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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.
PER CURIAM, J .:
This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2746,
whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as
charged in the information, and is sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000
and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.
Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the honorable Buenaventura Ocampo who, after
the submission of the evidence of the prosecution and the defense, rendered judgment as above stated.
In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficiofor the accused moved that the mental
condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in
order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital,
there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of
medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the
heading "Formulation and Diagnosis," at pages 13 and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since admission. There was not a single moment during his whole 24 hours daily, that
he was not under observation.
The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narcosynthesis. That
the narco-synthesis was successful was checked up the day after the test. The narco-synthesis proved not only reveal any conflict or complex
that may explain a delusional or hallucinatory motive behind the act.
Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligent, always
able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner
or form.
His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that
preceded the act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as
in this case, the commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being
provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a
seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches.
All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the
consequences of his acts.
In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which
in Psychiatry is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to
give his opinion on the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the date in
question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find
that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case
against this accused. Those facts may be stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political group, has voted for the defeated
candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth
and subsequently President of the President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged
failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated
when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called
"parity" measure. Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity presented itself on the night of March
10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas,
accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform
erected for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the advantages to be gained by the
Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of
two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He
had likewise been weighing the chances of killing President Roxas, either by going to Malacaan, or following his intended victim in the latter's trips to
provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to
carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with
their pervious understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity"
meeting held there. On account of its materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation
(Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and
nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not have hesitated either ton sacrifice it
for the sake of a principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering.
Their deeds bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded
them with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons
he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not
give up my life too if only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. I t matters not if others will
curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the
afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of
the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on
which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his
speech, was being congratulated by Ambassador Romulo and was about to leave the platform.
General Castaeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of mind, kicked it away from the
platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least harm; and, covering the
President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of
persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade
had seriously injured Simeon Varela (or Barrela ) who died on the following day as the result of mortal wounds caused by the fragments of the
grenade (Exhibits F and F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one
spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a
barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him
and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but
some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City
Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person
with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten years and had
seen each other in the plaza a few moments previous to the explosion.
The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan
Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object
which exploded and whom Garcia tried to hold when he was running away.
During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing
the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so called last will quoted above and marked Exhibit B,
which was then unsigned by him and subsequently signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the
presence of witnesses he signed a statement which contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who
investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations
and made by him on the witness stand during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the trial court, namely: first, "in finding
the appellant guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and multiple
frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused";
and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of
crime."
The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any shadow of doubt that, when Guillen
attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully
well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons
who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to
carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that
he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to killing the President, in
view of the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In other word, although it was
not his main intention to kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main purpose of killing
the President.
The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the
death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he
should be sentenced to the corresponding penalties for the different felonies committed, the sum total of which shall not exceed three times the penalty
to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences
of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony (delito)
although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it
being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be
qualified as imprudence it is necessary that either malice nor intention to cause injury should intervene; where such intention exists, the act should
qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced.'
(Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity
of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se
retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye
la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion
en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia temeraria? La Sala de lo
Criminal de la Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un ao de
prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por haberse
ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de
imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del
articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de
asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el
antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del articulo muy
principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period.
We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of
article 48 because by a single act, that a throwing highly explosive hand grenade at President Roxas, the accused committed two grave felonies,
namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang were the injured parties.
The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabug-at, supra, this court held that the
qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to
kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the
same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account when the person whom the
defendant proposed to kill was different from the one who became his victim.
There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby
commencing the commission of a felony by over acts, but he did not succeed in assassinating him "by reason of some cause or accident other than his
own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and
not frustrated murder.
In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of article 148 of the Revised Penal Code,
the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the
execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official
capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with the
commission of said offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President,
was attended by the various aggravating circumstances alleged in the information, without any mitigating circumstance. But we do not deem it necessary
to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the
most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporalin its maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove
narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall
be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court
may fix within 30 days from the date the record shall have been remanded. It is so ordered.



