Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-43556 December 18, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. HONORATO ESPINA Y REAL, defendant-appellant. Natalia M. Balboa for appellant. Office of the Solicitor-General Hilado for appellee.

An accused who has already been previously convicted twice of the crime of theft, having served the sentences imposed upon him commits, within ten years after service of his last sentence, the crime of robbery, inflicting on occasion thereof some of the physical injuries punished in subsection 1 of article 263 (article 294, subsection 2, of the Revised Penal Code). This crime is punished with reclusion temporal in its medium period to reclusion perpetua. Being a habitual delinquent, the penalty of two years, four months and one day of prision correccionalshould be imposed upon him in addition to the principal penalty. Without taking into consideration the aggravating circumstance of recidivism, the principal penalty to be imposed upon him would be seventeen years, four months and one day. Adding the additional to this principal penalty, the resulting penalty would be nineteen years, eight months and two days. However, if the additional penalty for habitual delinquency were not imposed, by imposing the principal penalty, taking into consideration the aggravating circumstance of recidivism, the penalty would bereclusion perpetua which is the maximum period of the penalty prescribed by law, or thirty years, if he is pardoned thereafter. Let us suppose that a mitigating circumstance was present in the foregoing example. If the aggravating circumstance of recidivism is not to be taken into consideration for imposing the additional penalty for habitual delinquency, the mitigating circumstance would require that the penalty prescribed by law be imposed in its minimum period, or fourteen years, eight months and one day. Adding to this the additional penalty of two years, four months and one day, the penalty would be seventeen years and two days. If the additional penalty is not imposed and the aggravating circumstance of recidivism is taken into account, the latter would compensate the mitigating circumstance and the penalty should have to be imposed in its medium period, or seventeen years, four months and one day, which would be four months more severe. Let us suppose that instead of one mitigating circumstance, two were present in this example. Considering the aggravating circumstance of recidivism, it would have to be compensated by one mitigating circumstance, leaving another, and the penalty to be imposed would be the minimum period, or fourteen years, eight months and one day of reclusion temporal. If the aggravating circumstance of recidivism were not taken into consideration for imposing the additional penalty, the two mitigating circumstances would have to be taken into consideration and the penalty next lower in degree imposed in any of its periods, which mat be the minimum, according to the circumstances of the case, or eight years and one day. Adding to this the additional penalty of two years, four months and two days, or two years, three months and twenty-nine days less.1awphil.net Applying these examples to other cases of habitual delinquency, the result would, more or less, be the same. According to this, if the theory counter to that adopted by this court in People vs. Melendrez, supra, were to be followed, the imposition of the additional penalty would make the penalty lighter, instead of more severe, contrary to the purpose of the law.

AVANCEA, C.J.: The appellant was charged in the lower court with the crime of theft of articles valued at P585.15 and, having pleaded guilty, was sentenced to six months and one day of prision correccional and, being a habitual delinquent, to an additional penalty of two years, four months and one day of prision correccional. The principal penalty imposed by the court is not correct. The amount stolen is more than P200 but does not exceed P6,000 and, under article 309, subsection 3, of the Revised Penal Code, the penalty to be imposed should be prision correccional in its minimum and medium periods. Being a recidivist and having pleaded guilty, both circumstances should compensate each other and the penalty should he imposed in its medium period, that is, one year, eight months and twenty-one days. As the appellant is a habitual delinquent, this being his third conviction, the additional penalty of two years, four months and one day of prision correccional should also be imposed upon him. The question whether, in imposing the additional penalty on the appellant as habitual delinquent, recidivism, as an aggravating circumstance inherent of habitual delinquency, should still be taken into consideration in filing the principal penalty, has already been expressly decided in the affirmative by this court in People vs. Melendrez (59 Phil., 154). There is no doubt that the purpose of the law in imposing additional penalty on a habitual delinquent is to punish him more severely. However, the result would be otherwise if, for imposing the additional penalty, recidivism could not be considered as aggravating circumstance in fixing the principal penalty. This may be clearly understood from the following example.

