the latters mortal stab wounds on different parts of her body which caused her instantaneous death and on the same occasion and by reason thereof, with intent to gain, ransacked the bedroom of the victim, Mrs. Lourdes Fule and did then and there wilfully, unlawfully, and feloniously, take steal and carry away cash money in the sum of TEN THOUSAND (P10,000.00) PESOS and assorted pieces of jewelry worth ONE MILLION SIX HUNDRED THIRTY SIX THOUSAND (P1,636,000.00) PESOS, belonging to the victim Lourdes Fule, to the damage and prejudice of the victim and the surviving heirs, in the amount of ONE MILLION SIX HUNDRED FORTY SIX THOUSAND (P1,646,000.00) PESOS, representing the total amount unlawfully taken and carried away and damages by reason of the death of aforenamed victim. Appellant's co-accused have remained at large up to the present time. Consequently, the prosecution of the case proceeded only against appellant; the case was archived by the trial court with respect to her co-accused.

Appellant proceeded to trial after entering a plea of not guilty on 7 May 1986. On 17 September 1986, after the prosecution had presented four (4) of its six (6) witnesses, Judge Benedicto Paz inhibited himself on the ground that his landlady was the sisterin-law of the victim. The case was then re-raffled to the sala of Judge Salvador P. de Guzman Jr. From there the case was re-raffled again to another sala because Judge de Guzman could not maintain a weekly schedule of trial hearings for the case. The case was eventually assigned to the sala of Judge J. Ausberto Jaramillo, Jr., who tried the case to completion and wrote the judgment of conviction dated 22 May 1987. The dispositive portion of the decision states: WHEREFORE, in view of all the foregoing, the court finds accused Marieta Mendoza guilty beyond reasonable doubt of the crime of robbery with homicide punishable from reclusion perpetua to death aggravated by the circumstances of dwelling, in disregard of the respect due to the offended party, abuse of superior strength, evident premeditation, nighttime and abuse of confidence without any mitigating circumstance, and hereby sentences her to the applicable penalty of death. Fortunately, for accused Marieta Mendoza, however, the death penalty has to be reduced to life imprisonment in accordance with Article III, Section 19(1) of the 1987 Philippine Constitution. Accused Marieta Mendoza shall indemnify the heirs of Mrs. Lourdes Fule the sum of P30,000 as civil liability for her death and shall also indemnify them the peso equivalent of the US$5,000, P70,000 and P1,500,000.00 representing the stolen items, without subsidiary imprisonment in case of insolvency and to pay the costs of the proceedings. The facts of the case as found by the trial court are as follows: The accused Marieta is married to accused Domingo Mendoza. Since two years prior to the incident in question, the former, was employed on an off-and-on basis with the family of the Fules until the time when the daughter of the family cook Nieves Garcia Santos left when accused Marieta became a permanent househelp. Accused Marieta's primary duty was to attend to the needs of Mrs. Lourdes Fule who was then 66 years old, sick with hypertension. To be able to promptly administer to the needs of her mistress, the accused Marieta was made to sleep immediately outside the door of her mistress so that medicines could be given to her as the need arises. The accused Roel Punzalan was one of the houseboys of the Fules since about 4 to 5 months prior to the incident while accused Jose Besida alias "Jose Vecidor" was hired two months prior, at the instance and effort of accused Domingo Mendoza. A week prior to the incident all the accused plotted to rob Mrs. Fule who had a collection of jewelries and certain amount of cash. On 9 July 1985 accused Domingo Mendoza arrived at 9:00 a.m. and stayed at the servants' quarters of the Fule compound located at corner Del Pilar and Rizal Avenue, Alaminos, Laguna. He was seen in close huddle with the other said accused. He spent the night until the next day of July 10, 1985 (sic). After the master of the house, Judge Conrado Fule left for Manila at about 4:00 p.m. all the accused were seen to be in secret and close conversation. Accused Domingo Mendoza was heard to have uttered "Ituloy na natin wala si Judge Fule". Accused Domingo Mendoza left at 6:30 p.m. that day. At about 7:30 p.m. Gregorio Fule had supper at his mother's house while being served by Nieves Garcia Santos and accused Marieta. After eating, mother and son were talking about their health while the son was fixing the betamax unit. After fixing the betamax, the son, Gregorio Fule left his mother watching a betamax tape together with the accused Marieta, Roel Punzalan, Jose Besida, a child of Marieta and Nieves Garcia Santos. At about 11:30 p.m. of July 10, 1985, accused Roel Punzalan and Jose Besida went out of the house for their servants' quarters while the victim, Lourdes Fule and accused Marieta locked up all the doors to the house. At 12:30 a.m. of July 11, 1985 accused Marieta was seen at the door of the servant's quarters calling (sutsot) for Roel Punzalan and Jose Besida after which the three of the accused went up to the house. Accused Marieta Mendoza knocked on

the door of the victim and woke her up on some pretext. When the door was opened by the victim, accused Roel Punzalan and Jose Besida went rushing in and inflicted the injuries and stab wounds on the victim. They put cloth on her mouth to prevent her from making an outcry. When the victim was still lying on her bed bleeding to death, the accused Roel Punzalan and Jose Besida ransacked her drawers and scooped up the jewelries and cash money. At this juncture, accused Domingo Mendoza was waiting in a parked jeep outside the Fule compound. While all these were going on accused Marieta did not do anything to help the victim. She did not also prevent the killing of the victim. When the crime was consummated, the accused Roel Punzalan and Jose Besida told accused Marieta that they would meet at Del Remedio, changed their bloodied clothes at the staircase and under the oliva (sic) tree on the ground of the Fule compound. At 6:00 a.m. of July 11, 1985, accused Marieta woke up June Murillo, another houseboy and Nieves Garcia Santos without telling any of them about anything unusual that transpired previously or what had happened to the victim. Murillo started cleaning the Fule compound until he noticed that the front iron gate of the Fule compound was open. He reported this to accused Marieta and Nieves Garcia Santos and the three of them went up to the adjoining house of Gregorio Fule to report the matter. Accused Marieta informed Gregorio Fule that "Napasukan tayo ng magnanakaw". Murillo was instructed to fetch the police. Gregorio Fule saw the bloodstained clothing near the oliva (sic) tree and other personal items on the stairs leading to her mothers room. When he went up, he saw the sleeping mat, pillow and blanket of the accused Marieta immediately outside the door of her mother's room and when he was already inside he saw [his] mother already covered with blood, blood was all over the room, in pillows, boxes, etc. The drawer where the valuables were kept was open emptied of the $5,000.00, P70,000.00 cash and P1.5 million worth of assorted jewelries. He went out of his mother's room and confronted accused Marieta on what happened. Accused Marieta responded that she knew nothing allegedly because "Tulog na tulog po ako". The police arrived and an investigation was conducted. Accused Marieta was initially treated as a possible witness until later on when she was suspected of having an involvement in the crime. Appellant Marieta Mendoza narrated in court a different story. Her story, as set out in her Brief, was the following: She "had been working as a housemaid of Mrs. Lourdes Fule for five (5) years at the time the incident happened although not on a continuous basis. There was (sic) times when she was borrowed by Mrs. Fule's daughter, Marilou. On the first week of July, 1985, she was with Marilou but on the second week thereof, she was with Mrs. Fule. On the night of July 10, 1985, after all the members of the household had taken their supper and after fixing the kitchen, Marieta joined Mrs. Fule in watching a television program together with two children, one of whom was her son. Roel Punzalan and Jose Besida also came and joined them. After a while, she noticed Jose Besida went to the kitchen and inside her room. She did not notice Roel Punzalan left (sic) the place where they were watching television. The doors were then all open including the door at the room of Mrs. Fule and the door at her room. They have finished watching television at around 11:00 o'clock in the evening of July 10, 1985 after which Mrs. Fule and she locked all the doors. She was the one who put up the mosquito net on the bed of Mrs. Fule and she did not notice anybody inside the room. She slept with her son outside the room of Mrs. Fule, around three meters from the door of Mrs. Fule's room outside of the white mark, shown in Exhibit "F-1". When lying down, the cabinet in her room was at her right side and so with the way leading to the comfort room. At her left side was the aparador and the room where rice and iron (sic) clothes are kept. The door of the room of Mrs. Fule has a lock both inside and outside. Until the time she went to sleep, she did not notice Besida went out of the room. Mrs. Fule's schedule of taking her medicine was after each meal, thus she does not have to wake up Mrs. Fule for the medicines.

At around 2:00 o'clock in the morning of July 11, 1985, Marieta was awakened by sounds of moaning from Mrs. Fule but when she stood up, she was blocked by Roel Punzalan and was told to just lie down or else she will be killed at the same time poking something at her back which she presumed to be a bladed instrument because it pierced through her skin. Because of the threat, Marieta just lay down facing the cabinet. After around three minutes, Punzalan went out of the room but she did not notice whether he was carrying something or whether his shirt had bloodstain. After three minutes, another person passed by and because of fear for her life, she just lay down facing sidewise towards the cabinet with her back against the passage from the door of the room of Mrs. Fule to the other door. It was about 2:15 to 2:30 o'clock in the morning that these two persons went out of the room of Mrs. Fule and her room. The door of the room of Mrs. Fule was slightly open and she saw scattered things but she did not see Mrs. Fule. From the time she was ordered to lie dawn by Punzalan, she did not sleep, she just lay down. Much as she wanted to inform the other occupants of the house, she was not able to do so because of fear that Punzalan might still be in the house, so she waited until around 6:00 o'clock in the morning. She crawled going to Nieves Santos and inquired about Roel Punzalan whom she saw at the room of Mrs. Fule. She told Nieves that she heard Mrs. Fule moaning and that she saw Roel Punzalan in the room of Mrs. Fule at around 2:00 o'clock that morning. Upon knowing that Roel Punzalan and Jose Besida were not there, she and Nieves together with Jun Murillo went to Gregorio Fule who is just living in the house adjacent to the house of Judge Fule. When they told Gregorio that Roel Punzalan and Jose Besida were no longer there, they were told by Gregorio to call a (sic) police and Gregorio went directly to the room of his mother. Until such time, she had no knowledge of what actually happened to Mrs. Fule because the first thing she did in the morning was to inquire from Nieves Santos the whereabouts of Punzalan because of what she had witnessed a few hours ago and later she was told by Gregorio to report the incident to the police. Marieta further testified that her husband, Domingo visited her days before the incident. They talked about the children and his drinking and nothing else. When Judge Fule left for Manila on July 10, 1985, Domingo was no longer there having left that day at around 4:00 o'clock in the afternoon. She did not notice her husband talked (sic) with Roel Punzalan and Jose Besida. She knew nothing of the plans of Punzalan and Besida. Neither did she knew (sic) of the presence of these jewelries and money inside the room of Mrs. Fule. Marieta was investigated several times. The first statement was in her own handwriting which was dictated to her by Ma Ading (Nieves Santos' nickname) and Francisco Fule (Gregorio's brother) with a threat to kill every member of her family if shell make a mistake. Another statement was in typewritten form prepared by the police when she was interrogated at the police station on July 11, 1985 (Exh."H"). She did not fully understand every question asked of her by the police officer. She signed said statement because she was told that there was nothing wrong in signing said statement. On July 15, 1985, another statement was prepared at the police station of Alaminos, Laguna with her signature appearing thereon. Appellant, in her Brief, made the following assignment of errors: I The trial court gravely erred in giving much weight and credence to the evidence for the prosecution and in disregarding totally the evidence for the defense. II The trial court gravely erred in finding accused-appellant as a conspirator granting without admitting that conspiracy existed in the commission of the offense. III The trial court gravely erred in finding accused-appellant guilty beyond reasonable doubt of the crime as charged in the information. IV