G.R. No. L-32477, People v. Aposaga and Monte, 108 SCRA 574






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
October 30, 1981
G.R. No. L-32477
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO APOSAGA and CONSTANCIO MONTE, accused-appellants.
MAKASIAR, J.:Automatic review of the decision dated April 28, 1969 of the Court of First Instance of South Cotabato, Branch I, in Criminal Case No.
1625 for murder, imposing the death penalty on accused-appellants Francisco Aposaga and Constancio Monte for the murder of Atty. Jose Barranda.
Makasiar, J .:
Automatic review of the decision dated April 28, 1969 of the Court of First Instance of South Cotabato, Branch I, in Criminal Case No. 1625 for murder,
imposing the death penalty on accused-appellants Francisco Aposaga and Constancio Monte for the murder of Atty. Jose Barranda.
The victim, who was popularly called "Attorney", was a law practitioner in Cotabato and Agusan. At the time of his death, he lived in his 36-hectare farm
at Palkan, Polomolok, South Cotabato, with his common-law wife Gloria Salongcong and their four children namely, Ruth, Samuel, Ester and Jose, Jr.
Gloria had four other children by a previous liaison, namely, Fe, Noe, Felomena and Fely, all surnamed Cabrera, who were likewise staying with the
couple at their house on the said farm. In the same barrio live the two accused-appellants as well as Sotera Salongcong Resaba a sister of Gloria,
whose house near the highway is about 1/2 kilometers away from the Barrandas', Jesus Francisco, an ousted ex-tenant of "Attorney" and a nephew of
Gloria and Sotera, whose house is also along the highway; and Doroteo Estorque, father of the common-law wife of accused-appellant Aposaga.
Monte was recruited by the deceased from his former employment as security guard of Lianga Industries, Inc. in Tumbis ,Barobo, Surigao del Sur, to be
the administrator of his farm. He arrived in Polomolok with his family in July, 1965 and stayed in a house owned by the Barrandas near their own.
From the house of the Barrandas there were three then as now possible routes to the provincial highway, one passing through the house of Sotera and
Jesus on the General Santos side, another through the house of Aposaga and Estorque on the Marbel side, and the third was a short cut through a
small road, to the highway.
The deceased was last seen alive in the morning of December 13, 1965. lie had summoned Monte to their house at about six o'clock that morning, and
they conferred about the farm. Afterwards, Monte had breakfast with "Attorney's" family before leaving the house. "Attorney's also left shortly thereafter
to go to Dadiangas, taking the second route (Marbel side) described above. Gloria Salongcong also left the house one minute later for Dadiangas, taking
the first route on the General Santos side, to pass by the house of her sister Sotera to fetch her daughter Fe, who was then staying with Sotera, to bring
her to Dadiangas for her medical examination.
While walking on the trail to the highway, Atty. Barranda was chased by 3 men armed with bolos or knives, who acted concertedly in hacking or stabbing
the victim to death. His lifeless body was later buried inside a dry well, while his portfolio and personal papers were buried around 300 meters away from
the body,
Nothing was mentioned or heard about the death of Atty. Barranda until on January 20, 1966, Pio Francisco came to Barrio Palkan to barter fish and visit
his son Jesus. The latter told his father that he could hardly sleep at night because he was being "abused" or raided by Aposaga, Monte and alias Calbo,
and that these three had killed the attorney. Pio verified the matter from Sotera Salongcong, who confirmed the killing of the deceased. He decided to
report to the authorities, but waited for the picture of accused Aposaga in the possession of Gloria Salongcong before he made a report.
Pio first mentioned the matter to a Sgt.Edoria of the Philippine Constabulary when he saw him in front of their house on January 30, 1966 or 48 days
thereafter. Sgt. Edoria immediately brought him, together with Felomena Cabrera, to the office of Sgt. Ricardo Vargas of the 101st PC Company. They
showed Sgt. Vargas a newspaper clipping about a certain Francisco Lozada, who was wanted by the authorities with a prize of P10,000.00 on his head
for a series of robbery and murder cases After being told that the wanted man was in barrio Palkan, Sgt. Vargas lost no time in going to the said barrio,
together with other PC soldiers. When they reached the said barrio, Felomena pointed to them the house of Aposaga. But when he confronted Aposaga,
he found out that his name was Francisco Aposaga and not Francisco Lozada, and that his physical features did not tally with the description in the
newspaper clipping. He therefore returned to headquarters without making an arrest.
At noon of the same day, Felomena Cabrera came to see him again, this time with Jesus Francisco, informing him that Aposaga was the killer of Atty.
Barranda. It was only then that he learned of the murder of Atty. Barranda. He therefore returned to Palkan with 2 other PC officers to conduct an
investigation. when they arrived there, Aposaga was no longer in his house, having left for Norala to harvest palay, according to his wife. Nevertheless,
he proceeded with his investigation.
On February 1, 1966 he took the statements of Constancio Monte (Exh. "k", pp. 19-20, Folder of Exh. Vol. 1) and his wife, Bienvenida
Ferrer Monte (Exh. "M", pp. 24-25, Folder of Exh. Vol. I), both pointing to Aposaga and Calbo as the killers, and of Noe Cabrera (Exh. "I ", p. 1, Folder of
Exh. Vol. 11), naming Aposaga, Monte and Calbo as the culprits. Thereafter he filed a motion to exhume the body of the deceased (Exh. "D", p. 10,
Folder of Exh. Vol. I).
The examination was conducted on February 2, 1966 in the presence of Dr. Teodoro J. Reyes, municipal health officer of Polomolok, the PC provincial
commander, the chief of police, and members of the Rural Health Unit of Polomolok. They found the already decomposing body of Atty. Barranda, which
was Identified through the Identifying information furnished by his wife, like the dentures, the clothes he was wearing, his height and built, as well as the
I.D. and personal papers in his wallet and other things found on his body. After the exhumation, they also unearthed the valise or portfolio of the
deceased which was buried about 300 meters away from the body and 15 meters from the house of Jesus Francisco. The spot was pointed to them by
Jesus Francisco himself who admittedly buried the same. The valise contained the raincoat and other personal things of the deceased. They also
recovered a cellophane bag containing some legal documents and land titles purportedly removed from the bag of the deceased. On the basis of the
above, a criminal complaint dated February 1, 1966 was filed against Francisco Aposaga, alias Calbo, alias Pedoy, Sotera Salongcong and
Constancio Monte (p. 5, CFI rec.).
On February 14, 1966, after more statements were taken, the complaint was amended (p. 4, CFI, rec.), such that the name of alias Calbo was indicated
as Alfredo Villanueva, that of alias Pedoy as Jesus Francisco, and Gloria Salongcong was included among the accused. Of the six accused named in
the amended complaint Aposaga Monte, Villanueva, alias Calbo, Francisco, alias Pedoy, Sotera Salongcong and Gloria Salongcong), Villanueva
remained at large and never faced trial; Gloria Salongcong was ordered excluded from the complaint on June 10, 1966 for insufficiency of evidence (p.
29, CFI rec.); and Jesus Francisco alias Pedoy was likewise dropped from the complaint on January 10, 1967 upon motion of his counsel (pp. 45-48,
CFI rec.) for the purpose of utilizing him as a state witness (p. 54, CFI rec.); and Sotera Salongcong was also excluded from the complaint upon her own
motion (pp. 5051, CFI rec.) on January 27, 1967. The warrant issued for Gloria Salongcong was therefore recalled, while Francisco and Sotera, who had
been under detention, were ordered released. On August 4, 1967, Jesus Francisco was ordered re-included in the complaint and a new warrant issued
for his arrest (p. 76, CFI rec.). Yet, despite his appearance in court as a witness for the prosecution, he was never re-arrested. Thus, only Aposaga
and Monte faced trial after they waived their right to the second stage of the preliminary investigation (p. 79, CFI rec.), and an information was filed
against them on April 24, 1968 (p. 81, CFI rec.).
After trial, the trial court in its decision (pp. 136-179, CFI rec.) dated April 28, 1969, found the two accused guilty of murder and sentenced them to the
supreme penalty of death and to indemnify the heirs of the deceased in the amount of ?12,000.00 as well as to pay the costs.
The trial court noted that the evidence for the prosecution suffered from many flaws and some inconsistencies (p. 31, rec.). Nevertheless, it gave
credence to the testimonies of two alleged eyewitnesses and other corroborative witnesses for the state.
Noe Cabrera, 13 years old, student, and a resident of Pag-asa, General Santos City, testified that at about six o'clock in the morning of December 13,
1965, while he was riding his carabao, he saw his stepfather, Atty. Barranda, walking towards the highway. Paran (Francisco Aposaga) and Calbo
(Alfredo or Jessie Villanueva) ran after him. All at once Paran hacked him in the neck while Calbo thrust his knife at the victim. The deceased
("Attorney") was trying to parry their blows with the sweater he was carrying. Then Constancio Monte arrived and also hacked the victim. When the
victim stumbled and fell, Monte rode on him and thrust his knife through the victim's stomach. He was just about 25 meters away from them. Later, the
two dragged the victim's body to the cogonal area, after which they approached the witness (Noe), and Paran threatened him that if he should squeal,
he and his mother, sisters and brothers were going to be killed. Monte got the bag carried by the deceased and they left towards the direction of the
highway. The witness went home to eat. His mother was not in the house yet, having left earlier for Dadiangas.
When his mother arrived home in the afternoon, she asked him if he had seen his stepfather, to which he answered no. She therefore asked him to