Wherefore, it being understood that the principal penalty imposed upon the appellant is one year, eight months and twenty-one days, the appealed judgment is affirmed in all other respects, with other costs. So Ordered. Hull, and Vickers, JJ., concur. G.R. No. L-45198 October 31, 1936 ISLANDS, plaintiff-appellee,

subsection 7, Revised Penal Code), and the apparent absence of all allegation in the information of some aggravating circumstance that may compensate said mitigating circumstance (art. 63, rule 1, Revised Penal Code). The imposition of the additional penalty of two years, four months and one day upon the appellant is justified by his own admission of guilt because the rule is well settled in this jurisdiction that when one pleads guilty of the crime imputed to him in an information, it is understood that he admits all the material facts alleged therein (U. S. vs. Barba, 29 Phil., 206; U.S. vs. Santiago, 35 Phil., 20), not excluding those alleging his former convictions of other crimes (U.S. vs. Burlado, 42 Phil., 72); and in the information filed against the appellant, it was alleged: That the said accused is a habitual delinquent within the purview of rule 5 of article 62 of the Revised Penal Code, he having been convicted by final judgments of competent courts of the following crimes: On January 4, 1933, he was convicted of theft and sentenced to one month and one day of imprisonment, and on November 18, 1935, he was convicted of qualified theft and sentenced to serve two months and one day of imprisonment, the date of his last release being January 10, 1936. The Solicitor-General, taking advantage of the allegation in the information that the appellant is a habitual delinquent, recommends that instead of affirming his principal penalty of one month and one day of arresto mayor, it be increased to the minimum of the medium period of that prescribed by law for his crime, or two months and one day of arresto mayor, considering the aggravating circumstance of recidivism established but compensated by the mitigating circumstance of voluntary confession. His argument appears to be as follows: Habitual delinquency necessarily implies recidivism or former conviction, at least more than once. The appellant having admitted in his confession that he is a habitual delinquent for having committed theft for the third time within the period prescribed by law, he must necessarily be considered a recidivist. This naturally raises the question whether or not in this case the circumstance of recidivism can be and must be twice taken into consideration against the appellant, first as an aggravating circumstance although compensated by another mitigating circumstance, and second as a qualifying circumstance or one inherent, as the case may be, in habitual delinquency. If such an opinion were sustained, would not an injustice be committed against the appellant by imposing two penalties upon him, the principal and the additional, in a period which must be determined by taking into consideration one and the same fact or circumstance, which is recidivism? There is no express provision of law prohibiting it. On the contrary, as to the principal penalty, there is the rule that in cases in which the penalty prescribed by law contains three periods, the courts must take into consideration, in the application of said penalty, the aggravating mitigating circumstances established at the trial if they do not appear to be compensated by other circumstances; and there is also the rule that when only an aggravating circumstance is present the former, that is the principal penalty, must be imposed in its maximum period (art. 64, Revised Penal Code) ; and in People vs. Aguinaldo (47 Phil., 728), this court has stated, and it is reiterated in People vs. Melendrez (59 Phil., 154), that the aggravating circumstance of recidivism, even in cases of habitual delinquency, should be taken into consideration in the application of the principal penalty in the corresponding period.

THE PEOPLE OF THE PHILIPPINE vs. BASILIO DE JESUS Y JAVIER, defendant-appellant. Isabelo G. Reyes Office of the Solicitor-General Hilado for appellee.

for

appellant.

DIAZ, J.: Basilio de Jesus y Javier was convicted by the Court of First Instance of Manila in criminal case No. 52270 of said court, of the theft of an umbrella and a buri hat valued at P2.65 committed, according to the information, on April 28, 1936. He was therein sentenced to one month and one day of arresto mayor with the accessory penalties, to indemnify Francisco Liwanag in the sum of P2.50 representing the value of the umbrella which was not recovered, and being a habitual delinquent, the additional penalty of two years, four months and one day ofprision correccional with the corresponding accessory penalties was also imposed upon him in conformity with the provisions of subsection 5, paragraph (a), of article 62 of the Revised Penal Code. Not agreeing with said penalties he appealed from the sentence undoubtedly for the review of his case. The appellant's counsel de oficio in this instance, considering the appealed sentence in accordance with law, recommends the affirmance thereof in all respects in his short brief. Due to the amount involved, the theft imputed to the appellant is punishable with arresto mayor in its minimum and medium periods the duration of which is from one month and one day to four months (art. 309, subsection 6, Revised Penal Code); and the minimum period of said penalty is from one month and one day to two months. It appears therefrom that the penalty questioned by the appellant is the minimum period, as no other less penalty could have been imposed upon him because said penalty in itself already constitutes the minimum limit under the law. The reasons which prompted the lower court to be lenient with the appellant were undoubtedly his voluntary confession before the prosecution presented its evidence, which constitutes a mitigating circumstance (art. 13,