The trial court gravely erred in appreciating the aggravating circumstance of nighttime, abuse of superior strength, disregard of the respect due the offended party on account of his rank, age or sex, dwelling and evident premeditation. Appellant maintains that the prosecution failed to establish that she was a conspirator in respect of the robbery or the slaying. To this end, she seeks to impugn the credibility of some prosecution witnesses who gave testimony indicating her adherence to the plan of robbing the victim. She points out that since the Judge who had observed the demeanor of witnesses Nieves Santos and Pepito Hernandez in court was not the same Judge who wrote the decision under review, the Supreme Court is not bound by the latter judge's findings on the credibility of these witnesses. The general rule is that findings of the trial court on the credibility of witnesses are accorded great weight and will not lightly be disturbed by an appellate court. The underlying reason for this rule is that the trial judge had an opportunity to observe the demeanor of witnesses while testifying, an advantage not enjoyed by an appellate court. Appellant's contention has merit in the sense that the Court cannot rely solely on the aforestated rule with respect to the two witnesses mentioned, (Nieves Santos and Pepito Hernandez) and must make its own evaluation of the testimony of these witnesses. But the Court must also emphasize that the circumstance pointed out by appellant, taken alone, does not render erroneous the trial court's reliance upon the testimony given by Santos and Hernandez. The continuity of a court and the efficacy of its proceedings are not affected by interruptions in the service of the judge(s) presiding over it. In this case, the Judge who wrote the decision had presided over the latter half of the trial. Appellant contends that the trial court should not have found Nieves Santos and Pepito Hernandez as credible witnesses, considering that both were employees of the victim's husband and considering further that their sworn statements tending to incriminate the appellant were submitted to the Fiscal's Office only three (3) months after the commission of the crime. Appellant suggests that Judge Fule exercised considerable influence over these two witnesses. It may well be true that Judge Fule had asked and persuaded Santos and Hernandez to testify for the prosecution. However, this Court is not prepared to believe, for that reason alone, that Judge Fule led those two witnesses to testify falsely against appellant. There simply is no basis for such an insinuation. The fact that witnesses Nieves Santos and Pepito Hernandez were brought to the Fiscal's Office by counsel of the heirs of the victim three (3) months after the killing of the victim, does not by itself impair their credibility. An obvious explanation for this delay, if delay it was, is that it took sometime before those two (2) individuals overcame their natural reluctance to become involved in the investigation of a brutal crime and to testify in court when co-accused Roel Punzalan and Jose Besida were, and are, still at large. Appellant then contends that the testimony of Santos and Hernandez was incredible in itself. Appellant's claim is that it was improbable that Pepito Hernandez saw Domingo Mendoza (husband of appellant Marieta) in front of Fule's house at 4:30 A.M. on 11 July 1985 because this would place him (Domingo Mendoza) approximately 2 1/2 hours behind the time when Roel Punzalan and Jose Besida left the room of the victim. It does not seem to the Court necessary to deal with this contention. That particular statement of Hernandez is not directly relevant to the establishment of Marieta's culpability. Whether or not Domingo Mendoza had furnished the getaway vehicle for Roel Punzalan and Jose Besida, does not impact upon other evidence on record tending to show that Marieta had indeed conspired to rob the victim. Marieta impugns the testimony of Nieves Santos as improbable. Marieta claims, first, that it is unlikely that Nieves had chanced upon and heard a discussion among the

several accused relating to a plan to perpetrate the robbery during the absence of Judge Fule, considering that the accused would, (if they were true conspirators) have taken great pains to conceal their criminal plan from a third party who might denounce them. Secondly, Marieta questions why Nieves Santos was able to hear and recall only incriminating remarks from the alleged discussion. Finally, Marieta asks why, if Nieves Santos had indeed seen her (Marieta) summon Roel Punzalan and Jose Besida from the servants' quarters an hour or so before the crime was committed, Nieves found nothing unusual in such summons and chose casually to go back to sleep. Once more, we consider that it is unnecessary to deal with these speculative arguments in any detail. We do not think it impossible that Nieves Santos should have overheard only fragments of a discussion among the co-accused who, presumably, were not interested in broadcasting their intentions to the whole world. The summons by Marieta of her co-accused did not alarm Nieves Santos who thought that the house boys had been called for by the victim. That Nieves Santos did not volunteer to get up and help in whatever chore may have been needed to be done for Mrs. Fule, does not appear unusual at all when one recalls that Nieves Santos was a cook rather than a house-girl or an all-purpose domestic servant. Further, the acts and words that Nieves Santos testified she had seen and overheard do not appear unambiguous indications of some evil intent or act. Only after the discovery of the bloody killing of Mrs. Fule and the taking away of valuable jewelry in addition to cash, did those acts and words appear significant. Appellant next seeks to assail the testimony of prosecution witness Gregorio Fule, son of Judge Fule and the victim Mrs. Lourdes Fule. Marieta contends it was unnatural that Gregorio Fule had failed to mention having discovered some pieces of jewelry belonging to his mother in or under appellant's pillow on her sleeping mat in the corridor immediately outside Mrs. Fule's bedroom on the morning that he found his mother's body. Gregorio Fule first made written mention of such pieces of jewelry three months after the killing and robbery. Marieta also contends that Gregorio contradicted himself when he stated in court that he had placed the jewelry he accidentally found on the floor outside the bedroom in a bank vault, considering that Gregorio also testified that Judge Fule had refused to permit the opening of Mrs. Fule's or the family's vault or safety deposit box in the Prudential Bank branch in Alaminos. Marieta asks why, if she was indeed involved in the crime, she would conceal the fruits thereof in a place so open to discovery. Once more, we do not think these arguments significantly affect the testimony of Gregorio Fule. An ordinary person suddenly confronted with the bloodly corpse of his mother would be so shocked and disoriented, as Gregorio Fule was, as to forget or overlooked confronting appellant Marieta about the stray pieces of jewelry on the floor near her sleeping mat. That he had executed his statement referring, among other things, to such stray pieces of jewelry only three (3) months later does not necessarily imply that he had merely fabricated such statement. Moreover, whether or not the said pieces of jewelry were in fact placed by Gregorio Fule in the bank vault (possibly in a vault of the Rural Bank of Alaminos, whose offices were on the first floor of Judge Fule's house) has no necessary bearing on the truth or falsity of his statement concerning his inadvertent discovery of such stray pieces of jewelry on the floor. As for the supposed improbability of Marieta ineffectually hiding those pieces of jewelry in or near her pillow, it seems sufficient to note that she may well have been unable to think of a more secure hiding place for the stray pieces of jewelry on the spur of the moment that brutal and bloody night. In any case, Judge Jaramillo who wrote the decision of the trial court had in fact observed witness Gregorio Fule as he testified in court and Judge Jaramillo found his testimony worthy of credence. Since there was no direct evidence that appellant Marieta had actually participated in the physical assault and stabbing of the victim Mrs. Lourdes Fule, her conviction rests upon the conclusion of the trial court that she had participated in a conspiracy to

commit the robbery in the course of which the homicide had occurred. The factors which lead the trial court to this conclusion are set out in repetitive detail in the following portion of the trial court's decision: It is undisputed that accused Marieta was already aware that Lourdes Fule was moaning that fateful night and had glimpsed inside the victim's room seeing scattered things. But she did not do anything to assist her or prevent her killing. Neither did the accused Marieta relate what she witnessed that night to Nieves Garcia Santos and Gregorio Fule. Her suppression of such information is highly auspicious, to say the least. Her claim that Roel Punzalan prevented her from entering the room of the deceased is unbelievable. If it was really true that Roel Punzalan blocked her way at the door and ordered her to lie down otherwise she would be killed, accused Marieta could have rushed out of her room and summoned help. Her excuse that she was allegedly paralyzed by her fear is not worthy of credence because of her allegation that from 2:00 a.m. to 6:00 a.m. she was awake lying down on her sleeping mat while the victim was already dead or perhaps bleeding to death. No person who is only three (3) meters away from the body of another, a victim of foul play could have the nerve to stay alone at night for four hours. An innocent person under such circumstances would have not lasted five (5) minutes staying in that room for four (4) hours without doing anything. The fact that accused Marieta was able to show how coldblooded she is and suggested her complicity. She knew Mrs. Lourdes Fule moaned that night and could have reasonably thought that she was hurt and needed help. But when Roel Punzalan and Jose Besida left the victim's room, she did not even bother to check and see why her mistress was moaning so strong enough to have awakened her. Moreover, the fact that she suppressed the information about what happened to her mistress to Nieves Santos and Gregorio Fule was obviously intended to feign innocence. But if she was really innocent and was not a co-conspirator, she could have easily told Nieves Santos and Gregorio Fule what happened to her mistress at the first opportunity. At that particular time Jose Besida and Roel Punzalan were already gone and the members of the Fule family were there to offer her protection. She had nothing to fear from Jose Besida and Roel Punzalan since they were already gone. Instead, she only told Gregorio Fule that "Napasukan tayo ng magnanakaw" when they reported to him about the open front iron gate. If it was also true that while watching TV she saw Jose Besida enter her room leading to the victim's room, her failure to report this to the victim, to Gregorio Fule or others leads one to believe that she was part of the conspiracy and lends support to the existence of a criminal plan. [S]he was not tied or bound by the other two accused, if the accused Marieta was not a conspirator, since she was an eye witness to the heinous crime she could have been killed by the said two accused to eliminate an eye witness. Or, at least they could have tied and gagged her to immobilize her to give them ample time to escape in the darkness of the night. She was not hurt by them. The fact that she was not tied, gagged, hurt or killed by accused Roel Punzalan and Jose Besida militates against her claim of innocence. The room of the victim is such that no one can enter inside without passing through accused Marieta. The victim had jewelries and cash inside her room, for which reason she would not just open her door to anybody especially in the middle of the night. Anyone planning to rob her must contend with the presence of accused Marieta who slept outside the room of the victim. Roel Punzalan and Jose Besida could not have consummated the crime without the involvement and indispensable cooperation of accused Marieta. If she was not involved or a co-conspirator she would have been eliminated first, immobilized or neutralized before the other accused could break-in the door of the victim. It is significant to note that the door of the victim cannot be opened by a false key from the outside. It could only be opened from the inside by releasing or sliding the iron bolt which is installed inside. The fact that the victim's

door was not forcibly opened shows that the victim opened the door herself. The victim would not have opened for accused Roel Punzalan and Jose Besida who were relatively newly hired househelpers. But she would have opened the door for accused Marieta, her sort of nursemaid and security. She could not explain how come Roel Punzalan was found inside the room of the victim in spite of the fact that she, together with the victim, closed and locked all the door prior to retiring to bed. The only persons that night in the house were the victim and accused Marieta. The victim could not have opened the doors leading to her room. The accused Marieta admitted that the victim never allowed any of the househelpers to enter the house at night. Accused Marieta expressed ignorance on how the other accused were able to enter the room of the victim. All these circumstances put together definitely established the guilt of the accused Marieta. Examining the above excerpt, the elements consisting either of affirmative acts or failure to act which led the court to conclude that appellant had acted in concert with Roel Punzalan and Jose Besida, may be summarized as follows: 1. She had participated in the discussion among her husband Domingo Mendoza, Roel Punzalan and Jose Besida in the afternoon before the robbery and the killing, when Domingo Mendoza had declared that the time to carry out their plan had arrived with Judge Fule gone; 2. Marieta had unlocked doors and summoned Roel Punzalan and Jose Besida from the servants' quarters and brought them inside Judge Fule's house an hour or so before the robbery and the killing were committed; 3. Appellant Marieta had, by her own testimony, seen Jose Besida enter her room leading to Mrs. Fule's room while Mrs. Fule and others were watching a video film, but failed to report that fact to Mrs. Fule or to anyone else in the household then watching the video film; 4. After hearing the moaning of Mr. Fule through the open bedroom door and after she was aware that Roel Punzalan and another person had left Mrs. Fule's room in the corridor in which Marieta slept, she, per her own testimony, stayed in the floor for four hours without attempting to find out what had happened to Mrs. Fule and without attempting to awaken Nieves Santos or anybody else and to raise the alarm; 5. Marieta had not been harmed in any way by Roel Punzalan and Jose Besida although she obviously recognized them; they had not even tied or gagged her to prevent her from raising an alarm. We believe that the above multiple factors, when considered together, lead to the conclusion, constituting moral certainty, that appellant Marieta had acted in concert with Roel Punzalan and Jose Besida at least in respect of the robbery. It is possible that the conspiracy did not originally extend to the killing of Mrs. Fule, and that such killing was resorted on the spur of the moment to counter unexpected resistance on the part of Mrs. Fule or to prevent any outcry on her part. The general rule, however, is that where conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all and that the extent of the specific participation of each individual conspirator becomes secondary, each being held liable for the criminal deed(s) executed by another or others. Appellant insists that she was unaware of any plan to rob the victim and that the fact that she did not flee with her co-accused shows that she had not joined the conspiracy. The simple refusal or failure to flee with her co-accused does not, by itself, necessarily imply that she had never conspired to rob the victim. Taking the totality of the evidence presented against appellant Marieta in the light most favorable to her, her failure to flee may be considered as indication that she had been shocked that what had begun as a plan to rob Mrs. Fule of her jewelry and money culminated in her brutal slaying, and that appellant Marieta sought to disavow the conspiracy to rob which she had initially joined. So viewed, the ultimate issue may be seen to be