accompany her in looking around for the victim. They went to the house of Dorot (Doroteo Estorque) where they saw Dorot, Monte, Paran and Calbo,
the wife of Monte, and others, drinking. His mother made several inquiries about his stepfather.
The wife of Dorot said that Attorney rode a yellow bus going to Marbel. Dorot and his son Vicente also gave the same information. She asked other
persons, who gave negative information. When they went home, Monte and his wife came also. His mother told them that she was going to San
Francisco (Agusan) to look for Attorney. But Monte advised her not to go any more because there were three persons who came to fetch him to go to
Davao. Noe went downstairs. Monte followed him to borrow his sledge, which he lent to him. Afterwards, he brought his horse to Crossing Palkan to
drink. When he was returning home, he saw Vicente, Calbo and Paran Vicente was riding the carabao while Calbo and Paran were following the sledge,
where the body of their stepfather was loaded. They were going towards barrioPalkan. He let his horse run and headed for home. He did not tell his
mother or his brothers and sisters about the attack on Ms stepfather because he was afraid. It was only when he was brought to the PC headquarters in
Dadiangas that he talked of the incident for there he was no longer afraid (pp. 5-63, TSN).
Felomena Cabrera, 16 years old, student and residing at Pag-asa, Lagao, General Santos City, testified that she was living with her mother, stepfather
(the victim), brothers and sisters at their house in crossing Palkan on December 13, 1965. In the morning of the said date, her stepfather
summoned Monte to their house, and the two talked for sometime. Thereafter, Monte ate breakfast with them before returning to his house. When he
had gone, Attorney prepared to leave for Dadiangas. He left via their kitchen towards the west to the national highway. One minute later, her mother also
left, leaving her to care for her younger brother. She cooked soup rice. While cooking, she went to the balcony to get her younger brother. From there
she saw Monte running towards the direction of Attorney. She followed him with her eyes, and saw him hacking her stepfather with two others, namely
Aposaga and alias Calbo. She went to the house of Monte and asked Monte's wife, Bienvenida, why they killed Attorney. Bienvenida answered
"because the attorney is a bad man". The two of them went down towards the road. They met Monte who warned them not to reveal, otherwise they will
kill first Felomena's mother. She just went home and fed her younger brother.
When her mother arrived home that afternoon, she (mother) asked if the Attorney had returned home, to which she answered in the negative. Her
mother then asked Noe to accompany her in looking for the Attorney. The two went out and were away for more than an hour, while she stayed in the
house to take care of her younger brother.
Drawing a sketch, the witness explained the relative position of their house with those of Dorot (D. Estorque), Sotera and Monte, and the national
highway, as well as the three (3) possible routes from their house to the highway (pp. 65-84, TSN).
On cross-examination, the witness indicated on the sketch prepared by her, the specific spot where she saw her stepfather being hacked, and where
she first sawMonte running. She also described the attacks on her stepfather how Aposaga hacked him first while he was walking, followed by the
thrusting by Monte. She averred that when she later talked with her brother Noe, they agreed not to tell anyone about what they saw; otherwise they will
all be killed starting with their mother (pp. 85-135, TSN).
Dr. Teodoro Reyes, 51 years old, Municipal Health Officer of Polomolok, South Cotabato, testified that he has been the Municipal health Officer of
Polomolok for more than 10 years. On February 2, 1966, he was fetched by a policeman of Polomolok to exhume the body of Atty. Jose Barranda. He
went to a field about 500 meters north of the residence of Atty. Barranda, together with a few policemen and PC soldiers. they found the already
decomposing body buried in a well 5 feet deep and about 3 meters in diameter, covered with bloodstained newspapers, a jacket and soil about one foot
deep. He established the Identity of the cadaver as that of Atty. Barranda from the description furnished by Mrs. Barranda (Gloria Salongcong). Besides,
he knew Atty. Barranda when he was still alive as he had been handling cases in Polomolok. When he examined the body, he found 4 fatal wounds, 3 of
which were caused by sharp-bladed instruments and one by mauling. His findings are embodied in his medico-legal post-mortem certificate (pp. 2-4,
Folder of Exhibits, Vol. 1), as follows:
DIRECT CAUSES OF DEATH OF THE DECEASED:
Under this, are other pertinent findings on this cadaver and its clothings which have bearings on the injuries sustained or direct causes of death. Premise
or statement of the General Condition of the Cadaver during time of examination: The cadaver although in a state of much decay there are still some or
big portions of the skin left specially on the chest, back and abdomen; big portions of muscles much softened and some parts melting; big portions of
abdominal viscerae are inside and soft; and semi-melted. So also is the condition in the chest,
(a) One stab wound of the right chest, entering into the interspace between the 5th and 6th costal cartilage. This stab wound coincides with the cut
through the polo shirt of the cadaver and that of his camiseta T-shirt he was wearing. The cut is about four (4) cm. wide, going inside the chest to a
depth of at least five (5) inches. The direction is towards the back. The medial edge of the wound is 2-1/2 cm. lateral to the right lateral border of the
typhoid. The width of the cut is parallel to the direction of the rib. Wide area of old blood stain can be seen on the clothing over the chest, also some part
of the upper abdomen. This is a fatal wound.
(b) A big cross-wise cut of the left upper abdomen, with a length of about five (5) inches, as can be seen on the intact part of skin of the cadaver, and cut
portions of loops of intestine inside. The medial edge of this cut or wound starts from about the middle portion of the front part of the abdomen going
lateralwards to the left to a length of about five (5) inches. This is a fatal wound.
Remarks: There is no evidence of cut on the clothing, for we found that all the clothings on the left side of the body were lifted or raised that might have
escaped the cutting.
(c) Fracture of the left part of the skull:
Description is divided into the upper portion of the skull and that of the lower mandible or jaw. Upper portion of the skull:
There is a rounded depressed fracture of the bone beneath the left upper gum, about a ten centavo coin size. Its medial border is about 1-1/2 inches
distant from the center of the upper gum. Also, the zygomatic process of the left temporal bone is broken (fractured) and detached. That completely
broken piece is still attached only by a ligament.
Lower portion of the skull or lower jaw: The neck of the head (the posterior elevation for articulation) of the left mandible or left side of the lower jaw is
completely fractured, and the head portion is missing. The fractured head is missing.
The picture taken for this is herewith attached. The back part of this picture is marked 'C'.
Remarks: I honestly believe the deceased was mauled on the left face so hard that caused the fatal fracture. The rounded depressed fracture is most
probably due to the elevated portion or the nail of the hard object used for mauling. This is fatal The brain cannot escape big injury.
(d) A big cut on the apple green jacket the cadaver is covered (with) [picture taken of said jacket herewith attached. The back part of the picture is
marked "D")
Description: There is about 6-1/2 inch cut of the right shoulder of this jacket going medial-ward and more on its back portion. The inner shirts on this part
are stained with old blood stains. The jacket is somewhat loose for the cadaver.
Remarks: I strongly and sincerely believe that this cut involved the lower part and the base of the right side of the neck. It is a big cut. This is a fatal
wound.
With the big cut on the jacket the cadaver is covered on its right shoulder area and reaching up to the base of the right side of the collar, with the
corresponding cuts on the inner shirts the cadaver is wearing, but no evidence of cut could be found on the bones as scapula and right clavicle, simply
means that the big cut involved only the muscles, big blood vessels and vital nerves of the right side of the lower part of the neck and shoulder area near
that side of the neck-in short, the soft tissues were cut, without cutting the bones (called the hard tissue).
Conclusion: (a) With all honesty and sincerity, it is very definite that the cadaver now exhumed is Atty. JOSE BARRANDA'S.
(b) The causes of death are mentioned under the item
DIRECT CAUSES OF DEATH OF THE DECEASED.
(c) The causes of death are purely foul play or murder. All the cuts are due to sharp-bladed instruments; the fracture on the face due to blunt hard object
with hard protection on it.
xxx xxx xxx
According to the doctor, the wound described in paragraph (a) was a thrust wound inflicted while the victim was standing in front of the assailant (p. 219,
TSN); the one under paragraph (b) could have been inflicted while the victim was lying down; the other one under paragraph (c) could have been caused
by mauling while the victim was lying down; and the wound in paragraph (d) was inflicted while the victim was standing, with the assailant at the back of
the deceased, probably ahead of the other wounds (p. 222, TSN).
Sgt. Ricardo Vargas of the Philippine Constabulary assigned to the 27th Traffic Team, 45 years old, and residing at Cotabato City, declared (pp. 262-
320, TSN) that in 1966 he was assigned to the 101st PC Company at General Santos, Cotabato, having been transferred thereto since December 1,
1965. He did not know the accused before, and he met them only on January 30, 1966. He first met Francisco Aposaga on said date when Felomena
Cabrera came to his office with Pio Francisco and Sgt. Edoria to report the presence in their barrio of a certain Francisco Lozada who was wanted by the