As to the additional penalty, if we must rely upon the spirit and letter of the law, we would say that the purpose of the latter in establishing it was to prevent those who for the second time or more commit the crimes enumerated in the last paragraph of article 62 of the Revised Penal Code from relapsing thereafter at least during the period fixed thereby, as if to tell them: "If you relapse, the penalty corresponding to your last offense will be imposed upon you plus another additional penalty ranging from prision correccional in its medium and maximum periods to prision mayor in its maximum period and reclusion temporal in its minimum period, according to your recidivism, that is, the third, fourth, fifth or more times." When the law has prescribed the additional penalty for habitual delinquency in a manner susceptible of division into periods and has enumerated it among the penalties that may be imposed by incorporating it into the Revised Penal Code, it was for no other purpose than that all the circumstances present in every case be taken into consideration in order to avoid arbitrariness in the determination of the period in which said penalty should be imposed. It would be arbitrary, in the absence of any circumstance, to impose the maximum of the additional penalty upon a habitual delinquent, as it would also be arbitrary to impose the minimum thereof upon him when there are circumstances justifying its application in the maximum period. We should not lose sight of the fact that when the Legislature incorporated the provision relative to habitual delinquency into the Revised Penal Code, it was aware this, at least, is the presumption of law that recidivism was, as it continues to be in the majority of cases to this date, an aggravating circumstance the effect of which, as the name itself implies, is to aggravate the criminal responsibility of the delinquent. But unlike other circumstances, as treachery, evident premeditation, sex, craft, relationship, public position, dwelling, not to mention several others so as not to be tedious, which may be aggravating, qualifying and inherent as the case may be, recidivism is and can be nothing else but an aggravating circumstance. This is the general rule; but as such it certainly is not without its exception as other general rules. The exception is found in the case of habitual delinquency, as recidivism is precisely one of those that constitute and give it existence, the other being former conviction, but it is not necessary that both be present at the same time. Treachery, evident premeditation and relationship are aggravating circumstances in crimes against persons and when one of them is present, for instance, in a case of homicide, the crime committed ceases to be homicide and becomes murder or parricide, as the case may be. In such cases, that of the said three circumstances which has raised the crime committed from the category of homicide to that of murder or parricide, ceases to be an aggravating circumstance to become a qualifying circumstance and, once accepted as such, it cannot, by virtue of the legal maxim non bis in idem be considered as an aggravating circumstance at the same time (U. S. vs. Estopia, 28 Phil., 97; U. S. vs. Vitug, 17 Phil., 1; Decision of the Supreme Court of Spain of November 13, 1871). So must recidivism be considered in habitual delinquency. We have taken it into consideration in imposing the principal penalty and we cannot again take it into consideration in imposing the additional penalty because inasmuch as recidivism is a qualifying or inherent circumstance in habitual delinquency, it cannot be considered an aggravating circumstance at the same time. Consequently, the additional penalty to be imposed upon the appellant must be the minimum

of the prescribed by law as, with the exception of recidivism, no other circumstance or fact justifying the imposition of said penalty in a higher period has been present. The proposition based on rules 1 and 2 of article 62 of the Revised Penal Code, that if recidivism is considered an inherent or qualifying circumstance of habitual delinquency it should not be taken into account in the imposition of the principal penalty, seems to us untenable because it is based upon the erroneous assumption that the habitual delinquency is a crime. It is simply a fact or circumstance which, if present in a given case with the other circumstances enumerated in rule 5 of said article, gives rise to the imposition of the additional penalties therein prescribed. This is all the more true because the law itself clearly provides that the habitual delinquent must be sentenced to the penalty provided by law for his last crime in addition to the additional penalty he deserves.lwphi1.nt In view of the foregoing facts and considerations and furthermore taking into account the provisions of article 62, rule 5, paragraph (a), of the Revised Penal Code, we deem it clear that the appellant deserves the additional penalty imposed by the lower court upon him. The penalty prescribed by said rule is prision correccionalin its medium and maximum periods, or from two years, four months and one day to six years. What was imposed upon the appellant is the minimum of said penalty and he has absolutely no reason to complain because after all he can not be exempt from the additional penalty by reason of his admission at the trial that he is a habitual delinquent, having committed the crime of theft for the third time before the expiration of ten years from the commission of his former crime. In resume we hold that the principal penalty of the appellant must be two months and one day of arresto mayor. We therefore modify the appealed sentence in this sense and so modified it is affirmed in all other respects, with the costs to the appellant. So ordered. Avancea, C. J., Villa-Real, Imperial, and Laurel, JJ., concur.

G.R. No. 93028 July 29, 1994 PEOPLE OF THE vs. MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant. PHILIPPINES, plaintiff-appellee,

REGALADO, J.:

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) poseurbuyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory 1 examination, were found positive for marijuana. 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 2 detained, he pleaded not guilty. He voluntarily waived his right to a pre-trial 3 conference, 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 andbarangay 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 4 Sgt. Pejoro as the investigator. 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 5 marijuana and took the marked money from appellant. 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, 6 however, orally waived his right to counsel.

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 7 marijuana and the arrest of appellant. 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 8 but, except for the gastro-intestinal pain, his physical condition remained normal. 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 9 three days. 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 10 arrest. 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 11 see any sign of slight or serious external injury, abrasion or contusion on his body.