whether her "disavowal" or disengagement through failure or refusal to flee was sufficient to extinguish or negate criminal liability for the robbery and the killing. We believe and so hold that such "disavowal" through failure to flee was not sufficient to discharge appellant Marieta from liability for the robbery and the killing. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators; he merges his will into the common felonious intent. A person who embraces a criminal conspiracy is properly held to have cast his lot with his fellow conspirators and to have taken his chances that things may go awry and that the offended party may resist or third persons may get killed in the course of implementing the basic criminal design. To free himself from such criminal liability, the law requires some overt act on the part of the conspirator, to seek to prevent commission of the second or related felony or to abandon or dissociate himself from the conspiracy to commit the initial felony. In the instant case, while the failure to flee may perhaps be regarded as a negative overt act, such "disavowal" came too late, having manifested itself after, and not before or during, the consummation of the robbery and the slaying. In legal contemplation, there was no longer a conspiracy to be repudiated nor an unlawful killing which could have been prevented since the conspiracy and the killing had already materialized. The locus penitentiae, i.e., appellant's opportunity to purge herself of criminal liability, had already passed. Appellant insists that her life was threatened by Roel Punzalan who poked into her back what she believed was a sharp instrument, when she discovered the robbery and assault being carried out. She says that that circumstance effectively prevented her from doing anything to forestall or prevent the perpetration of the crime. The difficulty with this defense is not merely that there is nothing to support it except Marieta's own word. That word, when taken in the context of all the other circumstances, especially her failure to raise the alarm long after the doers of the crime had left, is simply insufficient to nullify the prosecution's case. Appellant's word was not believed by the trial judge. Judge Jaramillo, who was presiding when the defense presented its case and who wrote the decision with the benefit of observing her demeanor in court, was unable to accept appellant's statement that she had been coerced into silence by Roel Punzalan. There is no basis in the record for setting aside this conclusion on the part of the trial judge, a conclusion to which we must accord appropriate deference. We turn to the appreciation of the qualifying and aggravating circumstances attending the commission of the crime. Marieta assails the finding by the trial court of the qualifying circumstance of evident premeditation. However, the record shows not only the time when the accused determined or at least last conferred on the commission of the crime, but also acts which manifestly indicated that the appellant and her co-accused had clung to their determination to commit the crime. An interval of seven (7) or eight (8) hours had taken place between the meeting of the coaccused and Marieta's summoning of Roel Punzalan and Jose Besida into the Fule house, an interval of time sufficient to allow appellant and her co-conspirators to reflect upon the consequences of their acts. Nocturnity was correctly appreciated because it was purposely sought by the conspirators to afford impunity and to facilitate both the execution of the crime and their escape. They not only timed the robbery to coincide with the absence of Judge Fule; they also chose to strike late that night to ensure that the victim would be alone in her bedroom and unable to resist or to flee. Abuse of superior strength was similarly correctly appreciated. There was great variance in the relative physical condition of the assailants and of the victim: two adult males as against an old lady suffering from hypertension; the assailants were armed with bladed and blunt instruments while the victim was alone and unarmed and in no position to defend herself; and the great violence inflicted upon the victim, as indicated by the number and location of her wounds, all indicate the presence of the circumstance of abuse of superior strength.

Upon the other hand, disregard of age, rank, or sex was incorrectly appreciated by the trial court. This circumstance was absorbed in abuse of superior strength. Moreover, disregard of age, rank, or sex is relevant only in crimes against persons; the instant case involves robbery with homicide, a felony classified as a crime against property, the homicide being regarded as incidental to the robbery. Dwelling should also have been disregarded because the accused (except Domingo Mendoza) all resided in the servants' quarter of Mrs. Fule's residence. The servants' quarter may be assimilated to the victim's house, the former being an appendage of, or attachment to, the latter. Under Article 294 of the Revised Penal Code, any person guilty of robbery with the use of violence against or intimidation of persons shall suffer the penalty of reclusion perpetua to death when, by reason or on the occasion of the robbery, the crime of homicide shall have been committed. Article 63 paragraph 2 of the same Code provides, among other things, that when there is at least one aggravating circumstance attending the commission of the crime, the imposable penalty is death. Since death is not an enforceable penalty under our Constitution, the appropriate penalty is reclusion perpetua. WHEREFORE, the decision of the trial court dated 22 May 1987 is hereby AFFIRMED, except that the civil indemnity for the victim's death is hereby increased to P50,000.00 in line with recent jurisprudence of the Court. Digest: PEOPLE vs. ROEL PUNZALAN, ET. AL., G.R. No. 78853 November 8, 1991 Facts: Appellant Marietta was employed by the Fules as a house-help. She served as personal nursemaid to the mistress of the house and the victim, Mrs. Fule. Accused Roel Punzalan and Jose Vecidor were employed as house-boys. In July 9, 1985, accused Domingo Mendoza, husband of appellant Marietta, stayed in the servants quarters of the Fule house and was seen to have been in close secretive conversation with the rest of the accused. At 4pm, Judge Fule left his house for Manila and with that, the accused were heard to have decided to effect their plan on the same day. At around 11:30 pm, Mrs. Fule and accused Marietta locked up all the doors of the house with all the servants, other than Marietta, asked to leave the house and stay at their quarters. At around 12:30 am, Marietta was alleged to have called the 2 accused house boys and let them inside the house. Accused Marietta was alleged to have knocked on the victims bedroom door on some pretext so that the victim will open her door, which was locked on the inside. When victim opened her door, the houseboys rushed inside her room, gagged her and stabbed her multiple times. She was left bleeding on her bed while the houseboys ransacked her drawers for cash and jewelry. At this time, accused Marietta did not help the victim nor prevent the killing of the victim. Accused Domingo waited in the parked jeep outside the Fules house as a means of escape. At 6am, accused Marietta woke up another houseboy, Murillo, and Nieves Santos, witness, without telling them about anything unusual that happened the previous night. When the houseboy Murillo was cleaning the Fule compound, he noticed that the front gate of the compound was open. He reported this to accused Marietta and Santos, and the three then reported such to Gregorio Fule, the son of the victim. Accused Marietta then mentioned that they were robbed the previous night. Houseboy Murillo was asked to fetch the police. Subsequently, the son Fule found the bloody clothes used by the accused and other items which led him to the room of his mother, which he saw bloody and dead. The son confronted accused Marietta as to what happened but she responded that she knew nothing as she was asleep the whole time. Issue: Was appellant Marietta guilty of robbery with homicide for having conspired with the other accused? Held: Yes. Based on the following, Marietta was deemed to have acted in concert with the rest of the accused in the robbery, which eventually led to murder:

1. She had participated in the discussion among her husband Domingo Mendoza, Roel Punzalan and Jose Besida in the afternoon before the robbery and the killing, when Domingo Mendoza had declared that the time to carry out their plan had arrived with Judge Fule gone; 2. Marieta had unlocked doors and summoned Roel Punzalan and Jose Besida from the servants' quarters and brought them inside Judge Fule's house an hour or so before the robbery and the killing were committed; 3. Appellant Marieta had, by her own testimony, seen Jose Besida enter her room leading to Mrs. Fule's room while Mrs. Fule and others were watching a video film, but failed to report that fact to Mrs. Fule or to anyone else in the household then watching the video film; 4. After hearing the moaning of Mrs. Fule through the open bedroom door and after she was aware that Roel Punzalan and another person had left Mrs. Fule's room in the corridor in which Marieta slept, she, per her own testimony, stayed in the floor for four hours without attempting to find out what had happened to Mrs. Fule and without attempting to awaken Nieves Santos or anybody else and to raise the alarm; 5. Marieta had not been harmed in any way by Roel Punzalan and Jose Besida although she obviously recognized them; they had not even tied or gagged her to prevent her from raising an alarm. PEOPLE vs. RICARDO ALCORIZA LASCUNA (G.R. No. 90626 August 18, 1993) Accused Ricardo Alcoriza Lascuna, Rosita Dionisio Villena, Celso Cano Algoba and Placido Aquilino Palangoy 1were charged on 16 January 1989 with robbery with homicide, rape and physical injuries before the Regional Trial Court (RTC) of Malolos, Bulacan in an information 2 with the following accusatory portion: That on or about the 16th day of October, 1988, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with Danilo Lagasca who is still at large and against whom the preliminary investigation has not yet been completed by the Municipal Trial Court of Malolos, conspiring and confederating together and helping one another, with intent of (sic) gain and by means of force and intimidation, did then and there wilfully, unlawfully and feloniously take, rob and carry away with them toys, cash, assorted clothes, wrist watches and valuable documents worth P4,900.00 all belonging to Luisa A. Villena, to the damage and prejudice of the said Luisa A. Villena in the total amount of P4,900.00; that by reason or on the occasion of the said robbery, the above-named accused, with Danilo Lagasca who is still at large as aforesaid, in furtherance of their conspiracy, did then and there wilfully, unlawfully and feloniously with intent to kill one Honesto Altiche, attack, assault and strangle the said Honesto Altiche, thereby resulting to his death; did then and there wilfully, unlawfully and feloniously, with force and intimidation and with lewd designs, have carnal knowledge of Luisa A. Villena against her will; did then and there wilfully, unlawfully and feloniously attack, assault and strangle the said Luisa A. Villena, inflicting on her slight physical injuries which required medical attendance and incapacitated her from, performing her customary labor for a period of nine (9) days. Each of the four accused pleaded not guilty upon being arraigned on 1 February 1989. On 10 February 1989, the trial court directed the assistant public prosecutor to amend the information by including Danilo Lagasca as co-accused. 4 On 17 March 1989, after the principal prosecution witness, Luisa Villena y Altiche, had completed her testimony on direct examination, accused Ricardo Lascuna and Celso Algoba sought leave of court to change their not guilty plea to guilty. The trial court granted the request, re-arraigned them and issued an order 5 the dispositive portion of which reads:

WHEREFORE, judgment, of conviction is imposed upon the accused Ricardo Alcoriza Lascuna and Celso Cano Algoba by (sic) proof beyond reasonable doubt are found guilty and they are sentenced to a straight penalty of 12 years and 1 day to 20 years. Thereupon, trial proceeded against accused Rosita Villena and Placido Palangoy. Aside from Luisa Villena y Altiche, the other witnesses presented by the prosecution were Patrolmen Felicito de Belen, Oscar Enriquez and Jose Marcelino, Jr. of the Integrated National Police (INP) of Malolos, Bulacan, Dr. Juanito Sacdalan, Dr. Rolando Victoria, Dr. Isadora Gatbonton and Eduardo Vinuya, a neighbor of the victims. The defense, on the other hand, presented Celso Algoba who was by then already serving sentence, Rosita Villena and Placido Palangoy. Accused Ricardo Lascuna, who was likewise serving sentence, was subpoenaed but failed to appear. Apparently, on 26 July 1989, he escaped from detention. 6 The prosecution's evidence establishes the following facts: Luisa Villena y Altiche, together with her eight-month-old daughter and brother Honesto Altiche, was in her house at Bgy. Cofradia, Malolos, Bulacan on the night of 16 October 1988. Honesto was staying with her since her husband was working abroad. While both Honesto and Luisa were watching a television show at around 7:00 o'clock, the latter's sister-in-law, Rosita Villena, knocked on the door of the house. When Luisa opened the door, Rosita came in with her daughter and four strangers, three of whom the former later identified in court as the accused Celso Algoba, Ricardo Lascuna and Placido Palangoy. The fourth person, identified as Danilo Lagasca, was not present in court. Ricardo Lascuna and Danilo Lagasca were both carrying knives which they poked at Luisa and Honesto while, Celso Algoba and Placido Palangoy started ransacking the house. Luisa and her brother were then gagged and their hands and feet were tied. 7 Both were herded inside the bedroom where Luisa was raped by Ricardo Lascuna while Honesto was asked to turn his back. Thereafter, Luisa was dragged into the kitchen 8 where she heard her brother, who was still inside the bedroom with Danilo Lagasca and Ricardo Lascuna, start moaning. She then lost consciousness and was left for dead after being strangled with pieces of cloth. Before this, however, Luisa noticed that Rosita Villena was the person giving out instructions to her co-accused. Luisa claims that she was able to recognize the persons who entered her house since they stayed there from 7:00 o'clock in the evening of 16 October 1998 up to 2:00 o'clock in the morning of the following day. Based on what she heard from them, it appears that the accused could not leave earlier because of a checkpoint in the area. It was only after regaining consciousness at around 3:00 o'clock that same morning that Luisa was able to free herself. Upon doing so, she proceeded to the bedroom where she found her brother who was already dead. She also discovered that an instamatic camera, a man's gold ring, a gold wrist watch, assorted clothes, a ladies' gold ring, P400.00 in cash and a pair of toy walkie-talkies were missing. All told, her loss amounted to P4,900.00. 9Luisa then sought the help of a neighbor, Eduardo Vinuya. Vinuya brought her to his house and, together with his cousin and nephew, later proceeded to her house; upon reaching the house, they discovered its kitchen and living room in disarray. Inside the bedroom, they found the body of Honesto with an electric cord tied around his neck. They immediately reported the crime to the barangay captain of Cofradia and the police authorities. 10 As a result thereof, a police team was dispatched to the scene of the crime. At around 6:00 o'clock that same morning, Luisa Villena was questioned in the police station where she revealed that one of the persons who entered her house was her sister-in-law, Rosita Villena. A police team was thus dispatched to apprehend the latter in Bgy. Ibayo, Marilao, Bulacan. While being ferried to the station in the police car, Rosita, when asked who her companions were, implicated Celso Algoba her live-in partner a certain Dong, Placido (Palangoy) and Danny (Danilo Lagasca). She then led the policemen to the latter's respective houses. With the exception of Danilo Lagasca who was able to escape, the other accused were apprehended and brought to the police station where they were identified by Luisa. 11 At the station,