police with a prize of P10,000.00 on his head for a series of robbery and murder cases. After being shown a newspaper clipping with a picture and
description of Lozada, he went to Palkan, Polomolok, South Cotabato with 2 other PC soldiers to verify the report. The house of Aposaga was pointed to
them by Felomena when they were about 300 meters therefrom. Proceeding to said house, they called for Francisco Lozada, but it was Francisco
Aposaga who came and Identified himself as Aposaga, not Lozada. When Sgt. Vargas compared the photo and description of Lozada from the
newspaper clipping to the person of Aposaga, the Description did not tally, as there was no mole, scar or tattoos at the back of his body. As a result,
they returned to the PC headquarters without making an arrest.
After lunch on the same day, Felomena Cabrera showed up again at the PC headquarters with Jesus Francisco, the son of Pio. Jesus was ask; 'ng him
why he released Aposaga when he was the killer of Atty. Barranda. That was the only time he learned of the death of Atty. Barranda. He lost no time in
returning to Palkan. But when he arrived there, Aposaga was no longer in his house. His wife informed him that Aposaga went to Norala to harvest
palay. He (Sgt. Vargas) proceeded to the house of Monte, who informed him that Aposaga killed Attorney in the morning of December 13 (1965). Sgt.
Vargas invited Monte and his wife to the headquarters for investigation. While there, they gave corroborative statements to the effect that Aposaga and a
companion known as Calbo hacked and killed Atty. Barranda upon inducement by Sotera Salongcong who paid them P 200.00 (Exhs. "K" and "L", pp.
19-21, Folder of Exh. Vol. 1). He also took the statements of Noe and Felomena Cabrera, then filed a motion to exhume the body, which was actually
done by the municipal health officer in his presence as well as in the presence of their commanding officer, Capt. Adriano Bulatao the Polomolok chief of
police and some other persons.
Jesus Francisco, 36 years old, farmer and resident of Marbel Crossing, Tampacan, Tupi South Cotabato, declared that on December 13, 1965, he was
in his house near Crossing Awas in Polomolok, South Cotabato. Constancio Monte passed by his house that morning, then left in the direction going to
Sulit. At about 6:30 a.m., he went to his sanguta (where tuba is extracted). He met Sotera Salongcong, who was going to Dadiangas. She gave him P
200.00 from Francisco Mendez, telling him to deliver it to Aposaga, which he did at the latter's house at about 8:00 or 9:00 o'clock. Aposaga was then
with Constancio Monte and Wilfredo Villanueva, alias Calbo. After that he saw these three again at about 11:00 a.m. near their house which was near
his sanguta. The three told him that Atty. Barranda was already dead, and gave him the bag of the Attorney with instructions to bury it. In the bag was a
cellophane folder containing papers and documents. He buried the bag in the land of Cestua and kept the papers in the cellophane under a banana tree.
These he did because the trio told him he will be killed if he didn't, which made him afraid. When he asked them why they killed the Attorney, their
answer was "Don't talk". He did not report the matter to the authorities because they had been threatening him with death if he did so (pp. 322-350,
TSN).
The statement of accused-appellant Monte (Exh. "K", pp. 17-18, Folder of Exhibits, Vol. I) on February 1, 1966, may be summarized as follows: that he
has been a tenant of Atty. Barranda since July 1965; that sometime in the morning of December 13, 1965, Atty. Barranda was hacked and killed by
Francisco Aposaga and a companion known to him only as Calbo; that Aposaga told him they were given P 200 by "Suterania" (Sotera) Salongcong;
that the latter hired them to kill Barranda because he had raped Fe Cabrera; that Fe Cabrera confirmed this raping to him; that the cadaver of Atty.
Barranda was thrown into a deep Japanese dug-out somewhere in the farm lot of Alfredo Acejo that Aposaga used a bolo while Calbo used a knife
(flamingo); that at the time of the killing, Barranda was carrying a leather bag (portfolio) containing land titles and records of cases he was handling; that
the said bag was given to Pedoy a nephew of Suterania (Sotera) Salongcong; and that the said bag was buried while the contents were wrapped in
cellophane and covered by banana leaves among banana plants near the house of Pedoy.
These allegations were mostly reiterated by Monte in Exhibit "L" (pp. 21-23, Folder of Exh. Vol. I ) In addition, he stated that the killing was plotted by his
family, as he accidentally learned when he overheard a conversation between Gloria and Suterania (Sotera) Salongcong where the latter was saying "If
in case somebody went up the house Gloria and the children will just go upstairs and they will not be disturbed because the purpose is just Atty.
Barranda" (sic).
The other prosecution witnesses were:
(1) Gloria Salongcong, the common-law wife of the deceased who narrated that the latter failed to appear at their appointed meeting in Dadiangas on
December 13, 1965, and that she and her son Noe went out to look for him upon her return to Palkan in the afternoon of the same day (pp. 137-173,
TSN).
(2) Pio Francisco, who learned of the slaying of the deceased from his son Jesus on January 20, 1966, and who first brought it to the attention of the
authorities on January 30, 1966 (pp. 187-205, TSN).
(3) Epifanio Doria, the PC sergeant who was first told by Pio Francisco about the killing, and who brought him to the PC headquarters for the actual
reporting (pp. 178-187, TSN).
(4) Sotera Salongcong, who narrated that a certain Francisco Mendez gave her P 200 for delivery to accused Aposaga without explaining what the
money was for, and who delivered it to Aposaga through Jesus Francisco without her asking for what purpose it was (pp. 230-260, TSN).
The theory of the defense is that the charge is a frame-up on the part of the victim's family, whose members plotted his murder, with Jesus Francisco as
the mastermind and alias Calbo the lone hatchetman. Testifying on their own behalf, both accused- appellants denied knowledge of and participation in
the commission of the crime, and maintained that they never knew of the death of the deceased until investigations were already under way some two to
four months thereafter.
The testimony of accused-appellant Aposaga, 27 years old, farmer and resident of Palkan, Polomolok, South Cotabato, dealt mainly in explaining about
his sudden departure from Palkan on January 30, 1966, the date the PC went to his house. He narrated that when Sgt. Vargas came to his house (the
date of which he could not remember), he was looking for Francisco Lozada. He informed Vargas that his name was Francisco Aposaga and not
Lozada. Vargas examined his body and was convinced that he was a different person. So Vargas left, but not before he told him that he was going to
Iloilo for a vacation. He proceeded to Norala (South Cotabato) that same afternoon. When he reached Norala, his aunt told him that his mother was sick
so he should proceed to Iloilo. Because of such information, he left Norala hurriedly, taking MV Legaspi at Cotabato City and disembarking in Iloilo. He
learned of the murder of Barranda 3 or 4 months later when his wife wrote him informing that he was wanted for the murder. He then went to the PC in
Iloilo, requesting for an escort to Mindanao as he was afraid he might be killed. But the PC in Iloilo could not provide him with any escort, so he stayed in
Iloilo. He visited the PC in Iloilo for about 5 times, until the PC from Polomolok came to get him. He admitted having been a tenant of the deceased, but
denied participation in his killing. He also denied having received P200.00 from Jesus Francisco. He did not know the person of alias Calbo.
On cross-examination, he stated that he threw away the letter of his wife when he went to the PC because he did not think it was important. He did not
know what was the company or organizational unit of the PC he visited in Iloilo, nor the name of its commanding officer. He stayed in Iloilo for 8 to 10
months.
His cousin, a certain Jose, who is married to his first cousin Clomia Viana fetched him at Palkan because his mother was ill. He had to go to Norala,
however, to inquire from his aunt, Paz Aposaga, how serious his mother was. His aunt told him in tears to go home to Iloilo because his mother was
serious, per information of the same Jose. He never received any letter from his parents, brother or sister or any relative from Iloilo asking him to go
home (pp. 440-462, TSN).
Defense witness Doroteo Estorque, father of the common-law wife of Aposaga, 58 years old, farmer, and resident of Crossing Palkan, Polomolok, South
Cotabato declared that on December 13, 1965, he and Aposaga were plowing in the farm lot of the deceased from 6:00 A.M. to 5:30 P.M., stopping only
for breakfast and lunch. There was no unusual incident that transpired on said date, except that in the morning he heard someone call "wait, wait" and
saw Gloria Salongcong coming down their house. At that time Aposaga was 30 meters behind him, also plowing. The place where they were plowing
was about 150 meters from the house of Barranda. He did not see Atty. Barranda that morning. He only learned about his death through the PC. He
knows that Atty. Barranda and Gloria Salongcong usually quarrelled about Gloria's children because the place he is working is near their house. On
cross-examination, he admitted having subscribed to an affidavit (Exh. "J", p. 16, Folder of Exhibits, Vol. 1) wherein he had stated that he could not see
Aposaga because of the tall talahibs, but he explained that such answer was wrong and his real answer was, "I cannot see him when he was covered by
talahibs but if we will be out from the talahibs I can see him" (P. 386, TSN).
Vicente Estorque, 20, married, son of Doroteo and brother-in-law of Aposaga and likewise residing at Crossing Palkan, Polomolok, South Cotabato,
corroborated his father's testimony about the whereabouts of Aposaga on December 13, 1965. He testified that on that day, he had been plowing from
10:00 A.M. with his father and brother-in-law Aposaga. In the afternoon he plowed from 2:00 to 5:00 P.M. Afterwards he met Vicente or Jesus Francisco
(Pedoy) on his way home. Francisco borrowed his sledge, so he had to carry his plow on his shoulder because he lent his sledge to Francisco. The