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 12 were likewise ordered confiscated in favor of the Government. 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) 13 inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 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 14 two tea bags were merely confiscated subsequently from his possession, the latter not being in any way connected with the sale, the information alleges that he sold and delivered 15 four tea bags of marijuana dried leaves. 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 16 bags which separate offense is not charged herein. To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably 17 established. To sell means to give, whether for money or any other material 18 consideration. 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 poseurbuyer, 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 poseur19 buyers is susceptible to mistake, harassment, extortion and abuse. 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 20 buy-bust operation was effected. No ill motive was or could be attributed to them, aside 21 from the fact that they are presumed to have regularly performed their official duty. 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, 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. 23 Marlyn Salangad, a forensic chemist therein, confirmed in her Technical Report No. NB448-88 that the contents of the four tea bags confiscated from appellant were positive for and 24 had a total weight of 3.8 grams of marijuana. Thus, the corpus delicti of the crime had been 25 fully proved with certainty and conclusiveness. 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 26 "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 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 27 whole nor reflects on the witnesses' honesty. 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 buy28 bust operations. 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. xxx xxx xxx

22

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, 29 are using that in their own work, sir. 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 30 transport any prohibited drug, or shall act as a broker in any of such transactions." 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 31 or police authorities. 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 32 in connection with his apprehension. Said Booking Sheet and Arrest Report 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 33 the confiscation of the marked bills from him. 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 34 records to show that he was assisted by counsel. Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing 35 and in the presence of counsel, hence whatever incriminatory admission or confession may 36 be extracted from him, either verbally or in writing, is not allowable in evidence. 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 37 requires merely the consummation of the selling transaction which happens the moment 38 the buyer receives the drug from the seller. 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 39 stranger. We take this opportunity to once again reiterate the doctrinal rule that drugpushing, when done on a small scale as in this case, belongs to that class of crimes that may 40 be committed at any time and in any place. It is not contrary to human experience for a 41 drug pusher to sell to a total stranger, 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 42 marijuana leaves. 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 43 under custody. 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 44 the circumstances. The evidence on record is bereft of any support for appellant's 45 allegation of maltreatment. Two doctors, one for the prosecution and the other for the 46 defense, testified on the absence of any tell-tale 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 47 arrest. His own brother even corroborated that fact, saying that appellant has had a history 48 of bleeding peptic ulcer. 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 49 his arrest and during his detention there. Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite 50 the opportunity to do so 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 51 costs. 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, 52 1993, 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: xxx xxx xxx 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. xxx xxx xxx 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: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision

correccional to reclusion quantity.

perpetua depending

upon

the

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 53 and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 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 54 laws. 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 55 serious or less serious physical injuries, robo, hurto, estafa or falsification. 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 56 of habeas corpus. 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 57 conflicting provisions in order to give effect to the whole law, 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 58 the medium, and the most severe as the maximum period. 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 59 upon the quantity of the drug subject of the criminal transaction. 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 60 if the penalty is reclusion perpetua to death. 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 61 time laws like the Indeterminate Sentence Law 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 62 provided therein. Inceptively, for instance, Commonwealth Act No. 303 penalizing nonpayment 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 63 be punished in the same manner as therein provided. 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 64 death; 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 involveprision 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, 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
65

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 66 the administration of criminal laws." (Emphasis ours.) 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 68 penalty as ultimately resolved will exceed one year of imprisonment. 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 69 rule of contemporanea expositio. 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 70 under the law, 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 71 interpretation. The indeterminate Sentence Law is a legal and social measure of compassion, and should 72 be liberally interpreted in favor of the accused. 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 73 allowed to serve the balance of his sentence outside of his confinement. 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.

[G.R. No. 134486. November 16, 2001]

PEOPLE OF THE appellant. DECISION QUISUMBING, J.:

PHILIPPINES, plaintiff-appellee vs.

CLEMENTE

DAYNA, accused-

Before us on automatic review is the decision[1] of the Regional Trial Court of Dipolog City, Branch 8, finding accused-appellant Clemente Dayna guilty of rape and imposing on him the penalty of death. Appellant was charged under an Information which reads: The undersigned, Provincial Prosecutor, upon a sworn complaint, originally filed by the private offended party, accuses CLEMENTE DAYNA y Agayan of the crime of RAPE, committed as follows: That, in the morning, on or about the 21st day of December, 1994, in the municipality of Pian, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused armed with a hunting knife, moved by lewd and unchaste desire and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously succeed in having sexual intercourse with one EVELYN ELEMIA, a 15 year old orphan, against her will and without her consent.