accused Palangoy was wearing a polo shirt and a pair of pants (Exhibits "F-2" and "F3") which were among the items taken from Luisa's house. Pat. Jose Marcelino, Jr., a member of the team dispatched to the crime scene, prepared a sketch of the house where the crime was committed. He likewise stated that the house was in disarray when he entered it and that the body of Luisa's brother was inside the bedroom with its hands bound together by an electric cord; an electric, cord was also coiled around its neck. For her part, accused Rosita Villena admitted participating in the commission of the crime but such admission was not reduced to writing. 13 The autopsy, of Honesto Altiche's body, conducted by Dr. Juanito Sacdalan, Municipal Health Officer of Malolos, Bulacan, revealed that there were marks on the neck and wrists of the victim. Honesto's death was attributed to "[A]spyxia (sic) due to occluded trachea and esophagus" and the breaking of the trachea as a result of strangulation. 14 On the other hand, Dr. Rolando, Victoria found abrasions in the neck of Luisa Villena 15 while Dr. Isadora Gatbonton's internal examination revealed "a normal looking external genitalia; labia minora and majora; clitoris were all intact with superficial abrasion 0-3 cm. over the posterior fourchette; negative bleeding; . . . nagative (sic) tenderness, negative abnormal discharge (sic); . . . negative spermatozoa." 16 Dr. Gatbonton declared that the superficial abrasion "could possibly be secondary to irritation wherein a patient has a tendency to scratching (sic) so that abrasion is brought about and another possible cause is violent (sic) attempt of penetration or insertion of any object." 17 Testifying for the defense, Celso Algoba admitted that he robbed Luisa Villena's house on 16 October 1989 together with Ricardo Lascuna, Danilo Lagasca and another person whose name he does not know. Celso, however, denied that Rosita Villenahis live-in partnerand accused Placido Palangoy were with them at the time. According to him, Rosita was in their apartment in Marilao, Bulacan at the time of the commission of the crime. While claiming to have no knowledge of Luisa's rape, Algoba declared that Ricardo Lascuna and Danilo Lagasca strangled the latter and killed Honesto Altiche. When presented with an item recovered from Placido Palangoy, Algoba stated that he sold the same to the latter for P60.00. 18 For her part, Rosita Villena denied any participation in the crime. She testified that she was at home with her daughter on the night of 16 October 1988 and that when she woke up at 7:00 o'clock the next morning, some, policemen arrived, searched their things and took the toy walkie-talkies from them. She averred that it was Celso who brought the said toy walkie-talkies home and recounted to her the robbery staged in the house of Luisa Villena. Although she wanted to report the matter to the authorities, Rosita desisted because Celso threatened her. 19 Placido Palangoy also denied participating in the commission of the crime. He claimed that on the night of 16 October 1988, he was washing his child's diapers upon orders of his wife. After doing so, he went to sleep. The next morning, after hanging the diapers out to dry and taking a bath, he was approached by a stranger who sold him clothes for P60.00. A few moments later, the same stranger returned to Palangoy's house with some policemen. Palangoy was thereupon brought to the police station with three other men; in the station, they were confronted by a lady who declared that they were the persons who robbed her house. 20 On 21 August 1989, immediately after accused Rosita Villena and Placido Palangoy had finished testifying and the prosecution had announced that it had no rebuttal evidence to present, the trial judge declared: COURT: Promulgation of Judgment. By proof beyond reasonable doubt, the Court finds both accused, Rosita Villena and Placido Palangoy guilty of the crime of Robbery with Homicide, Rape and Serious Physical Injuries covered by Art. 48 of the Revised Penal Code and applying Art. 294

paragraphs 1 and 2. They are sentenced to suffer life imprisonment, reclusion perpetua and to indemnify the family of the deceased Honesto Altiche the amount of P30,000.00. Thereafter, the trial court promulgated a 10-page decision, 22 the dispositive portion of which reads as follows: WHEREFORE, the Court finds accused Rosita Dionisio Villena and Placido Aquino Palanggoy guilty beyond reasonable doubt of the crime charged in the Information and hereby sentences each of them to suffer life imprisonment (reclusion perpetua) in accordance with Art. 294, pars. 1 and 2, and to indemnify the family of the deceased the amount of P30,000.00 each. Accused Rosita Villena and Placido Palangoy filed their notice of appeal on 23 August 1989. 23 The records of the case were, however, erroneously forwarded to the Court of Appeals which, upon orders of the Presiding Justice thereof, properly transmitted the same to this Court on 30 October 1989. 24 We accepted the appeal on 29 May 1991. 25 On 16 March 1992, accused-appellant Rosita Villena filed a motion to withdraw her appeal 26 which this Court granted on 3 March 1991. 27 In view thereof, this decision concerns only the accused Placido Palangoy, hereinafter referred to as the Appellant. In his Brief, the appellant avers that the RTC erred: 1.1 . . . IN GIVING WEIGHT TO THE ACCUSED'S ALLEGED ADMISSION OF GUILT 1.2 . . . IN HOLDING AGAINST APPELLANT PLACIDO PALANGGOY THAT HE WAS WEARING THE PANTS AND SHIRT TAKEN FROM THE VILLENA HOUSEHOLD AT THE TIME OF (HIS) APPREHENSION 1.3 . . . IN NOT GIVING WEIGHT TO PLACIDO PALANGGOY'S DEFENSE OF ALIBI 1.4 . . . IN FINDING THAT RAPE WAS COMMITTED AGAINST LUISA VILLENA 1.5 . . . IN HOLDING AS AGAINST ACCUSED-APPELLANT PALANGGOY THAT THE HOMICIDE AND RAPE WAS (sic) PART OF THE CONSPIRACY 1.6 . . . IN NOT APPLYING ARTICLE 13, PAR. 3 OR 10 (OF THE REVISED PENAL CODE) AS MITIGATING CIRCUMSTANCE (sic) FOR ACCUSED-APPELLANT 1.7 . . . THE REGIONAL TRIAL COURT DEPRIVED APPELLANT HIS (sic) RIGHT TO PROCEDURAL DUE PROCESS BY DISPLAYING MANIFEST BIAS AGAINST ACCUSED AND PREJUDGING THE CASE. Subject to the observations and modifications hereinafter indicated, we are left with no choice but to affirm the judgment of conviction. The first assigned error results from a misreading of the challenged decision for as correctly contended by the appellee, the appellant's conviction is not based on the admissions of the accused Rosita Villena. It appears that the appellant's conclusion proceeds from the trial court's summary of the testimonies of the prosecution witnesses found under the sub-heading PROSECUTION'S EVIDENCE. It is to be observed that the court's own findings of fact, capsulized under the sub-heading FINDINGS AND FACTS, do not even make any reference to any admission made by the appellant. At the bottom of the second imputed error lies the issue of the sufficiency of the appellant's explanation of his possession of the pair of "maong" pants and polo shirt which were among the personal items taken from Luisa Villena's house on the night of the incident. The appellant claims to have purchased the same from Celso Algoba in the morning of 17 October 1988 while he (appellant) was drying his child's diapers. We are not persuaded at all by this concocted story. At the police station's

information section where he was seen by Luisa Villena wearing the said items of clothing, the appellant did not even volunteer the information that Celso had sold the clothes to him. The latter only offered his explanation when he testified in court. As hereinafter discussed, he was positively identified by Luisa Villena as one of the perpetrators of the robbery. Thus, he miserably failed to overcome the presumption that a person found to be in possession of the effects belonging to a person robbed and killed is considered the author of the aggression, death of the person and the robbery committed. 28 In his third assigned error, the appellant faults the trial court for not giving due weight to his alibi and contends that he was not positively and clearly identified as one of the perpetrators of the crime; he avers that Luisa Villena did not single him out from a police line-up. Moreover, he claims that Luisa Villena did not know, with the exception of Rosita Villena her sister-in-law, any of the accused before they were presented to her. Again, we are not persuaded. In the first place, while it is true that Rosita was the only person whom Luisa knew by name, it does not necessarily follow that the latter could not identify the rest of the accused. In fact, Luisa did Just that at the police station and in court during trial. Secondly, it was Rosita Villena who revealed the identities of her co-accused and even led the police team to the latter's houses where they, with the exception of Danilo Lagasca, were apprehended. There is no doubt in our minds that Luisa Villena was able to positively identify the appellant when he was inside her house since he and his co-accused stayed there from 7:00 o'clock in the evening of 16 October 1988 to 2:00 o'clock in the morning of the following day. In fact, she remembered the appellant very well because while the latter was inside the house, he changed into the very pair of maong pants and polo shirt which he was wearing when apprehended. 29 It is a fundamental juridical dictum that the defense of alibi cannot prevail over the positive identification of the accused. 30 Appellant's arguments in support of his fourth assigned error are no more persuasive than those invoked to buttress the earlier errors. We cannot agree with his proposition that the evidence presented does not support the trial court's conclusion that rape was committed. According to him, the details of the alleged sexual assault were applied only through the leading and misleading questions propounded by the court to the witnesses. Dr. Victoria, the physician who examined Luisa in the morning after the incident, testified that the latter did not complain to him that she had been raped; on the other hand, Dr. Gatbonton, the obstetrician who examined Luisa in the afternoon, could not say whether the latter was raped or not. Hence, the appellant concludes that any doubt should be resolved in his favor. Luisa Villena satisfactorily explained that she did not initially report the rape committed against her because she was ashamed to admit it. 31 When she testified in open court, however, she did not waver in her account of the assault on her. In fact, the overzealous defense counsel elicited, during cross-examination, further details on how the despicable deed was consummated: ATTY. DELA CRUZ: Q How can the accused Lascuna be able to rape you when you said that your brother was beside you and your child who may be one year old beside (sic) you? A What can my brother do, he was tied up? ATTY. DELA CRUZ: Q Assuming that your brother did not do anything but your child is beside you, is it not? A Ricardo Lascuna made me lie down and he was thrusting the knife on my neck, sir. Q And you did not struggle, is it not? A I was struggling, sir, but what can I do I am just a woman and I have a weaker strength (sic).32 It is settled that when a woman says that she had been raped, she says in effect all that is necessary to show that she had indeed been raped, and if her testimony meets