sledge was returned two hours later with bloodstains and with its bamboo breast missing. He could not, however, recover the missing part because
Francisco had been avoiding him. On questioning by the court, he stated that they did not go back to plow in that field any more (p. 407, TSN); in fact,
that land was never planted because Aposaga left for Panay (p. 409, TSN).
Accused-appellant Constancio Monte, 38 years old, farmer and resident of Crossing Palkan, Polomolok, South Cotabato, testified (pp. 463-525, TSN),
that he met Atty. Barranda when the latter was a lawyer of Lianga Industry in San Francisco, Agusan, where he used to work as guard of its bulldozer
department. In July of 1965, Atty. Barranda convinced him to go with him to Palkan, South Cotabato, to be the overseer of his 36-hectare farm, as a
condition of which he need not give any share of the harvest to Barranda as landowner but only to his wife, Gloria Salongcong. In addition, he (Monte)
will get 25% of the proceeds of the 18-hectare land in Matatum which was planted to potatoes and cabbage, plus P5.00 monthly per head of the
carabaos, horses and cattle he was supposed to care for. When he arrived with his family in Palkan in the same month, Atty. Barranda called for Sotera
Salongcong and Jesus Francisco, his erstwhile tenants, and told them that it was their last day asMonte was taking over. Atty. Barranda instructed him
(Monte) to get the carabao and plow from Jesus Francisco.
In the month of December, Fe Cabrera informed him that she was raped by Atty. Barranda. Sometime later, while he was under the Barranda's house to
fetch the cow, he overheard a conversation among Jesus Francisco, Sotera Salongcong and Gloria Salongcong, wherein Sotera was saying, "We better
have Attorney killed ... so that we can revenge of what he has done to your child who was being raped (sic).
Early one morning, about the second week of December, 1965 (he could not exactly remember the date), Barranda called for him to instruct him to take
care of the carabaos and cows because he was leaving for Agusan to become a judge. After their talk, he took breakfast with the Barranda family.
Thereafter, he brought the children Ruth, Fely, Samuel and Noe to his house upon instruction of Atty. Barranda. He went to the toril with Noe to tie the
carabao. While there, Noe told him that Atty. Barranda was leaving. At the same instance he heard someone shouting, "wait for me", and saw Jesus
Francisco running, followed by Calbo. He did not know who Calbo was, but Noe told him that he is from Polomolok. However, he did not know what
transpired afterwards as he did not look anymore. From the toril he could see Aposaga plowing with Doroteo Estorque. He stayed in the toril for about 30
minutes.
Monte admitted having gone to the PC headquarters for investigation and having executed an affidavit (Exh. "K", p. 19, Folder of Exhibits, Vol. 1); but
when he appeared before Judge Mirabueno (municipal court of Polomolok), he was made to sign by Sgt. Vargas although he told the judge that there
was an error. The error was that when he mentioned the name "Francisco" as the person who hacked and killed the deceased, he meant Jesus
Francisco and not Francisco Aposaga. However, since he had no lawyer then, he did not know how to go about the correction. It was only when
Francisco Aposaga, who is his friend, contacted his lawyer that he was accommodated in his defense by Atty. Velarde, as he had no money. As for the
second affidavit which he executed one week after (Exh. "L", P. 21, Folder of Exhibits, Vol. 1), he was made to sign the same without appearing before
Judge Mirabueno.
On cross-examination, he maintained that he did not know who is Pedoy whose name is mentioned in his affidavit as the nephew of Sotera Salongcong
to whom the killers gave the bag of Atty. Barranda. He denied having been asked the question and having given the answers found in his affidavits
referring to Aposaga. He did not know what he was signing as he does not know how to read.
Against this background, the trial court promulgated its aforementione d decision on April 28, 1969 and denied the defense's motion for reconsideration
and new trial on May 31, 1969 (p. 200, CFI rec.).
Hence, this appeal.
Appellants now raise only one issue that the prosecution failed to prove their guilt beyond reasonable doubt. They try to discredit the testimonies of the
prosecution witnesses, particularly those of the two eyewitnesses which, they claim, are corrupt, bias, unreliable and incompetent because of their
inherent improbabilities" pp. 86, rec.), as shown by the following circumstances:
A. As to Noe Cabrera
1. If Noe really witnessed the murder of his stepfather, why did he not shout for help (pp. 32-33, TSN)? Why did he not tell his mother about it when the
latter arrived home from Dadiangas and was asking about the victim (p. 35, TSN)? Why did he have to go with his mother around the barrio to look for
his stepfather if he knew - after having witnessed the killing - that his stepfather was dead (pp. 15-18, TSN)?
2. If he were really threatened by the culprits (p. 10, TSN) so as to produce fear in him, why did he have to go riding his horse by himself that evening of
the incident (p. 20, TSN)? Why did he consent to sleep in the house of Monte after the PC arrived to conduct the investigation (p. 23, TSN)? Why did he
continue to visit the houses ofMonte and Aposaga after December 13, 1965 (pp. 163-164, TSN)?
B. As to Felomena Cabrera
1. How could Felomena have witnessed the murder of her step- father from the kitchen of their house when, according to the PC investigator, Sgt.
Vargas, the place of the incident was not visible from the kitchen or balcony of the Barranda house because it was covered by banana hills, talahibs and
calamansi trees (pp. 301-302, TSN)?
2. Why did she not secretly tell her mother about the incident (p. 72, TSN)?
3. Why was her first report to the PC not about the murder of her stepfather but about the presence of a certain wanted man in their barrio (p. 264,
TSN)? Why did it take her 48 days to make such report?
WE find the above observations insufficient to warrant the exculpation of the appellants. While it is true that the testimonies of the two eyewitnesses may
have suffered flaws and inconsistencies, the same refer only to minor details which are not sufficient to destroy their credibility. Their actuations after
witnessing the commission of the crime (i.e., not shouting or running for help, not reporting earlier, etc.), do not indicate that they were not present when
the killing of their stepfather took place. Likewise, the testimony of the PC investigator that the place of the incident is not visible from the kitchen of the
victim's house, because of the presence of banana hills, talahibs and calamansi trees, cannot overcome the positive assertion of Felomena that she saw
her stepfather killed, especially so since the investigation took place about 50 days after the incident and conditions obtaining them may be different from
those at the time of the offense.
A closer scrutiny of their testimonies shows convincingly that they had indeed witnessed the commission of the crime. The only doubtful portion is their
allegation that they were threatened with death-with their mother the first to be killed-against revealing it. Because, even if there were such a threat, they
could have secretly revealed it to their mother who would certainly take steps to protect them. Besides, if the danger of the threat was real to them, they
should have stopped going to the houses of the accused, instead of maintaining normal relations with them after the incident; Felomena should not have
gone to the PC headquarters twice on January 30, 1966; and Noe should not have slept in the house of Monte after his family had gone to Dadiangas to
make the report,
These actuations are inconsistent with the reality of the threat. It is easier to believe that they discussed the incident with their mother but had to deny it
to protect her. The maxim "blood is thicker than water" must have prompted these two (2) eyewitnesses to insist that their mother did not know anything
about it. Otherwise, the involvement of their mother and other close relatives will be an undeniable conclusion.
Besides, the trial court, while noting the same flaws and inconsistencies, gave credence to the testimonies of the said eyewitnesses who, despite their
minority, the excitement generated by the court proceedings and the long and searching cross-examinations, firmly stuck to their testimonies which
pointed to the appellants and a companion known as Calbo as the killers of their stepfather. Time and time again WE have ruled that where the issue is
credibility of the witnesses, appellate courts will generally not disturb the findings of the trial judge, who heard the witnesses themselves and observed
their deportment and manner of testifying, unless he has plainly overlooked certain facts of substance and value that, if considered, might affect the
result of the case. This exception does not obtain here. (People vs, Laguisma 98 SCRA 69 [1980]; People vs. de la Cruz, 97 SCRA 386 [1980]; People
vs. Bautista y Aquino, 92 SCRA 465, 472 [1979]).
Furthermore, no motive was shown why the two eyewitnesses should testify against them falsely; hence, they must be telling the truth. (People vs.
Arevalo, 92 SCRA 207 [1979]; People vs. Lim 71 SCRA 249 [1976]).
The appellants likewise theorize that the prosecution witnesses Sotera Salongcong, Jesus Francisco and probably Gloria Salongcong must have plotted
against the life of the deceased. Sotera and Jesus harbor resentment against the victim for having ousted them from their tenancy in favor of Monte.
Besides, Sotera wanted to revenge the raping of her niece by the deceased. These are strong motives to do away with the victim, whereas the
appellants have no motive to kill him.
In the case of People vs. Veloso (92 SCRA 515, 524 [1979]), WE held that motive, as distinguished from criminal intent, is not an essential element of a
crime and hence, need not be proved for purposes of conviction. Motive is essential to conviction in murder cases only when there is doubt as to the
Identity of the culprit, something which does not obtain in this case (also People vs. Verzo, 21 SCRA 1403 [1967]; People vs. Caggauan 94 Phil.