CONTRARY TO LAW (Viol. Of Art. 335, Revised Penal Code), with the aggravating circumstances (sic) of the use of deadly weapon. Dipolog City, Philippines. February 14, 1995 RODOLFO T. MATA Provincial Prosecutor[2] During his arraignment, appellant pleaded not guilty. Thereafter, trial on the merits ensued. The first witness for the prosecution was the offended party, EVELYN ELEMIA, 15 years old and a resident of Adante, Pian, Zamboanga del Norte. On direct examination, she testified that in the morning of December 21, 1994, at around 8:00 oclock, she and her uncle Clemente Dayna were left alone in their house as her aunt Esperanza went out to buy fish. Clemente Dayna forced her to go upstairs, while he pointed a knife at her back. Upon reaching the second floor, he made her lie down on the floor. Then he removed his shorts and her panty. He then proceeded to have sexual intercourse with her, by inserting his penis inside her vagina for about half an hour. On cross-examination, however, Evelyn stated that her private part was hit by his uncle with an umbrella and that she was told by her aunt and the DSWD personnel to testify that she had been raped. [3] DR. MEIMEI R. YU, the next witness, testified that she was employed as rural health physician of the Pian Community Hospital and that she examined the complainant on December 27, 1994. Her findings revealed that the hymen of Evelyn was still intact and that she suffered no lacerations in that area. Neither did she suffer any bruise or injury on any part of her body. However, Dr. Yu stated that the labia majora was coapted with reddish discoloration which could had been caused by sexual intercourse. On cross, the doctor stated that this discoloration or irritation could have been caused by other hard objects such as the handle of an umbrella being pushed through this particular portion of the organ.[4] SPO3 RONALD SALATANDRE testified that he was the one who investigated the complaint for rape filed by the wife of Clemente allegedly committed against their niece Evelyn.[5] The defense, in turn, presented appellant CLEMENTE DAYNA, who denied the accusations against him. He alleged that he only hit Evelyn with the handle of an umbrella because of anger. He said he lost P50 from his pocket, and he suspected that Evelyn took the money. The handle hit Evelyn on her private part twice. He also alleged that his wife and her family were mad at him for having a paramour.[6] On May 13, 1998, the trial court promulgated its assailed decision disposing as follows: WHEREFORE and for all the foregoing observations, with the guilt of the accused established beyond reasonable doubt, herein accused Clemente Dayna y Agayan is convicted as principal by direct participation of the crime of RAPE charged against him, and in the light of Article 335 of the Revised Penal Code, as amended by Republic Act 7659, which took effect on December 31, 1993, hereby sentenced to suffer the penalty of DEATH, by appreciating the aggravating circumstance of relationship, with all the accessory penalties as may be provided by law.

The accused is further sentenced to pay the offended party the sum of P20,000.00 as actual damages and the additional sum of P50,000.00 by way of moral damages. SO ORDERED.[7] Appellant raises the following errors in his brief: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. II EVEN ASSUMING THAT ACCUSED IS TRULY GUILTY OF THE CRIME OF RAPE, NONETHELESS, THE TRIAL COURT ERRED IN IMPOSING UPON HIM THE SUPREME PENALTY OF DEATH. Appellant asserts that his guilt had not been established beyond reasonable doubt. He places much emphasis on the fact that the medical examination on the complainant revealed that her hymen was still intact, thus refuting the possibility that her organ was invaded by his penis. Appellant also notes that complainant admitted in her cross-examination that she was hit by an umbrella and that her aunt and the DSWD worker told her to tell the court that she was raped. He adds that his wife and her family had ill feelings against him since he has a lover. These things, according to appellant, place a serious doubt on the prosecutions case. In the alternative, appellant alleges that he cannot be sentenced to death because his relationship with the offended party was not alleged in the information.[8] The Office of the Solicitor General (OSG), for the State, argues that an intact hymen is not necessarily inconsistent with a finding of rape and that hymenal laceration is not an essential prerequisite to prove rape. The OSG also notes that Evelyn clarified that two incidents happened on December 21, 1994, one was the umbrella bashing and the other was the rape. There is likewise no reason to believe that complainant and her aunt were moved by ill motive in filing the complaint. Had the rape been a mere fabrication, this would have been evident in the testimony of complainant. On the contrary, complainant, despite her young age and the gruelling nature of the cross-examination, remained steadfast and consistent, tell tale signs that she was telling the truth in court. The OSG concedes that the trial court erred in appreciating the relationship of appellant and complainant as a ground in imposing the death penalty. However, the OSG insists that the penalty of death is still justified since the rape was attended by the aggravating circumstance of use of a deadly weapon. Finally, the OSG adds that the award of P20,000.00 as actual damages should be increased to P75,000.00.[9] In sum, the issues in this case are whether the guilt of appellant had been established beyond reasonable doubt and whether the penalty imposed is proper. In resolving cases of rape, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the accused, though

innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. [10] In general, the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying.[11] Guided by these principles and after a careful review of the records of this case, we find no reason to overturn the finding of guilt reached by the trial court. The testimony of Evelyn was given in a candid and straightforward manner leaving no room for doubt that she is telling the truth. Aside from this, her tender age further lends to her credibility. We noted in People vs. Del Mundo, Sr., G.R. No. 132065, April 3, 2001, it is apparent that in rape cases where the offended parties are young and immature girls from the ages of twelve to sixteen, the rule is that: [C]onsiderable receptivity on the part of this Tribunal to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which such a grueling experience as a court trial, where they are called upon to lay bare what perhaps should be shrouded in secrecy, did expose them to. This is not to say that an uncritical acceptance should be the rule. It is only to emphasize that skepticism should be kept under control. [12] Appellant tries to discredit Evelyn by pointing out that her testimony was not corroborated by the physical evidence. Appellant insists that the fact that her hymen was still intact signifies that she had not been raped. This argument is not convincing. The fact that complainants private parts did not suffer any laceration or that her hymen is still intact is not relevant in a prosecution for rape. In rape cases, what is material is that there is penetration of the female organ no matter how slight. In a long line of decisions, we have ruled that the only essential point is to prove the entrance or at least the introduction of the male organ into the light of the pudendum. Hence, the moment appellants penis knocks at the door of the pudenda it suffices to constitute the crime of rape. [13] On the alleged statements made by complainant during her cross-examination, exonerating appellant, a close look at complainants testimony would in fact reveal that said testimony bolsters her claim that she had been raped. The fact that she admitted that she was hit by an umbrella does not preclude that she was also sexually abused, thus: COURT: From the Court. There are two incidents which you seem to tell the Court. One is that you were raped by your uncle Clemente and the other one that your uncle got angry and struck your private part with the handle of the umbrella, which happened first? A: The first incident was when I was raped.

A:

It happened on December 21, Your Honor.

COURT: You mean both incidents happened in the same day. A: Yes, Your Honor.[14]

Even the admission of complainant that she was told by her aunt and the DSWD personnel to tell the court that she was raped would not serve appellants cause. By prodding her to tell the court that she was raped, they were merely encouraging her to tell what truly happened. There is no reason for them to make Evelyn lie. Neither are we convinced by appellants assertion that the rape charge could have been motivated by the ill feeling which his wife and her relatives have against him. No person in her right mind would stoop so low as to subject her own niece to the hardships and shame concomitant to a rape prosecution, especially if the one accused is the girls own uncle, just to assuage her own hurt feelings. It is unnatural for a relative to use her own kin as an engine of malice and sacrifice her to public ridicule if she, in fact, has not been motivated by an honest desire to have the culprit punished. The insistence of appellant that his wife fabricated the rape charges because he had a lover is not supported by the evidence. All told, we are morally convinced that appellant is guilty of raping Evelyn. However, we are unable to agree with the imposition of the death penalty. As stated in appellants brief, the trial court erred in appreciating the relationship between appellant and complainant as a basis for the imposition of the death penalty. Said relationship was not alleged in the information. In order to warrant the death penalty, the information must allege the qualifying and modifying circumstance that would justify its imposition. Not only must the information allege the minority of the victim but it must also state the relationship of the offender to the offended party. [15]Otherwise, there would be a gross violation of the appellants constitutional right to due process, because he was not properly informed of the accusation against him. Neither is the imposition of the death penalty justified on the sole ground that a deadly weapon was used in the commission of the crime. Note that the penalty for rape when attended by the aggravating circumstance of with the use of a deadly weapon is reclusion perpetua to death.[16] Hence, the mere presence of this aggravating circumstance does not automatically entail the imposition of the death penalty. The imposition of the death penalty in those cases where the law provides for a penalty ranging from reclusion perpetua to death does not give the trial court an unfettered but a guided discretion in the imposition of capital punishment.[17] The Court must apply the second paragraph of Article 63 of the Revised Penal Code which reads: xxx 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. xxx

COURT: Did it happen on the same day or another day?