the test of credibility, the accused may be convicted on the basis of the victims testimony. 33 There is no reason for Luisa Villena to claim that she had been raped if it was not true. Considering a Filipina's inbred modesty and antipathy in airing publicly things that affect her honor, it is hard to conceive that Luisa would undergo the expense, trouble and inconvenience of a public trial, suffer the scandal, embarrassment and humiliation such action would indubitably invite and allow the examination of her private part if she had not been raped and her motive was other than to bring to justice the person who committed the crime. 34 While it is true that the examining obstetrician declared that she was not sure whether Luisa had actually been raped, the former nevertheless admitted that it was possible that she was. And even if the trial court had indeed asked "leading and misleading questions," it is now too late for the appellant to raise his objection thereto in this appeal. His counsel should have interposed the appropriate objections to such questions at the time they were asked. In support of his fifth assigned error, the appellant contends that granting, arguendo, that he was indeed one of the malefactors, the trial court nonetheless erred in finding him guilty of rape and homicide since no evidence was presented to show his participation in or knowledge of the commission thereof. He adds that the doctrine in this jurisdiction that when the homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide, unless proof is presented that the accused tried to prevent the killing should not be applied to him since he could not have prevented someone from doing something which he (appellant) was not even aware of in the first place. Such reasoning is terribly flawed. The general rule is that whenever a homicide is committed as a consequence, or on occasion of a robbery, all those who took part therein are liable as principals of the crime of robbery with homicide, although some did not actually take part in the homicide. 35 Besides, it is difficult to believe that the appellant was not aware of the killing of Honesto Altiche. Luisa Villena's house was not large enough to allow any of the accused to have his privacy as the same is a mere one bedroom affair, with a sala and kitchen which have no partitions at all. 36 During the seven hours that they were inside Luisa's house, each of them had access to all the areas therein. When Honesto was killed, the bedroom door was even ajar. 37 It is likewise not believable that the appellant did not know that Luisa was also strangled because this was done in the kitchen. For his sixth ascribed error, the appellant would have us credit him with the mitigating circumstances described under either paragraph 3 or 10, Article 13 of the Revised Penal Code, 38 he asseverates that if such circumstances are not appreciated in his favor, an injustice would result since a light sentence was meted out to Ricardo Lascuna, Luisa's actual rapist. Paragraph 3, Article 13 of the Revised Penal Code addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act, and not to his intention during the planning stage. 39 Thus, while it may be argued that the agreement was only to rob the victims, the perpetrators' acts at the time of the incident show that the conspiracy not only contemplated the commission of the robbery, but also the elimination of any witnesses to the crime. Therefore, the mitigating circumstance of lack of intention to commit so grave a wrong cannot be appreciated in favor of the appellant. Besides, conspiracy having been proven in this case, the act of one is the act of all. Corollarily, the circumstance of "analogous circumstances" cannot find application in the instant case. We find, however, the straight penalty of 12 years and 1 day to 20 years imposed on Ricardo Lascuna and Celso Algoba after they had changed their plea from not guilty to guilty, to be erroneous. The penalty for robbery with homicide under the first paragraph of Article 294 of the Revised Penal Code is reclusion perpetua to death.

Since, as hereinafter discussed, the rape committed against Luisa aggravated the crime, the imposable penalty would have been death had its imposition not been prohibited by Section 19(1), Article III of the 1987 Constitution. Accordingly, the penalty that should have been imposed upon them is reclusion perpetua. Additionally, both should have been made civilly liable for their acts. While we are not concerned here with accused Lascuna and Algoba as the judgment against them has become final by their service of sentence, the trial court's mistake in imposing the said penalty on the two cannot now benefit the appellant. Finally, we find ourselves unable to accommodate the appellant in his last assigned error. He claims that he was denied due process because the trial judge displayed manifest bias and prejudice against him by asking questions which led witnesses to a preconceived notion of what the facts are, and of promulgating a judgment "right in the hearing when the defense presented its case and within seconds after both sides rested their cases. 40 While the trial court's decision leaves much to be desired, we cannot agree with the appellant's sweeping conclusion. The questions propounded by the trial judge merely sought to clarify important matters. Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling the attention of such counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks by witnesses and so on. 41 It is true that as earlier adverted to, the trial court orally "promulgated" its judgment by dictating the same to the stenographer on 21 August 1989 after the completion of the testimonies of both Rosita Villena and the appellant and the prosecutor's manifestation that no rebuttal evidence was to be presented. Thus: COURT: Promulgation of Judgment. By proof beyond reasonable doubt, the Court finds both accused, Rosita Villena and Placido Palanggoy guilty of the crime of Robbery with Homicide, Rape and Serious Physical Injuries covered by Art. 48 of the Revised Penal Code and applying Art. 294 paragraphs 1 and 2. They are sentenced to suffer life imprisonment, reclusion perpetua and to indemnify the family of the deceased Honesto Altiche the amount of P30,000.00. 42 Such behavior does not manifest bias or prejudice per se for in view of the fact that the parties did not opt to submit their respective memoranda, the court forthwith considered the case submitted for decision. A trial judge who has painstakingly listened to the testimonies of the witnesses, taken notes of such testimonies and meticulously observed the latter's deportment and manner of testifying may logically be presumed to have properly made up his mind on what the decision should be. What may therefore remain for him is the actual writing of the decision. Judges are not required to await the transcription of the stenographic notes before they can render their decisions; 43 if this were so, there would be undue delays in the criminal justice system with judges easily finding justification for failing to comply with the mandatory period to decide cases. Hence, the promulgation of judgment by a Judge who, on the same hour, had first considered the case submitted for his decision, does not ipso facto warrant a presumption of bias. This is true in the instant case where our own review of the evidence sustains beyond reasonable doubt the judgment of conviction. It must, however, be stressed here that the "verbal" judgment promulgated by the trial court was incomplete as it does not contain findings of fact and is not signed by the Judge. The Constitution provides that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. 44 In criminal cases, Section 2, Rule 120 of the Rules of Court requires that a "judgment must be written in the official language, personally and directly prepared

by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based." Be that as it may, the infirmity was corrected by the trial court itself when it subsequently issued a full-blown Judgment dated 21 August 1989 which contains a summary of the evidence for the parties, findings of fact and the signature of the Judge. The records do not, however, yield any proof that this full-blown Judgment was promulgated. Such a promulgation was necessary considering that the sentence dictated by the trial judge on 21 August 1989 is not similar in all respects to the dispositive portion of the full-blown decision. In view of the fact that in the Notice of Appeal, the appellant explicitly refers to the Judgment dated 21 August, 1989, it is logical to presume that the same was properly promulgated. In any event, we take this opportunity to advise Judges to strictly comply with the rules on the form of judgments and their rendition. We agree with the Solicitor General's observation that the crime committed was erroneously designated as robbery with homicide, rape and physical injuries, The proper designation is robbery with homicide aggravated by rape. When rape and homicide co-exist in the commission of robbery, it is the first paragraph of Article 294 of the Revised Penal Code which applies, the rape to be considered as an aggravating circumstance. 45 The physical injuries inflicted on Luisa Villena and the killing of Honesto Villena should be merged in the composite, integrated whole that is, robbery with homicide it being clear that both the killing and physical injuries were perpetrated with the end in view of removing all opposition to the robbery, suppressing the relevant evidence or both. 46 Once again, we note in this case the imposition by a trial judge of the penalty of "life imprisonment (reclusion perpetua)" in a manner that would make the former seem equivalent to or synonymous with the latter. Not only have we repeated in a number of cases that the two penalties are not synonymous, we have likewise advised Judges to apply the appropriate penalty and even warned them against lapsing into the same error. 47 All trial judges should seriously take heed of our pronouncement on this matter. We also observe that the trial court failed to order the accused to pay the offended party actual damages in the amount of P4,900.00 representing the cash and the value of the articles taken by them. Finally, conformably with the current policy of this Court, moral damages in the amount of P40,000.00 should be awarded to the rape victim, Luisa Villena y Altiche while the indemnity for the death of Honesto Altiche should be increased to P50,000.00. WHEREFORE, the challenged decision of Branch 15 of the Regional Trial Court of Bulacan in Criminal Case No. 105-M-89 is AFFIRMED subject to the above modifications. As modified, Appellant PLACIDO AQUINO PALANGOY (or PALANGGOY) is hereby found guilty beyond reasonable doubt, as principal, of the special complex crime of robbery with homicide aggravated by rape under the first paragraph of Article 294 of the Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua, with all its accessories, indemnify the heirs of Honesto Altiche in the amount of P50,000.00 and pay Luisa Villena y Altiche the sums of P4,900.00 as actual damages and P40,000.00 as moral damages. PECHO vs. SANDIGANBAYAN (G.R. No. 111399 November 14, 1994) Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, punishable? If it is not, may an accused be, nevertheless, convicted for an offense penalized by the Revised Penal Code which is included in that of the former as charged?

These are the core issues in this case. The first was resolved in the affirmative by the Sandiganbayan. The petitioner and the Office of the Solicitor General disagree. The second is an outcrop of the first. In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose Catre were charged in an information 2 with the violation of Section 3(e) of R.A. No. 3019, as amended, allegedly committed as follows: That on or about March 16, 1989 and/or sometime prior thereto at Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused ODON PECHO, a public officer being then the Customs Guard, Miscellaneous Bonded Warehouse Division, Bureau of Customs, South Harbor, Manila, with the indispensable cooperation and assistance of the accused JOSE CATRE, whose position, whether public or private, and address are unknown but representing himself to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm or partnership which turned-out to be non-existent, fake or fictitious as it is not registered in the Department of Trade and Industry nor in the Securities and Exchange Commission and with a fake, spurious or fictitious Tax Account No. as it was not issued by the Revenue Information Systems, Inc., Bureau of Internal Revenue, acting in the capacities aforesaid, with the former taking advantage of his official position and both accused, motivated and impelled by personal gain, financial and pecuniary interest, with deliberate intent to cause damage and undue injury to the Government, through manifest partiality and evident bad faith, conspiring, confabulating, conniving, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously act, pretend and feign to be agents or representatives of Eversun Commercial Trading in the importation of 5 x 20 foot containers STC agricultural disc blades and irrigation water pumps, and engage, solicit and contract the services of one Constantino Calica of Labatique, a CPA Customs Broker for the release of said shipment and/or preparation of the necessary import entry with the two (2) accused, furnishing, presenting and producing the necessary shipping documents such as packing list, commercial invoice, bill of lading and import entry declaration, which led and prompted said Customs Broker to file BOC Import Entry No. 14081-89 with the computed taxes and duties amounting to P53,164.00 declaring the shipment as five (5) containers STC agricultural disc blades and irrigation water pumps, more particularly described as follows: 5 CONTAINERS STC: 200 pcs. Agricultural Disc Blades 24 inches in diameter 100 pcs. Agricultural Disc Blades 30 inches in diameter 50 sets Centrifugal Water Pump 5 HP 25 sets Centrifugal Water Pump Diesel Engine 10 H.P. 100 sets Centrifugal Water Pump Diesel engine 25 H.P. but contrary to the entry declaration, the subject shipment before its release, upon examination was found and/or discovered to contain 300 units diesel engines Model 4DR50A, to wit, viz.: 1. Contr. No. EKLU-2673966 20' containing 60 pcs./units 4DR50A diesel engines 2. Contr. No. ITLU-6078177 20' containing 60 pcs./units 4DR50A diesel engines 3. Contr. No. UFCO-3976925 20' containing 60 pcs./units 4DR50A diesel engines 4. Contr. No. KLTU-1010988 20' containing 60 pcs./units 4DR50A diesel engines 5. Contr. No. KXTU-2027369 20' containing 60 pcs./units 4DR50A diesel engines and the correct taxes and duties is P1,080,485.00, to the damage and prejudice of the government in the difference of said amounts or to be exact in the amount of P1,027,321.00, said offense having been committed in relation to the office of the above-named accused. CONTRARY TO LAW. The investigating prosecutor 3 made the following certification in the information:

This is to certify that a preliminary investigation has been conducted in this case; that there is a reasonable ground to engender a well-founded belief that a crime has been committed and that the accused are probably guilty thereof. 4 Warrants for the arrest of the accused were issued. Only the petitioner was brought under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15 March 1991. He posted bail. 5 After the petitioner had pleaded not guilty at his arraignment on 20 March 1991, 6 trial on the merits as against him ensued. In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second Division) found the petitioner guilty as charged and, applying the Indeterminate Sentence Law, sentenced him "to suffer imprisonment for an indeterminate period of Six (6) years and One (1) month as minimum penalty, to Ten (10) years and One (1) day, as maximum penalty, with perpetual disqualification to hold public office; and to pay the Bureau of Customs, by way of civil liability, the sum of P1,027,321.00 and to pay the costs." 8 The petitioner's motion for reconsideration based on the following grounds, to wit: (1) Invalidity of the information as a consequence of non-compliance with the mandatory provisions of Sections 3 and 4, Rule 112, 9 Rules of Court, and of Sections 6 and 7, Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07); (2) Failure of the prosecution to overcome by proof beyond reasonable doubt the presumption of innocence in favor of accused Odon Pecho; (3) Failure of the prosecution to establish the attendance of the concurring essential elements of the crime charged; and (4) There is no such crime as attempted violation of Section 3(e), RA 3019. 10 having been denied in the resolution of the Sandiganbayan of 12 August 1993, 11 he now comes before us with a reiteration of the said grounds. In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of time to file its Comment, or for a total of one hundred and fifty days, the Office of the Solicitor General submits that there is no merit to the petitioner's claim that the information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the Rules of Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman (Administrative Order No. 07), but agrees with the petitioner that the prosecution failed to prove the elements of the crime charged and the consummation thereof, and, hence, he should be acquitted. However, it recommends that the petitioner be charged administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known as the Civil Service Decree of the Philippines. In the challenged resolution, the Sandiganbayan rejected the first ground invoked by the petitioner in his motion for reconsideration because of waiver, having voluntarily entered his plea of not guilty, participated at the trial, and offered his evidence. As to the second and third grounds, it ruled that the decision "is supported with proof beyond reasonable doubt." And as to the fourth ground, it held that the provisions of the Revised Penal Code on attempted or frustrated felonies do not apply to offenses penalized by special laws, like the Anti-Graft and Corrupt Practices Act; hence: violation of Section 3(e) of RA 3019 is always consummated irrespective of whether or not the accused has achieved his purpose. The accused's argument that he did not realize his purpose of depriving the government in the form of customs tax and duties is of no moment. It is enough that the accused committed an act that would cause undue injury to the government to make him liable. 13 We agree with the respondent Sandiganbayan and the Office of the Solicitor General that, indeed, the procedural issue raised is without merit. Firstly, the certification of the investigating Prosecutor in the information is sufficient. His failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence, which the petitioner claims is fatal because it is mandatorily required by

Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor stated under oath that, inter alia, "a preliminary investigation has been conducted in this case," he gave the solemn assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The certification in question is similarly worded as that involved in Alvizo vs. Sandiganbayan 14which this Court explicitly declared to be sufficient. This Court also reiterated therein the doctrine laid down in People vs. Marquez 15 that the absence of a certification as to the holding of a preliminary investigation does not invalidate an information because such certification is not an essential part of the information itself. In Marquez, this Court held: It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that "no information . . . shall be filed, without first giving the accused a chance to be heard in a preliminary investigation," but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. If the absence of a certification would not even invalidate the information, then its presence, although deficient because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former. The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right prior to or at least at the time of the accused's plea. 16 Where the accused pleaded to the charge, he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it.17 The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 18 Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. The presumption of regularity in the performance of official duty 19 on the part of the investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse resolution pursuant to Section 6 which reads: Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman. does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the information is based was not served upon the respondent. The contention that the provision is mandatory in order to allow the respondent to avail of the 15-day period to file a motion for reconsideration or reinvestigation is not persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed and acted upon by the Ombudsman if so directed by the court where the information was filed. Finally, just as in the case of lack of or irregularity in the conduct of the preliminary investigation, a party, like the petitioner herein, should have seasonably questioned the procedural error at any time before he entered his plea to the charge. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. We shall now direct our attention to the core issue in this case, viz., whether the attempted or frustrated stage of the crime defined in Section 3(e) of R.A. No. 3019 is punishable. From the facts proved by the prosecution, the plan of the petitioner and

his co-conspirators to defraud the government was foiled. The Sandiganbayan stated: However, the felonious plan of the two accused to defraud the government was exposed and foiled through the combined efforts of the employees of the Bureau of Customs. A spot check on the shipment was conducted on March 9, 1989 by the Customs Senior Agent Ruperto Santiago. They discovered that the contents are automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration (Exh. A-6) filed with the Bureau of Customs, more particularly as follows: On March 30, 1989, a random computation was made by Customs Appraiser Mamerto Fernandez based on the information provided by the Legal Division and he found out that a discrepancy exists in the total amount of taxes equivalent to P1,627,321.00 20 (Exh. E). Consequently, a hold order and also a warrant of seizure and detention were issued by the District Collector of Customs covering said goods. 21 The evidence for the prosecution, as summarized in the challenged decision 22 and in the Manifestation of the Office of the Solicitor General, 23 established beyond doubt how the petitioner and his co-accused, Jose Catre, carried out their plan to defraud the Government. The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre and the petitioner, then a Customs Guard of the Bureau of Customs assigned at the Miscellaneous Bonded Warehouse Division, South Harbor, Manila, went to the office of Constantino Calica, a certified public accountant and a customs broker, at Magallanes Street, Intramuros, Manila. They introduced themselves to Calica as the duly authorized representatives of Eversun Commercial Trading, and then engaged him, for an amount equal to fifty percent (50%) of the authorized brokerage fee, to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"), the commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"), and the sworn import entry declaration (Exhibit "A-6"). The shipment was declared as agricultural disc blades and irrigation water pumps more particularly described as follows: 200 pcs. Agricultural Disc Blades 24 inches in diameter 100 pcs. Agricultural Disc Blades 30 inches in diameter 50 sets Centrifugal Water Pump Diesel engine 5 HP 25 sets Centrifugal Water Pump Diesel engine 10 HP 100 sets Centrifugal Water Pump Diesel engine 25 HP Based on the foregoing information and the unit HCV in currency per invoice, the customs duties and taxes due were computed at P53,164.00. On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to file the documents with the Manila International Container Port (MICP) and to proceed to KLine Shipping in Makati, Metro Manila, for the processing of the delivery permits. Dennis first dropped by at K-Line Shipping where he was approached by the petitioner and Catre who introduced themselves as the clients of his father. They invited Dennis to ride with them in petitioner's car in going to the MICP. Dennis agreed. Upon arrival at the MICP, Dennis proceeded to the Entry Processing Division of the Bureau of Customs and filed the import entry and internal revenue declaration (Exhibit "A") and other supporting documents. Dennis handed to the petitioner and Catre a copy of the import entry and internal revenue declaration. They then proceeded to Section 6, the Examiner's Group, of the Bureau of Customs for further processing. Two days after the documents were submitted to the Entry Processing Division, Catre called up Calica and requested Calica to assist him and the petitioner when the cargo will be submitted for actual examination. Calica agreed. On 21 March 1989 Dennis met again with Catre for the processing of the examination request. After filing the request with the arrastre operator, Dennis checked the

respective serial numbers of each container. Dennis did not join anymore in the actual examination of the containers. On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the Bureau of Customs, addressed a formal request (Exhibit "B") to the District Intelligence Officer of the Bureau for a 100% examination of the shipment consigned to Eversun Commercial Trading. On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot check on the questioned shipment to verify the contents of the container van. It was discovered that the contents were automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration. The engines are more particularly described as follows: 1. Contr. No. EKLU-2673966 20' containing 60 pcs./units DR50A diesel engine 2. Contr. No. ITLU-6078177 20' containing 60 pcs./units 4DR50A diesel engine 3. Contr. No. UFCO-3976925 20' containing 60 pcs./units 4DR50A diesel engine 4. Contr. No. KLTU-1010988 20' containing 60 pcs./units 4DR50A diesel engine 5. Contr. No. KXTU-2027369 20' containing 60 pcs./units 4DR50A diesel engine The computation of the taxes due thereon made on 30 March 1989 by Mamerto Fernandez, Customs Appraiser, showed a discrepancy in the total amount of P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of seizure and detention were issued by the District Collector of Customs. Per the directive of the Commissioner of Customs dated 20 April 1989, Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division conducted an investigation on the circumstances surrounding the interception and seizure of the shipment. Their verification with the Securities and Exchange Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is a non-existent firm and that the tax account number used by Eversun in making the Import Entry Declaration was non-existent. During their investigation, Tugday and Tamparong issued two subpoenas to the petitioner to appear before them. He did not appear to explain his side. As a result, Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their findings and recommendations, among which were the filing of criminal charges against the petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs Code of the Philippines and the filing of criminal charges against the petitioner under Section 3610, in relation to Section 3512. Subsequently, after appropriate preliminary investigation, the information was filed with the Sandiganbayan. On the basis of the evidence, the Sandiganbayan concluded that all the elements of Section 3 (e) of R.A. No. 3019, to wit: 1. The accused is a public officer or private person charged in conspiracy with him; 2. Said public officer commits the prohibited acts during the performance of his official duties or in relation to his public position; 3. He causes undue injury to any party, whether the government or private party; 4. Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and 5. The public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence. 24 are present in this case. More specifically, it said: Accused Odon Pecho acted in bad faith from the very start when he conspired with his co-accused Mr. Jose Catre in misleading the government on the actual contents of the shipments belonging to Eversun Commercial Trading and thereby evading the payment of correct taxes due to the government. "Bad faith" does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel vs. Beacon Participations 8 NE 2nd Series, 895, 1007). It contemplates a statement of mind

affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes (Air France vs. Carrascoso, 18 SCRA 155). Evident bad faith connotes a manifest deliberate intent on the part of accused to do wrong or cause damage. As Customs Guard, the accused is supposed to safeguard the interest of the government particularly the Bureau of Customs to which he is employed. Nonetheless, he allowed himself to be used in this illegal scheme to give unwarranted benefits or advantage to the importer at the expense of the government. The accused's participation is positively established by the testimonies of Messrs. Constantino Calica and his son Dennis Calica. These two represent the Calica Brokerage contracted by the two accused Mr. Pecho and Mr. Catre to prepare and file with the Bureau of Customs the required import entry declaration. The two accused went straight to Mr. Calica's office and introduced themselves as the duly authorized representatives of Eversun Commercial Trading which is based at Surigao del Norte. The contract of services entered into by the two accused and Mr. Constantino Calica may be said to be peculiar from the usual contract of this kind. It is limited only to the preparation of the import entry declaration, the computation of taxes due to the Bureau of Customs and filing the same with the latter. It was the two accused who handed Mr. Calica the shipping documents necessary for the preparation of an import entry declaration such as the packing list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading (Exh. A-3) and the importer's sworn statement. These documents declare the shipment as five (5) containers of STC agricultural disc blades and irrigation water pumps more particularly described as follows: Based on the information given by the two accused, the taxes and duties was computed at P53,164.00. As the customs representative of Calica Brokerage, Dennis Calica is in-charge with the filing and posting of documents with the Bureau of Customs. On March 16, 1989, his father instructed him to file the import entry declaration covering the importations of Eversun Commercial Trading with the Bureau of Customs. He dropped first at the head office of K Line Shipping Company in Makati to process the delivery permits. While he was there, two men approached him and introduced themselves as Mr. Pecho and Mr. Catre, the clients of his father. The two accused invited him to go with them and they boarded Mr. Pecho's car and the three of them proceeded to the Manila International Container Port. The two accused accompanied him when the import entry declaration (Exh. A-6) was filed with the Entry Processing Division, Bureau of Customs. The services of the Calica Brokerage were again solicited by the two accused in the actual examination of the goods. So, on March 21, 1989, Dennis Calica met again with the two accused for the said purpose. There is a deliberate intent on the part of the accused to do wrong or cause damage to the government. This may be inferred from the actuations of two accused. Their concerted actions show that they cooperated with each other towards the accomplishment of a common felonious purpose, in this case, the defraudation of the government through non-payment of the correct amount of taxes and duties to the latter (People vs. Catubig, 195 SCRA 505). Accused Pecho assisted his co-accused Catre in his official capacity as a customs guard in processing the documents required to insure that the goods consigned to Eversun Commercial Trading be released without delay and without arousing suspicion from the government authorities. Accused Pecho's act defeats the very objective of the government to upgrade the system of collection with regard to taxes and duties due to the government. Moreover, this is tantamount to an act of betrayal of the confidence reposed in him when he was employed as Customs Guard of the Bureau of Customs. 25 There is no doubt in our minds that without the early discovery of the fraud through the timely recommendation by the Chief Intelligence Officer for a 100% examination of the shipment and the spot check of the shipment by Customs Senior Agent