188 [1953]).
The defense vainly tried to utilize the apparent involvement of the prosecution witnesses Gloria and Sotera Salongcong and Jesus Francisco in claiming
a frame-up and a scheme to lay the blame on the two (2) accused-appellants. While WE agree with the observation that these 3 witnesses are probably
involved in various ways and degrees, and their exclusion from the charge is questionable, WE cannot find any reason to believe that the appellants are
innocent as they pretend to be. As aptly held by the trial court, "that there were principals by induction in the commission of a crime who were not
prosecuted is no legal impediment to a finding of guilt of the principals by direct participation for the same crime. ... [T)he non-prosecution of Gloria and
Sotera Salongcong in the case at bar did not make the indictees before us less guilty much more, innocent was to be blessed with a judgment of
acquittal" (pp. 52-53, rec.).
On the contrary, the guilt of both appellants appear to be a moral certainty, even without the testimonies of Gloria, Sotera and Jesus. Aside from the
positive Identification of the two eyewitnesses, the evidence even of the defense tend to establish the guilt of the appellants.
The tale woven by Aposaga about his sudden departure from Polomolok as soon as the authorities started the investigation, was not only
uncorroborated but was also too improbable to believe. First, he said he told Vargas that he was going to Norala for a vacation. When Vargas returned
after he had gone, his wife told Vargas that Aposaga went to Norala to harvest palay. When he reached Norala, his aunt told him to proceed to Iloilo
because his mother was ill. But the source of his aunt's information was the same cousin who allegedly fetched him from Polomolok for the self-same
reason the alleged illness of his mother. He allegedly stayed in Iloilo for about 8 to 10 months although according to the records, he was there for more
than a year until the policemen from Polomolok came to arrest him. It should be pointed out that his sudden departure must have left his wife and child in
Polomolok without any means of support, as the land he was plowing was never planted after he left (p. 409, TSN). All these could lead to but one
conclusion that he had to flee and hide with his guilty conscience to avoid arrest. Flight and going into hiding indicate a guilty conscience. (People vs.
Guevarra, 94 SCRA 642 [1979]; People vs. Moreno, 85 SCRA 649 [1978]).
Defense witnesses Doroteo and Vicente Estorque, father and brother, respectively, of Aposaga's common-law wife, tried to establish an alibi for
Aposaga. Their testimonies, however, are inherently weak and doubtful in many substantial aspects, and appear to be nothing more than vain attempts
to save a "family member" from conviction. For instance, they testified that Aposaga was plowing with them at the time of the incident. Doroteo, however,
stated that when he heard the shout "wait, wait", Aposaga was 30 meters behind him although he could not see him as he was hi dden by talahibs (p.
385, TSN; Exh. J-1). Vicente, on the other hand, plowed with Aposaga and his father only from 10:00 to 10:30 that morning (p. 404, TSN), whereas the
incident occurred between 6:00 and 7:00 A.M. Doroteo further declared that there was nothing unusual that happened on December 13, 1965 and he
does not remember what day it was. Yet, he could recall at the witness stand four (4) years later that he saw Gloria Salongcong running at five o'clock
that morning; what dress Gloria was wearing; what time they started plowing (6:00 A.M.); what time they left the farm; what time they took their meals;
what they ate for breakfast and lunch, and other minor details of daily life. Doroteo claimed that he does not know Calbo but he admitted seeing him in
the house of Monte that fateful morning of December 13th (p. 394, TSN). He never tried to find out who uttered the words "wait, wait" (p. 394, TSN). He
was surprised to learn of the death of the victim whom he had believed to be in Bislig (p. 386, TSN); but he never visited the remains after exhumation
when he already knew he was dead (p. 379, TSN). Is this the natural reaction to a surprising death of barrio-mate who owned the land he was plowing?
Vicente's testimony likewise suffered from similar inconsistencies and improbabilities as to command little, if any, probative value. The testimonies of
these defense witnesses are mere concoctions that cannot neutralize the positive Identification of the appellants by the two prosecution witnesses.
Moreover, it is a well-settled doctrine that for alibi to be acceptable, it must be shown that the place where the accused was alleged to be must be
located at such a distance that it is well-nigh impossible for him to be at the scene of the crime when it was committed (People vs. Tirol, L-30538,
January 31, 1981; People vs. de la Cruz, 97 SCRA 387 [1980]; People vs. Mercado, 97 SCRA 232 [1980]; People vs. Angeles, 92 SCRA 432[1979]).
Such was not the situation in this case; for the place where Aposaga was allegedly plowing was only about 150 meters from the house of the victim (p.
368, TSN) and within hearing distance from the place of the incident. The place of the incident in turn was only 60 to 70 meters from the victim's house
(p. 314, TSN). It was therefore very convenient for Aposaga to slip away from his plowing and participate in the murder of the deceased even if he
actually plowed the farm in the morning of December 13, 1965.
Furthermore, Aposaga was named as a killer of the deceased in two sworn statements executed by his co-accused Monte (Exhs. "K" and "L"), which
sworn statements were corroborated by his wife Bienvenida (Exh. "M"). Monte tried to retract these statements on the witness stand by explaining that
when he said "Francisco" he meant Jesus Francisco, and not appellant Francisco Aposaga, and that the said affidavit was never read to him by
Municipal Judge Narciso Mirabueno, before whom he signed and swore to it. The latter claim was belied by Judge Mirabueno who testified that he read
the contents of all affidavits to the affiants and made sure they understood. He also asked searching questions to determine the truth of their statements
(pp. 557-569, TSN). Since it has not been shown that the said judge has any interest in the case, it is not difficult to determine which of the two (2)
testimonies deserves consideration.
As to the claim of mistaken Identity of the person named "Francisco", it is obvious from the very substance of Monte's sworn statements that the
"Francisco Aposaga" he named therein as a killer of the deceased was different and distinct from the "Jesus Francisco" (Pedoy) who buried the leather
bag of the deceased. Besides, it is understandable that Monte will try his best to save his co-accused who had so gallantly provided him a defense
counsel which he could not afford.
For his part, Monte tried to establish his innocence by pointing out that it was unnatural for him to kill Atty. Barranda after the latter had satisfactorily
explained about the problems of his work and after they had breakfast together (p. 82, rec.). Besides, he had no motive to kill his employer and
benefactor who had given him better opportunities and sufficient means to support his family by taking him as tenant and supervisor (pp. 89-90, rec.).
Unfortunately, these allegations cannot overcome the incriminating testimonies of the two (2) eyewitnesses. Besides, even from his own testimony, the
following circumstantial evidence appear to be inconsistent with his innocence:
1. Monte testified that he heard of a threat against the life of the deceased in a conversation among Gloria Salongcong, Sotera Salongcong and Jesus
Francisco (p. 471, TSN). Yet, when he saw Jesus running after the deceased carrying a bolo, he did not even look to see what Jesus intended to do (pp.
485486; 500-501, TSN).
2. He did not do anything about the disappearance of his employer for forty-eight (48) days, even though the last time he saw him (deceased) was when
somebody Jesus Francisco) was running after him (pp. 500-501, TSN).
3. If it were true that the deceased had told him he was going to Agusan to become a judge (p. 475, TSN), why did he not remind Gloria of such fact
when Gloria came looking for her husband (p. 489, TSN)?
4. Although he saw Jesus running after the deceased that morning, he did not say so when Gloria asked him about the deceased; and when Gloria
expressed the possibility that the deceased might have been waylaid, his answer was, "Nobody could do that because it is daytime" (p. 490, TSN).
5. Monte escaped from the municipal jail on July 9, 1966, allegedly because his wife was sick in San Francisco, Agusan, He explained that when he
wired his wife to inform her that their hearing will be in May (1966), his father-in-law replied that she was sick (p. 524, TSN). If that were true and this
allegation was never corroborated, his escape should have been timed around May, 1966, and not July of that year. The records do not disclose any
hearing in July 1966. Surely, it is more logical to conclude that Monte's flight, like that of his co-accused, indicated a guilty conscience.
All the above could lead but to one conclusion, that the guilt of the two (2) accused-appellants has been proven beyond reasonable doubt.
This case should, however, be further investigated to determine the participation of Sotera Salongcong, Jesus Francisco and Gloria Salongcong in the
perpetration of the crime. Their own respective statements implicate themselves. Moreover, as pointed out by the appellants, these prosecution
witnesses have strong motives to kill the deceased: Sotera and Jesus for their ouster from tenancy, and Gloria for the rape of her daughter Fe.
However, for lack of necessary votes. the death penalty cannot be imposed,
WHEREFORE, THE JUDGMENT APPEALED FROM IS HEREBY AFFIRMED, WITH THE MODIFICATION THAT APPELLANTS ARE HEREBY
SENTENCED TO RECLUSION PERPETUA, WITH COSTS AGAINST THEM.
LET A COPY OF THIS DECISION BE FURNISHED THE MINISTER OF JUSTICE FOR FURTHER INVESTIGATION SO THAT OTHERS WHO
APPEAR RESPONSIBLE FOR THE CRIME MAY BE DULY PROSECUTED.
SO ORDERED. Fernando, C.J., Teehankee, Barredo, Aquino, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera,
JJ., concur.











Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 86454 October 18, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CARMEN LIM @ "MAMENG LIM", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herrera, Laurel, De los Reyes, Roxas & Teehankee for defendant- appellant.

GUTIERREZ, JR., J .:
This is an appeal from the decision of the Regional Trial Court of Masbate, Branch 46, the dispositive portion of which reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered finding the accused Carmen Lim guilty beyond reasonable doubt of the crime charged
and sentencing her to reclusion perpetua and to pay the costs. (Rollo, p. 22)
The information filed against the accused and John Doe reads:
xxx xxx xxx
That on or about July 1, 1986, in the afternoon thereof, at Zurbito Street, Municipality of Masbate, Province of Masbate, Philippines,
within the jurisdiction of this court, the said accused who are private persons conspired and mutually helped each other, did then
and there willfully, unlawfully and feloniously kidnap Aida and Avelyn both minors and surnamed Villanueva; separating them from
their parental care; Aida Villanueva was detained for about twenty (20) days in the house of Carmen Lim alias "Mameng" while
Avelyn Villanueva was detained and brought to Cebu City by the co-accused thereby depriving the two, Aida and Avelyn of their
personal liberties. (Records, p.1)
The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable doubt is summarized as follows:
xxx xxx xxx
That in the morning of July 1, 1986, Aida Villanueva and her younger sister Avelyn Villanueva, 10 and 7 years old, respectively,
were sent on an errand by their father Charlito (should be Charito) Villanueva to buy rice in Masbate, Masbate. The Villanuevas
lived in Mobo, a neighboring town of the capital of the province. Upon their arrival at the poblacion of the capital town of Masbate at
around 9:00 o'clock in the morning, Aida and Avelyn went to the pier, staying there up to 12:00 noon, to meet their mother whom
they thought would arrive by boat from Manila. They left the pier when their mother did not arrive and went to Helen Theatre on
Zurbito Street, Masbate, Masbate, to see a picture.
At around 2:00 o'clock in the afternoon of the same day while they were in front of the Helen Theatre, they were called by the
accused Carmen Lim, in a loud voice. "Come here Nene" and asked them to go to her house just infront of the moviehouse. Aida
and Avelyn went to the house of the accused and got inside passing through the front door.
After a brief conversation with the two children, the accused gave Aida and Avelyn rice and kangkong for lunch. After they had
finished eating, Aida was told by the accused to take a bath. The accused gave Aida a dress to wear.
From July 1, 1986 to July 15, 1986, Aida Villanueva was detained in the house of the accused doing household chores such as
cleaning the kitchen, scrubbing the floor, washing the plates including removing lice from the head of the accused and fanning her.
Avelyn, the younger sister of Aida, was brought by Carmen's mother (should be sister) in Cebu on the same day they arrived in the
house of the accused.
On July 15, 1986, Charito Villanueva, father of the two minor children, found his daughter Aida in the house of the accused. He
asked the accused to let Aida go home with him, but the accused refused.
Charito came back to the house of the accused the following day, July 16, 1986, accompanied this time by Sgt. Antonio Ariate of the
266th PC Company at Camp Bonny Serrano, Masbate, Masbate, who had with him an armalite. After Identifying himself to the
accused, the soldier told the accused that he was taking Aida with him.
Without resistance but uttering slanderous remarks, the accused released Aida to Sgt. Ariate. Charito Villanueva and his daughter
Aida were brought by Sgt. Ariate to the 266th PC Company Headquarters where the complaint of Charito was recorded in the blotter
by CIC Vincent Elliot Vasquez of the I & I Section. (Rollo, p. 12)
The appellant's version, on the other hand, is summarized in her brief as follows:
xxx xxx xxx
On or about 1:30 in the afternoon of I July 1986, the sisters went to Helen Theater, located along Zurbito St., Masbate, Masbate, to
look at the pictures displayed outside. Helen Theater is located across the store and residence of the appellant.
The sisters then proceeded to appellant's store which she was tending at that time. Appellant noticed the sisters and caged them
over. She inquired from the sisters as to the whereabouts of their parents as they were apparently alone. The sisters replied that
their parents had separated and that their mother had gone to Manila, and that their father was in Buenavista, Uson, Masbate. The
sisters claimed that they were driven away by their father and that they were not given any food to eat.
Taking pity on the sisters, appellant gave the sisters food and allowed them to take a bath. Concerned for their safety, appellant
offered to shelter the sisters. As the younger sister of appellant was at that time visiting appellant, appellant proposed to Aida to let
Avelyn accompany appellant's sister to the latter's home. Aida agreed, on condition that she and Avelyn could meet every week.
Aida stayed in appellant's residence for about two (2) weeks. To help in the house, Aida would go to the market to buy bread, fish
and salt for appellant's household. Aida also helped watch over appellant's store from time to time.
On or about 9:00 a.m. of 15 July 1986, Charito Villanueva, the complainant and father of the sisters, went to appellant's store.
Charito introduced himself to appellant as the father of the two sisters and informed appellant that he was going to bring the sisters
home. Charito talked to Aida and asked her to go home with him. Aida, however, refused to go with her father. As a result, Charito
left. When asked by appellant why she refused to go with her father, Aida replied that she was afraid that her father would beat her
up.
On 16 July 1986, Charito returned to appellant's store, this time accompanied by Sgt. Antonio Ariate, Jr. of the Philippine
Constabulary, Sgt. Ariate introduced himself to appellant. Charito again talked to Aida to convince her to go home with him. This
time, Aida agreed to go home with her father. (Rollo, pp. 44-46)
The appellant raises the following assignment of errors in her appeal, to wit:
I
THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE AGAINST THE APPELLANT DESPITE THE DESISTANCE OF THE
COMPLAINANT
II
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE PROSECUTION WITNESSES' TESTIMONY WHICH WERE
REPLETE WITH INCONSISTENCIES AND CONTRADICTIONS
III
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT DESPITE THE FACT THAT AIDA VILLANUEVA WAS NOT
DETAINED BY THE APPELLANT
IV
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT DESPITE THE FACT THAT APPELLANT HAD NO MOTIVE TO
DETAIN AIDA AND AVELYN VILLANUEVA (Rollo, pp. 47-48)
The fundamental axiom underlying a criminal prosecution is that before the accused may be convicted of any crime, his guilt must be proved beyond
reasonable doubt. Thus, if there are substantial facts which were overlooked by the trial court but which could alter the results of the case in favor of the
accused, then such facts should be carefully taken into account by the reviewing tribunal. (People v. Torre, G.R. No. L-44905, April 25, 1990)
In the case at bar, after a careful review of the evidence adduced by the prosecution, we find the same to be insufficient to sustain a conviction.
The uncorroborated testimony of the alleged kidnapped victim, Aida Villanueva, which was mainly relied upon by the trial court in convicting the
appellant, was not clear and convincing enough to overcome the constitutional presumption of innocence.
There is no kidnapping in this case. The two minors voluntarily entered the appellant's residence through the front entrance. The fact of detention which
is an essential element in the crime charged, was not clearly established. There was no showing that there was actual confinement or restriction of the
person of the offended party. (See People v. Mercado, 131 SCRA 501, 506 [1984]; US v. Cabanas, 8 Phil. 64, 67 [1907]). The appellant's residence has
a store fronting the street where many customers presumably come and go. The place is busy with a movie house in front. There is no indication that
Aida was locked up, physically restrained of her liberty or unable to communicate with anyone.
There are other circumstances which create grave doubts in Aida's version of her two week detention. In her testimony, Aida claimed that she attempted
to escape three times but she was not able to do so. (TSN, July 21, 1987, p. 34). Just how she tried to escape or why she did not succeed is not
explained clearly. When Aida saw her father for the first time on July 15, 1986, she inexplicably did not shout for help or run to him but just observed him
and the appellant talk for half an hour. (TSN, July 21, 1987, p. 23) The Solicitor General counters the appellant's claim stating that Aida did ask for help
from her father when the latter was about to leave, but the appellant pushed her and refused to let her go with her father. (TSN, July 21, 1987, pp. 25-
26).
The actuations of both Aida and her father are highly incredible. They are not the natural reactions of a ten-year old child who has been detained against
her will for two weeks and who has tried unsuccessfully to escape three times.
The fact that her father was already there was the perfect opportunity for Aida to try and get away from the appellant. She could have clung to him from
the moment he came in instead of quietly observing him and the appellant talk for some time. Aida did not go with her father because the appellant
allegedly told her not to go. For someone who had been detained against her will, as between her father and her detainor, Aida would have disregarded
the appellant's order and would have run to her father. Neither is it believable that a father who has been desperately looking for his two minor daughters
for two weeks would just calmly accept the appellant's refusal to let go of his daughter.
The Court is not unaware of previous pronouncements that the testimony of a single witness, if positive and credible, is sufficient to support a conviction.
(People v. Aldeguer, G.R. No. L-47991, April 3, 1990; People v. Salufrania, 159 SCRA 401, 415416 [1988]) But as discussed above, the testimony of
Aida Villanueva does not inspire credibility. Well-settled is the rule that evidence to be believed, must not only proceed from the mouth of a credible
witness but it must be credible itself. No better test has yet been found to measure the value of a witness than its conformity to the knowledge and
common experience of mankind. (People v. Maspil, G.R. No. 85177, August 20, 1990; People v. Maribung, 149 SCRA 292, 297 [1987])
The fact of detention is also denied by the testimony of one of the prosecution witnesses. Sgt. Ariate stated that:
xxx xxx xxx
Q You also saw Aida Villanueva?
A Yes, sir.
Q Where did you see her?
A By the door of her store ... going inside. (TSN, October 22, 1987, p.10)
It is apparent that Aida had free access going in and out of the appellant's residence. In fact, Aida could have escaped at that particular period of time.
She was three feet away from the appellant when Sgt. Ariate saw her (TSN, October 22, 1987, p. 10) so she could have made a run for it if she really
wanted to go.
There is also the question of Sgt. Ariate's conflicting statements as to the answer of Aida's father about his missing daughters which was dismissed by
the trial court as a minor inconsistency. In his testimony, he stated that Aida's father said that he just sent his two daughters on an errand and they were
already missing (TSN, October 22, 1987, p. 9) while in his answer to the questions propounded to him he stated that Aida's father admitted that his
daughter ran away. (Records, p. 15)
Such conflicting statements taken together with the statement of Charito Villanueva, the father of the victim that "Aida Villanueva and Avelyn Villanueva,
10 and 6 yrs. old were (sic) left their house without his consent," (Records, p. 126) recorded in the blotter dated July 23, 1986 cast doubt on the criminal
liability of the appellant. The answer of Sgt. Ariate to the questions propounded to him and the statement in the blotter corroborate the appellant's
testimony that the two children ran away from home. (TSN, April 22, 1988, pp. 4-5)
The unbelievable and conflicting evidence of the prosecution strengthens the version of the appellant that she took pity on the two runaway children and
decided to give them food and shelter. Whether or not she treated them like unpaid servants is not in issue. What is apparent from the records is the
absence of proof showing kidnapping and serious illegal detention.
Another circumstance that belies the kidnapping charge is the unexplained delay in the lodging of the complaint against the appellant. An entire week
passed before the complaint was lodged on July 23, 1986. (See People v. Antonio, 161 SCRA 72, 81 [1988])
The fourth circumstance present which calls for the reversal of the conviction is that there is no motive whatsoever for the appellant to kidnap the two
children. The appellant is a woman of sufficient means. It is undisputed that she is the owner of a store and was the employer of two maids at the time of
the incident. She did not know the two children prior to the incident. Had she wanted to hire an additional maid, she could certainly afford to hire another
one without going to the extent of committing a crime as serious as kidnapping. There was no need to kidnap a minor and force her to work against her
will. The appellant had everything to lose and nothing to gain if it is true that she kidnapped the two children. No motive was ever propounded by the
prosecution. We are thus ushered to applying the precept that though proof of motive is not indispensable to conviction, yet a void in the evidence in this
respect discloses a weakness in the case for the prosecution. (People v. Modesto, 25 SCRA 36, 46 [1968] It has also been held in People v. Zamora, 59
Phil. 568, 569, [1934]):
xxx xxx xxx
In the case at bar, no motive for the killing has been established, and granting that proof of particular motive for taking the life of a
human being is not indispensable to conviction for homicide, the absence of such motive is nevertheless important in determining
which of two conflicting theories is more likely to be true. (Emphasis supplied)
And finally, the execution of the affidavit of desistance by Charito Villanueva, complainant in the kidnapping case, stating that his daughters were not
detained after all by the appellant taken together with the circumstances abovementioned has the effect of exculpating the appellant from the charge of
kidnapping. As held in Gomez v. Intermediate Appellate Court (135 SCRA 620, 630 [1985]):
xxx xxx xxx
It is conceded that the State has the sovereign right to prosecute criminal offenses under the full control of the fiscal and that the
dismissal of criminal cases by the execution of an affidavit of desistance by the complainant is not looked upon with favor. However,
it is also true that an affidavit of desistance may create serious doubts as to the liability of the accused. At the very least, it calls for a
second hard look at the records of the case and the basis for the judgment of conviction. Jurisprudence on the effect of desistance
notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. (Emphasis supplied)
The instant case falls under the exception where an affidavit of desistance is given due consideration. Significantly, the father of the two girls testified in
open court on November 24, 1987 that he was withdrawing the case and that his children were not detained. The prosecution had every opportunity to
cross-examine or tear apart the retraction and prove that the facts were as earlier alleged. It failed to do so.
The Solicitor General quotes the trial court's statement that:
xxx xxx xxx
If the accused thought that the evidence of the prosecution was fabricated or false, the accused could have presented her two
maids as witnesses to testify to rebut said evidence. Her failure to introduce them as witnesses could only mean that the testimonies
of the prosecution witnesses about the detention of Aida in her house were all true. (Rollo, p. 21)
It is a well-entrenched rule in our jurisprudence that the prosecution must rely on the strength of its evidence rather than on the weakness of the
defense. (People v. de Dios, G.R. No. 58174, July 6, 1990; People v. Domingo, 165 SCRA 620, 626 [1988]) In this case, the prosecution has failed to
prove the guilt of the appellant beyond reasonable doubt.
WHEREFORE, the judgment of the trial court is hereby REVERSED and SET ASIDE and appellant Carmen Lim is ACQUITTED of the crime charged for
failure to prove her guilt beyond reasonable doubt.
SO ORDERED.





