In the case at bar, no other aggravating nor any mitigating circumstance had been proved. Accordingly, the imposable penalty is reclusion perpetua, the lesser penalty. Anent the damages awarded, we find that slight modifications are called for. While the award of P50,000 as moral damages is warranted, there is a need to increase the civil indemnity to P50,000 conformably with prevailing jurisprudence.[18] Exemplary damages, pursuant to current jurisprudence, must also be awarded to the victim in the amount of P25,000. WHEREFORE, the decision of the trial court finding accused-appellant Clemente Dayna guilty of rape with the use of a deadly weapon is AFFIRMED with the MODIFICATION that he is sentenced to suffer the penalty of reclusion perpetua, and ordered to pay the offended party P50,000 as civil indemnity, P50,000 as moral damages, and P25,000 as exemplary damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

of the principal penalty which the herein petitioner has to serve under his conviction in the 17 cases in question is threefold of 6 months and 1 day, or 18 months and 3 days, it being understood that he shall be required to pay to the offended parties with the indemnity as stated with subsidiary imprisonment in case of insolvency which shall not exceed one third of the principal penalty. Assuming that the petitioner will not be able to pay the indemnity, the maximum duration of his imprisonment shall be 18 months and 3 days of principal penalty plus 6 months and 1 day of subsidiary imprisonment, or a total of 2 years and 4 days. Petition denied. G.R. No. L-3215 October 6, 1949

ALONSO BAGTAS Y ALEJANDRO, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Meliton G. Soliman for respondent.

Case No. 190 Bagtas Vs. Director of Prisons 84 Phil. 692 October 6,1949

OZAETA, J.: This is a petition for habeas corpus based upon the following facts: On various dates between February 18 and May 14, 1948, the petitioner was convicted of estafa in seventeen criminal cases and sentenced by final judgments of the Court of First Instance of Manila to an aggregate penalty of 6 years, 4 months, and 26 days of imprisonment, to indemnify the offended parties invarious sums aggregating P43,436.45, with subsidiary imprisonment in case of insolvency in each case, and to pay the costs. The most severe of the seventeen sentences against the petitioner was 6 months and 1 day of prison correcional plus an indemnify of P8,000, with subsidiary imprisonment in case of insolvency, and the costs. He commenced to serve these sentences on February 18, 1948. The petitioner contends: (a) That under section 70 of the Revised Penal Code the maximum duration of his sentence cannot exceed threefold the length of time corresponding to the most severe of the penalties imposed upon him, that is to say, 18 months and 3 days; (b) That the application of the threefold rule does not preclude his enjoyment of the deduction from his sentenced of 5 days for each month of good behavior as provided in paragraph 1 of article 97 of the Revised Penal Code; (c) That which such deduction his aggregate penalty should be only 15 months and 3 days, and that therefore he should have been discharge from custody on June 3, 1949; and (d) That the subsidiary imprisonment should be eliminated because article 70 provides that "no other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said

FACTS: The petitioner Alonzo Bagtas Y Alejandrino was convicted of estafa in seventeen criminal cases, sometimes between February 18 and May 14,1948. He was sentenced by final judgments of the Court of the First Instance of Manila to an aggregate penalty of 6 years, 4 months and 26 days of imprisonment and to indemnify the sum of P 43,436.45 with the subsidiary imprisonment in case of insolvency in each case and to pay the cost. The petitioner contended about the sentence. ISSUE: Whether or not the subsidiary imprisonment should be eliminated from the penalty imposed upon the petitioner as reduced to thrice the duration of the gravest penalty imposed on him in accordance with article 70. RULING: We hold that the correct rule is to multiply the highest principal penalty by 3 and the result will be the aggregate principal penalty which the prisoner has to serve, plus the payment of all the indemnities which he has been sentenced to pay, with or without subsidiary imprisonment depending upon whether or not the principal penalty exceeds 6 years. Applying that the rule to the instant case, we find that the maximum duration

maximum period." 1. We sustain petitioners contention (a) and (b) above set forth upon the threefold rule provided in article 70 of the Revised Penal Code, as amended by section 2 of Commonwealth Act No. 217, and the decisions of this court in numerous cases. (People vs. Garalde, 50 Phil., 823; Torres vs. Superintendent of San Ramon Prison and Penal Farm, 58 Phil., 847, and cases therein cited.) 2. The important question to decide here is whether the subsidiary imprisonment should be eliminated from the penalty imposed upon the petitioner as reduced to thrice the duration of the gravest penalty imposed on him in accordance with article 70. The pertinent provisions of said article reads as follows: Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said maximum period. Article 100 says that every person criminally liable for a felony is also civilly liable. Article 38 and 39 provide as follows: ART. 38. Pecuniary LiabilitiesOrder of Payment. In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following orders: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The costs of the proceedings. ART. 39. Subsidiary Penalty. If the convict has no property with which to meet the pecuniary liabilities mentioned in paragraphs 1st, 2nd, and 3rd of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each 2 pesos and 50 centavos, subject to the following rules: 1. If the principal penalty imposed be prison correcional or arresto and fine, he shall remain under confinement until his fine and pecuniary liabilities referred in the preceding paragraph are satisfied, but his subsidiary shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony.lawphi1.nt