Ruperto Santiago, the Government would have been defrauded in the sum of P1,027,321.00 corresponding to the deficiency in taxes. Such discovery and the immediate issuance of a hold order and a warrant of seizure and detention by the District Collector of Customs against the said articles effectively prevented the consummation of the offense. The Government incurred no undue injury or damage. At most then, the violation of Section 3(e) of R.A. No. 3019 reached only the attempted stage because the perpetrators had commenced the commission of the offense directly by overt acts but failed to perform all the acts of execution which would have produced the felony as a consequence by reason or some cause other than their own spontaneous desistance, 26 namely, the timely intervention of alert customs officials before the release of the cargoes. Except then as to the third requisite of the offense penalized by Section 3 (e) of R.A. No. 3019, as amended, viz.: "causing undue injury to any party, including the Government," we agree with the findings and conclusion of the Sandiganbayan that the requisites thereof, as laid down in Ponce de Leon vs. Sandiganbayan, 27 are present in this case. Would the absence of the third requisite, which, therefore, makes the petitioner's act only an attempted violation of Section 3(e), subject him to the same penalty as if he had committed the consummated crime? The answer would depend on whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by special laws, like R.A. No. 3019, as amended, more specifically to that covered by Section 3(e) thereof, which is involved in this case. In United States vs. Basa, 29 this Court held that the last paragraph of Article 3 of the Old Penal Code relating to attempts to commit crimes is not applicable to offenses punished "by acts of the Commission," i.e., special laws. In People vs. Ngan Te, 30 this Court also held that an accused cannot be convicted of a frustrated violation of a crime punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January 1934). In People vs. Jolliffe, 31 involving a prosecution for the violation of Section 34 of R.A. No. 265, in relation to Section 4 of Central Bank Circular No. 21 which provides: Any person desiring to export gold in any form, including jewelry, whether for refining abroad or otherwise, must obtain a license from the Central Bank. Applicants for export licenses must present satisfactory evidence that the import of the gold into the country of the importer will not be in violation of the rules and regulations of such country. this Court, in rejecting the contention of the defense that the penalty for violations of the circular refer to consummated exportation not to "attempted or frustrated exportation," declared: This section explicitly applies to "any person desiring to export gold" and, hence, it contemplates the situation existing prior to the consummation of the exportation. Indeed, its purpose would be defeated if the penal sanction were deferred until after the article in question had left the Philippines, for jurisdiction over it, and over the guilty party, would be lost thereby. It may thus be said that the application of Article 6 of the Revised Penal Code to offenses penalized by special laws would depend on how the latter defines the offense. This would give life to Article 10 thereof which provides that the Code shall be supplementary to special laws, unless the latter should specifically provide the contrary. In the case of Section 4 of Central Bank Circular No. 21, it is clear from the phrase "desiring to export" that even a mere attempt to export which is necessarily included in desiring is punishable. There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only consummated offenses. Firstly, the penalty imposed therefor per Section 9 is "imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income." The

imposable imprisonment penalty does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the application of, inter alia, Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. The penalty of perpetual disqualification is only from office, unlike either the perpetual absolute and perpetual special disqualifications under Articles 30 and 31 of the Revised Penal Code. Secondly, the third requisite of Section 3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage which must be established by evidence. The word causing is the present participle of the word cause. As a verb, the latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make to induce; to compel." 32 The word undue means "more than necessary; not proper; illegal." 33 And the word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another." 34 Taken together, proof of actual injury or damage is required. Thus, in Alejandro vs. People, 35 which involves a prosecution for the violation of Section 3(e) of R.A. No. 3019, as amended, this Court, in acquitting the accused declared: Moreover, one of the elements of the crime described in Sec. 3(e) of the Anti-Graft and Corrupt Practices Act is that there should be undue injury caused to any party. However, in the 30 July 1987 decision of the respondent Sandiganbayan, it is recognized that there was no proof of damage caused to the employees of the hospital since they were in fact paid on 27 October 1982 their salaries for the entire third quarter of 1982. In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in Alejandro, also stated: There is no evidence whatsoever to show that the acts of the petitioners were done with evident bad faith or gross negligence. Neither is there proof that there was undue injury caused to any party. Who is the party injured? There is nothing in the records to show injury to any party, least of all the government. The urgent repairs were completed. The Bureau of Customs personnel and the public dealing with them were benefited but nobody was injured. But most of all, there was no evident partiality. No actual injury or damage having been caused to the Government due to the timely 100% examination of the shipment and the subsequent issuance of a hold order and a warrant of seizure and detention, the petitioner must, perforce, be acquitted of the violation of Section 3(e) of R.A. No. 3019. Fortunately, for the State, the offense charged in the information in Criminal Case No. 14844 necessarily includes the complex crime of estafa (under paragraph 2(a), Article 315, Revised Penal Code) through falsification of public documents (under Article 171, Revised Penal Code). Article 315 reads: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2 (a), viz., (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized representative of Eversun Commercial Trading, the alleged importer of agricultural disc blades and irrigation water pumps in the container van when, in truth and in fact, said importer is non-existent or fictitious with an equally spurious Tax Account Number, and that the cargoes imported were not as declared but 300 units of diesel engines, which fraudulent acts were done with the use of falsified documents such as import entry declaration, packing list,

commercial invoice and bill of lading; (2) the false pretenses or fraudulent acts were executed prior to the commission of the fraud; and (3) the defraudation of the Government in the amount of P1,027,321.00 in taxes representing the difference between the correct taxes and duties due and that earlier computed on the basis of the false declaration. In other words some of the essential ingredients of the offense charged constitute the essential requisites of estafa through falsification of official documents. If duly proved by the evidence for the prosecution that satisfies the quantum of proof required for conviction, the petitioner can, under the information be convicted of estafa through falsification of official and commercial documents, an offense which is, as stated earlier, included in that which is charged. Section 4, Rule 120 of the Rules of Court provides: Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. Analyzing this provision, this Court stated in Esquerra vs. People: 37 Stated differently, an accused may be convicted of an offense provided it is included in the charge, or of an offense charged which is included in that proved. Still stated differently, an accused can be convicted of an offense only when it is both charged and proved. If it is not charged although proved, or if it is not proved although charged, the accused cannot be convicted thereof. In other words, variance between the allegation and proof cannot justify conviction for either the offense charged or the offense proved unless either is included in the other. Section of Rule 120 states when an offense includes or is included in the other: Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. In view of the aforesaid rules, it follows then that: a. When the offense proved is less serious than, and is necessarily included in, the offense charged (as when the offense proved is homicide and the offense charged is murder), in which case the defendant shall be convicted of the offense proved (U.S. vs. Macalintal, 2 Phil. 448; . . .). b. When the offense proved is more serious than and includes the offense charged (as when the offense proved is serious physical injuries and the offense charged is slight physical injuries), in which case the defendant shall be convicted only of the offense charged (U.S. vs. Guzman, 8 Phil. 21 . . .). 38 As earlier adverted to, the evidence established by the prosecution proves beyond reasonable doubt that the crime of estafa was only at its attempted stage and that it was sought to be consummated through the falsification of the following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to be prepared by the exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its general manager; Bill of Lading (Exhibit "A-5") which appears to be issued in Yokohama by the Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A6") all of which show that the cargoes imported were "agricultural disc blades and irrigation water pumps; as well as the Import Entry and Internal Revenue Declaration signed by customs broker Constantino Calica and prepared on the basis of the foregoing documents. The falsifications consist in making it appear that the importerconsignee indicated is a legitimate importer or an existing importer which had participated in such importation and authorized the accused to request the release of

the imported articles although, in truth, it is non-existent and, therefore, had no participation in the importation; and in the untruthful statements that what were imported were agricultural disc blades and irrigation water pumps when in truth they were automotive diesel engines. The information in this case can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents. The accused having failed to object before trial to the duplicitous information, he may be validly convicted of both or either of the offenses charged and proved. 39 The Import Entry Declaration (Exhibit "A-6"), a public and official document, is required by Section 1301 of the Revised Tariff and Customs Code of the Philippines. 40 Under the said section, the parties authorized to make the import entry are (a) the importer, being the holder of the bill of lading, (b) a duly licensed customs broker acting under authority from a holder of the bill of lading, or (c) a person duly empowered to act as agent or attorney in fact for such holder. If the entry is filed by a party other than the importer, the importer shall himself be required to declare under oath and under penalties for falsification or perjury that the declarations and statements contained in the entry are true and correct. Such statements under oath shall constitute prima facie evidence of knowledge and consent of the importer of a violation against applicable provisions of the Code should the importation turn out to be unlawful or irregular. The falsifications then of the aforesaid official and commercial documents were the necessary means for the commission of the attempted estafa. There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were the authors of the falsification. Nevertheless, since it was shown with moral certainty from the testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed extraordinary personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner and Catre are presumed to be the authors of the falsified documents. A rule, well-buttressed upon reason, is that in the absence of satisfactory explanation one found in possession of and who used a forged document is the forger and therefore guilty of falsification. 41 It is, however, essential that the use must be so closely connected in time with the forging such that the utterer or user may be proved to have the capacity of forging, or such close connection with the forger that it becomes, when so accomplished, probable proof of complicity in the forgery. 42 In People vs. Sendaydiego, 43 this Court reiterated the rule thus: The rule is that if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and, therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105 Phil. 1253). In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967, 19 SCRA 688; People vs. Caragao, L28258, December 27, 1969, 30 SCRA 993). No explanation at all having been given by the petitioner as to why he and his co-accused were in possession of and used the falsified official and commercial documents, they are deemed to be the forgers thereof. Accordingly, the petitioner is liable for and can be validly convicted of the complex crime of attempted estafa through falsification of official and commercial

documents under paragraph 2(a) of Article 315 and Article 171 of the Revised Penal Code. Pursuant to Article 48, the penalty for the more serious crime shall be applied in its maximum period. If the crime of estafa had been consummated, the Government would have been defrauded in the amount of P1,027,321.00. Hence, the applicable penalty under Article 315 of the Revised Penal Code would have been prision correccional in its maximum period to prision mayor in its minimum period, with an additional one (1) year for every P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not exceed twenty years. Since what was established was only attempted estafa, then the applicable penalty would be that which is two degrees lower than that prescribed by law for the consummated felony pursuant to Article 51, in relation to Article 61(5), of the Revised Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum period. On the other hand, the penalty for falsification under Article 171 is prision mayor and a fine not exceeding P5,000.00. Obviously then, this is the more serious crime which shall be imposed upon the petitioner pursuant to Article 48. Since he is entitled to the benefits of the Indeterminate Sentence Law, 44 he can be sentenced to an indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum and a fine of P2,000.00. The maximum of the duration is in conformity with Article 48 which mandates that the penalty for the more serious crime shall be applied in its maximum period. The foregoing disquisitions clearly suggest that those in charge of investigating criminal complaints against public officials and employees and of filing the corresponding informations in court must carefully determine under what law the offenders should be prosecuted. They should note that the offenses enumerated in Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended) are but in addition to acts or omissions of public officers already penalized by existing law. Thus, to attain the very purpose of said law and further enhance the constitutional mandate that a public office is a public trust and all public officers and employees "must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency," 45 prosecutors should not limit their action to the additional offenses. To be more logical, they should initially consider if the questioned acts are already penalized by the Revised Penal Code and should the rule on double jeopardy be inapplicable, to exhaust all the available remedies of the State against the offender. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense. 46 WHEREFORE, the instant petition is DENIED; however, the judgment of the Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified, the petitioner is hereby declared guilty beyond reasonable doubt of the complex crime of attempted estafa through falsification of official and commercial documents and, applying the Indeterminate Sentence Law, is hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor maximum as maximum, with the accessories thereof and to pay a fine of Two Thousand Pesos (P2,000.00). DIGEST: ODON PECHO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. G.R. No/SCRA: G.R. No. 111399, November 14, 1994

Facts: 1. Odon Pecho (petitioner) filed a motion for reconsideration for the decision of Sandiganbayan last 28 June 1993 which charged him guilty for the violation of Section 3(e) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. 2. Brief Demographics: Odon Pecho - a public officer being then the Customs Guard; Jose Catre- a representative of Eversun Commercial (a firm w/c turned-out to be fictitious as it is not registered in the Department of Trade and Industry nor in the Securities and Exchange Commission); Constantino Calica - CPA Customs Broker 3. Both petitioner and Catre, pretended to be agents or representatives of Eversun Commercial Trading in the importation of some agricultural disc blades and irrigation water pumps. They engaged, solicited and contracted the services of Calica for the release of said shipment and preparation of the necessary import entry declaration which led Calica, through his son Dennis who was also a customs broker, with the computed taxes and duties amounting to P53,164.00. But contrary to the entry declaration, the subject shipment before its release, upon examination of some customs officials was found to contain diesel engines instead and the correct taxes and duties is P1,080,485.00 prejudicing the government P1,027,321.00. Issue: Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, punishable? If it is not, may an accused be, nevertheless, convicted for an offense penalized by the Revised Penal Code which is included in that of the former as charged? Ruling: The Supreme Court denied the petition, however modified that the petitioner is hereby declared guilty beyond reasonable doubt of the complex crime of attempted estafa through falsification of official and commercial documents instead of violation of Section 3(e) of R.A. No. 3019. Reasons are as follows: a. Section 3 penalizes only acts "causing undue injury to any party, including the government. Yet in the case the violation of Section 3(e) of R.A. No. 3019 reached only the attempted stage and caused no damage to the government because of the timely intervention of alert customs officials before the release of the cargoes, thereby acquitting petitioner of the said violation. b. There is however complex crime of estafa through falsification of public documents due to (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized representative of Eversun Commercial Trading, the alleged importer of agricultural disc blades and irrigation water pumps in the container van when in fact, said importer is non-existent and the cargoes were instead diesel engines and (2) the defraudation of the Government in the amount of P1,027,321.00. In other words some of the essential ingredients of the offense charged constitute the essential requisites of estafa through falsification of official documents. Despite not having direct proof that the petitioner and his co-conspirator, Jose Catre, were the authors of the falsification it was shown with moral certainty from the testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed extraordinary personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner and Catre are presumed to be the authors of the falsified

documents. A rule, well-buttressed upon reason, is that in the absence of satisfactory explanation one found in possession of and who used a forged document is the forger and therefore guilty of falsification. Additional info: The evidence for the prosecution likewise failed to prove that the petitioner (1) personally represented himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the public and commercial documents in question; and (3) had, at any time, possession of all or some of the said documents as proven by the testimonies of the Calicas. Otherwise stated, there is no sufficient circumstantial evidence to prove conspiracy between the petitioner and Catre to commit the complex crime of estafa through falsification of public and commercial documents. Neither is there evidence of petitioners active participation in the commission of the crime. There is reasonable doubt as to his guilt. And since his constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt, the petitioner must then be acquitted even though his innocence may be doubted. Decision of 14 November 1994 is SET ASIDE, and another is hereby rendered REVERSING the challenged decision of 28 June 1993 and resolution of 12 August 1993 of the Sandiganbayan in Criminal Case No. 14844 and ACQUITTING petitioner ODON PECHO of the complex crime of attempted estafa through falsification of official and commercial documents, without, however, prejudice to any appropriate administrative action which his office may take against him as may be warranted by the circumstances in this case. PEOPLE vs. MARTIN SIMON (G.R. No. 93028 July 29, 1994) Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana. 1 Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded. I The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities and barangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the

marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator. 4 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. 5 Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. 6 Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7 Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained normal. 8 As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twentypeso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days. 9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body. 11 On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government. 12 Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13 At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16 To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and

while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and conclusiveness. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26 Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows: Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA? A: Our office is only adjacent to those offices but we cannot make a request for that powder because they, themselves, are using that in their own work, sir. 29 The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having

caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33 However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one for the prosecution 45 and the other for the defense, 46 testified on the absence of any telltale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. 48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there.49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows: Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 5. 750 grams or more of indian hemp or marijuana Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification. 55 Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can

sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. 56 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period.58 Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed

separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. 60 Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its

Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages with the periodicity prescribed therein, provided: Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shallprima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 63 Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor toprision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To

hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress. In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . . The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal laws." (Emphasis ours.) 66 Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained. While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof,

the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor,destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. 69 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must

apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71 The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave. Separate Opinions

DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional. I The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that: if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to

drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses. Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyondprision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 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. 2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur.
# Separate Opinions

DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional. I The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending

circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that: if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II

The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses. Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyondprision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has.

Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 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. 2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur. DIGEST: PEOPLE OF THE PHILIPPINES, plaintiff-apellee vs. MARTIN SIMON, accused-apellant, GR 93028, 29 July 1994 Facts: 1. The accused is charged that on or about October 22, 1988, he engaged in the illegal sale of two teabags of marijuana (3.8gms). 2. Prosecutions version of the story: In response to a tip from a NARCOM operative, the police unit at Camp Olivas, Pampanga formed a buy-bust team composed of Sgt. Lopez, Pfc. Villaruz, and Sgt. Pejoro. After locating Simon in Sto. Cristo, Lopez approached him and asked if he had marijuana for sale. The accused said yes and Lopez asked if he could purchase two bags. After the transaction was completed, Lopez made the signal to the rest of the team, who immediately closed in on the accused. Villaruz confiscated the marijuana and the marked money. He corroborated Lopezs testimony, saying that he saw the transaction transpire. Pejero claimed that he did not personally see the deal transpire since he was farthest from the team, but that he was the one who conducted the custodial investigation after the accused was brought to Camp Olivas. Pejero claims that the accused orally waived his right to counsel. Dr. Pedro Clara, the medical officer at Camp Olivas checked Simon twice: the first was on the day after the arrest, when he noticed that the accused had high-blood pressure but that he looked normal externally; the second was the following day, when the accused complained of abdominal pain, which Clara observed was a result of his peptic ulcer. Other than that, medical officer found him to look normal. This was corroborated by another doctor (Dr. Gomez-Aguas of the district hospital at Floridablanca), who confirmed that the accused suffered from peptic ulcer and that his body showed no signs of contusions, abrasions, or external injury. 3. Defense version of the story: The accused claimed that he was framed up. He claimed to have been watching the television with his family on the day of the incident at around 4.30pm when the three officers arrived, telling him that he was to go with them to Camp Olivas. Simon went, but on the way, he noticed that they were taking a different route. He was told by the officers that he is a pusher, so he attempted to get off the

jeep, but he was handcuffed. When they reached the camp, he was told to sign some papers. When he refused, he was boxed eight or nine times in the stomach by Sgt. Pejero. This, he explained, was the cause of his vomiting of blood. He admitted to have escaped from the NARCOM office because of the abuse he was suffering from the police. He ran to his uncles house in San Matias. Thereafter, he was accompanied by his sister to the district hospital at Floridablanca, Pampanga where he was confined for 3 days. 4. The trial court found the accused guilty and was sentenced with the penalty of life imprisonment and Php20,00 for damages under Sec. 4, Art. II of RA 6424 (as amended by RA 7659). Hence, the petition on the grounds that the lower court erred in: a) not upholding his defense of frame-up; b) not finding the confiscated marijuana as inadmissible evidence; c) in convicting him of violating RA 6426. 5. The Supreme Court gave credence to the prosecution story. It is faced however with the question on what punishment should be rendered on the accused.

Ordinarily, the rules on mitigating and aggravating circumstances under the RPC do not have supplementary applicability on the penalties imposed by special penal laws, but the Court ruled that a mitigating circumstance can be considered because of the Sec. 20 of RA 6425 as amended provides that the punishment will depend on the quantity, in this case 3.8gms, which is considerably less than 750gms. Ordinarily, the calculation of punishment under the RPC does not have supplementary applicability to special penal laws, which usually provide for its own calculation of punishment for violations of its provisions. Justice Davide concurred on the guilt of the accused but dissented against the reasoning behind the punishment rendered, arguing that the majority opinion was inconsistent in liberally applying Sec. 20 of RA 6425 as amended to one aspect of the RPC and not liberally to another aspect.

PEOPLE vs. ROMANA SILVESTRE and MARTIN ATIENZA Issue: Should Martin Simon suffer a lighter punishment in light of the amendments made by RA 7659 on RA 6425 (since then repealed by RA 9165)? Ruling: Yes. Article 10 of the Penal Code states that it will be supplementary to special laws if applicable. RA 6425 and its amendments are special laws which Simon violated. Given that RA 7659 provides a lighter penalty (and also given that the RPC is supposed to be supplementary to special laws), Article 22 of the RPC, which allows for the retroactive effect of laws if it is favorable to the accused, should apply. Before it was amended, RA 7659 punishes sale of drugs with reclusion perpetua to death. After it was amended, the punishment of reclusion perpetua to death only applies if the quantity of marijuana sold was 750gms or more. The Court ruled that, pursuant to Sec. 20, Art. IV of RA 6425 as amended, in cases where the drugs sold was less than 750gms, the punishment will range from prision correctional to reclusion temporal, depending on the amount. Simon only sold 3.8gms. RA 6425 then, as amended, is clearly to Simons favor. However, the Court noted that RA 6425, as amended, did not explicitly give the Court the discretion to sentence the accused with a lighter penalty. The Court ruled that RA 6425 as amended, unqualifiedly adopted the rules on punishment prescribed by the RPC. Moreover, the Court said that the Indeterminate Sentence Law applies in this case as drug offenses are not excluded in the said law. This law is a social measure of compassion which provides that if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Sec. 1) Thus, the Court found the accused guilty, but his punishment was modified accordingly to an indeterminate sentence of arresto mayor (six months minimum) to prision correctional (6 years max). Additional info: Ordinarily, the determination of habitual delinquency under the RPC does not have supplementary applicability on the accused because habitual delinquency does not apply to drug offenders. Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit: 1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. 2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. The following facts were proved at the hearing beyond a reasonable doubt: Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Nio, in the same municipality of Paombong. About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.lawphil.net As stated in the beginning, counsel appointed by this court to defend the accusedappellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation. With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio of Santo Nio, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions. Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire? The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice. The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows: ART. 550. The penalty of cadena temporal shall be imposed upon: 2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fifty pesetas. While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists. With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night. For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur. DIGEST: THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. OMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants., G.R. No/SCRA: G.R. No. L-35748, December 14, 1931 Facts: 1. Martin Atienza and Romana Silvestre was convicted with arson by the Court of First Instance. Martin was sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and Romana, as accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. 2. The counsel of the appellants after giving his argument asked the ourt to uphold the conviction of Martin Atienza but pointed out the following errors with regards to Romanas conviction: a. The counsel of the appellants argued that the lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. b. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. 3. The story behind the case is: Romana Silvestre was the wife of Domingo Joaquin. She cohabitated with Martin Atienza. All of them lived in the barrio of Masocol, municipality of Paombong, Province of Bulacan. Domingo filed a complaint of adultery against the two, and on the same day they were arrested. They posted bail of 6,000 pesos. Martin then asked the municipal president to urge Domingo to withdraw the case and promised that they will stop cohabitating and that Martin will leave the barrio. The municipal president told Domingo about this and Domingo acceded. However, after sometime, Martin, who continued to cohabitate with Romana, went back to the Barrio of Masocol and stayed in the house of Romanas son from the former husband. He then warned Romanas son, Nicolas to take away the furniture because he will set fire to the houses in Masocol in revenge to what they did to him. In Martins mind, the people of Masocol was the reason why they were charged with adultery. Upon hearing Martins statement, Nicolas and his wife left the house to report to the baranggay officials. They could not do anything because Martin was armed with a pistol at that time, even Romana was not able to do anything. After Nicolas and his wife walked about a hundred meters away, Martin then proceeded to start a fire that burned 48 houses. They took refuge in the school grounds. 4. The counsel supported his argument that the charging of Romana as an accomplice to the crime of arson by reason that she did not raise a protest when Martin, whom she is cohabitating with, expressed his intentions to burn the house is an erroneous decision. He further argued that to be considered an accomplice, one must cooperate with the execution of the crime by previous or simultaneous actions (article 13 and 14). Romana does not fall in this category for she did not plan, nor cooperate with Martin about this crime. Issue: Whether or not mere passive presence of a person in the scene of anothers crime, and failure to give alarm, constitute the crime of conspiracy and accomplice to the crime. Ruling: No. Mere passive presence, even when failing to raise an alarm is not sufficient to consider a person an accomplice if there is no evidence available that the person

was in agreement or conspiracy in executing the act. The Supreme Court upheld its decision to convict Martin of arson but reversed the lower courts decision about Romana Silvestre, thereby acquitting her or any criminal liability.

JACINTO vs. PEOPLE (G.R. No. 162540, July 13, 2009) Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision1 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 Resolution2 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) of Caloocan 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 abovenamed 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. 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 co-employee 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.4Baby 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. 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, the decision of the trial court is MODIFIED, in that: (a) the sentence against accused Gemma Jacinto stands; (b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium. (c) The accused Jacqueline Capitle is acquitted. 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 dated March 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 brotherin-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 Appeals9 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: 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. 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 Intod10 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. 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. 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 of qualified 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.1avvphi1 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. People12 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: 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." 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. 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. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. 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 theP5,000.00 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, are MODIFIED. 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.