3. When the principal penalty imposed is higher than prison coreccional no subsidiary imprisonment shall be imposed upon the culprit. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him from reparation of the damage caused, nor from indemnification for the consequential damages in case his financial circumstances should improve; but be shall be relieved from pecuniary liability as to the fine. In the case of People vs. Garalde, supra, the accused was sentenced in several cases for the crime of estafa thru falsification of commercial documents, and his aggregate penalty was reduced to threefold the most severe of the penalties, which was 8 years and 1 day of prision mayor. The judgment in that case contained the following proviso: "Provided, however, that in case of insolvency, by analogy, he is not to suffer subsidiary imprisonment, since his imprisonment would be in excess of thrice the duration of the gravest penalty imposed on him." That judgment is invoked by the petitioner herein in support of his contention that he should not be made to suffer subsidiary imprisonment. It will be noted, however, that in that case the principal penalty imposed was higher than prision correcional, and therefore the accused was exempt from subsidiary imprisonment in accordance with paragraph 3 of article 39 hereinabove quoted. That, in our opinion, should have been the reason stated by the court in that case for exempting the accused from subsidiary imprisonment. Subsidiary imprisonment forms part of the penalty and its imposition is required by article 39 in case of insolvency of the accused to meet the pecuniary liabilities mentioned in the first three paragraphs of article 38; it cannot be eliminated under article 70 so long as the principal penalty is not higher than 6 years of imprisonment. The provision of article 70 that no other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said maximum period, simply means that the convict shall not severe the excess over the maximum of threefold the most severe penalty. For instance, if the aggregate of the principal penalties is six years and that is reduced to two years under the threefold rule of article 70, he shall not be required to serve the remaining four years. In the case of Jose Arlinda vs. Director of Prisons, G. R. No. 47326, this court, by a resolution dated March 18, 1940, held that the contention of the petitioner that in applying the threefold rule the court should not have taken into account the indemnity of P498 or its corresponding subsidiary imprisonment was without merit, "for an indemnity, to all intents and purposes, is considered a penalty, although pecuniary in character, in Title Three of the Revised Penal Code, so much so that it is reducible in terms of imprisonment at the rate of one day for each 2 pesos and 50 centavos should the offender turn out to be insolvent (article 39, Revised Penal Code); that, moreover, the indemnity which a person is sentenced to pay forms an integral part of the penalty, it being expressly provided by article 100 of the Revised Penal Code that every person criminally liable for a felony is also civilly

liable"; that, finally, article 70 of the Revised Penal Code, as amended by Commonwealth Act No. 217, in limiting the prisoner's penalty to not more than threefold the length of the most severe penalty imposed upon him, makes no distinction between the principal penalty and subsidiary imprisonment." We note, however, that in the case just above cited the highest penalty which formed the basis of the computation under the threefold rule was 4 years, 2 months, and 1 day of imprisonment plus an indemnity in terms or subsidiary imprisonment, namely, 6 months and 19 days, to the principal penalty of 4 years, 2 months, and 1 day and multiplied the sum by 3, with the result that petitioner's aggregate penalty was fixed at 14 years and 2 months of imprisonment, instead of multiplying the principal penalty (without the subsidiary imprisonment) by 3, and requiring the convict to pay the indemnify, for which he should not have been made to suffer subsidiary imprisonment in case of insolvency in view of the fact that the aggregate of the principal penalties as reduced under article 70 exceeded 6 years of imprisonment to the principal penalty at the outset for the purpose of applying the threefold rule, because the imposition of subsidiary imprisonment is conditioned on the insolvency of the convict and the latter is required to serve it only when he fails or is unable to pay the indemnity. We hold that the correct rule is to multiply the highest principal penalty by 3 and the result will be the aggregate principal penalty which the prisoner has to serve, plus the payment of all the indemnities which he has been sentenced to pay, with or without subsidiary imprisonment depending upon whether or not the principal penalty exceeds 6 years. Applying that rule to the instant case, we find that the maximum duration of the principal penalty which the herein petitioner has to serve under his conviction in the 17 cases in question is threefold of 6 months and 1 day, or 18 months and 3 days, it being understood that he shall be required to pay to the offended parties the indemnities aggregating P43,436.45, with subsidiary imprisonment in case of insolvency which shall not exceed one third of the principal penalty. Assuming that the petitioner will not be able to pay the indemnify, the maximum duration of his imprisonment shall be 18 months and 1 day of subsidiary imprisonment, or a total of 2 years and 4 days. It appearing that the petitioner has not yet served his sentence as above reduced, even with good conduct time allowance, the petition is denied, without any finding as to costs. Moran, C.J., Feria, Bengzon, Tuason, Montemayor, Reyes and Torres, JJ., concur.