SECOND DIVISION
[G.R. No. 155791. March 16, 2005]


MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER PACHECO, respondents.
D E C I S I O N
CALLEJO, SR., J .:
At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade 4 elementary school pupil, and his playmate, Wilson Quinto,
who was also about eleven years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante Andres and Randyver Pacheco by
the mouth of a drainage culvert. Andres and Pacheco invited Wilson to go fishing with them inside the drainage culvert.
[1]
Wilson assented. When
Garcia saw that it was dark inside, he opted to remain seated in a grassy area about two meters from the entrance of the drainage system.
[2]

Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson, entered the drainage system which was covered by
concrete culvert about a meter high and a meter wide, with water about a foot deep.
[3]
After a while, respondent Pacheco, who was holding a fish, came
out of the drainage system and left
[4]
without saying a word. Respondent Andres also came out, went back inside, and emerged again, this time,
carrying Wilson who was already dead. Respondent Andres laid the boys lifeless body down in the grassy area.
[5]
Shocked at the sudden turn of
events, Garcia fled from the scene.
[6]
For his part, respondent Andres went to the house of petitioner Melba Quinto, Wilsons mother, and informed her
that her son had died. Melba Quinto rushed to the drainage culvert while respondent Andres followed her.
[7]

The cadaver of Wilson was buried without any autopsy thereon having been conducted. The police authorities of Tarlac, Tarlac, did not file any
criminal complaint against the respondents for Wilsons death.
Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation (NBI) investigators took the sworn statements of respondent
Pacheco, Garcia and petitioner Quinto.
[8]
Respondent Pacheco alleged that he had never been to the drainage system catching fish with respondent
Andres and Wilson. He also declared that he saw Wilson already dead when he passed by the drainage system while riding on his carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of the NBI performed an autopsy thereon at the cemetery and
submitted his autopsy report containing the following postmortem findings:
POSTMORTEM FINDINGS
Body in previously embalmed, early stage of decomposition, attired with white long sleeves and dark pants and placed inside a wooden coffin in a niche-
apartment style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.
Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo tracheal lumina congested and edematous containing muddy particles with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody froth.
Brain autolyzed and liquefied.
Stomach partly autolyzed.
CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory.
[9]

The NBI filed a criminal complaint for homicide against respondents Andres and Pacheco in the Office of the Provincial Prosecutor, which found
probable cause for homicide by dolo against the two.
An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac, charging the respondents with homicide. The accusatory
portion reads:
That at around 8 oclock in the morning of November 13, 1995, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of
this Honorable Court, the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy, conspiring, confederating, and helping one another,
did then and there willfully, unlawfully, and feloniously attack, assault, and maul Wilson Quinto inside a culvert where the three were fishing, causing
Wilson Quinto to drown and die.
CONTRARY TO LAW.
[10]

After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified on direct examination that the hematoma at the back of the
victims head and the abrasion on the latters left forearm could have been caused by a strong force coming from a blunt instrument or object. The
injuries in the larynx and trachea also indicated that the victim died of drowning, as some muddy particles were also found on the lumina of the larynx
and trachea (Nakahigop ng putik). Dr. Aguda stated that such injury could be caused when a person is put under water by pressure or by force.
[11]
On
cross-examination, Dr. Aguda declared that the hematoma on the scalp was caused by a strong pressure or a strong force applied to t he scalp coming
from a blunt instrument. He also stated that the victim could have fallen, and that the occipital portion of his head could have hit a blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons head could have rendered the latter unconscious, and, if he
was thrown in a body of water, the boy could have died by drowning.
In answer to clarificatory questions made by the court, the doctor declared that the 4x3-centimeter abrasion on the right side of Wilsons face could
have also been caused by rubbing against a concrete wall or pavement, or by contact with a rough surface. He also stated that the trachea region was
full of mud, but that there was no sign of strangulation.
[12]

After the prosecution had presented its witnesses and the respondents had admitted the pictures showing the drainage system including the inside
portions thereof,
[13]
the prosecution rested its case.
The respondents filed a demurer to evidence which the trial court granted on the ground of insufficiency of evidence, per its Order dated January
28, 1998. It also held that it could not hold the respondents liable for damages because of the absence of preponderant evidence to prove their liability
for Wilsons death.
The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil aspect of the case was concerned. In her brief, she averred that

THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-
APPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON QUINTO.
[14]

The CA rendered judgment affirming the assailed order of the RTC on December 21, 2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but rather on a finding that the accused-appellees did not commit the criminal acts
complained of. Thus, pursuant to the above rule and settled jurisprudence, any civil action ex delicto cannot prosper. Acquittal in a criminal action bars
the civil action arising therefrom where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to them. (Tan v.
Standard Vacuum Oil Co., 91 Phil. 672)
[15]

The petitioner filed the instant petition for review and raised the following issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR
CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON QUINTO.
[16]

The petitioner avers that the trial court indulged in mere possibilities, surmises and speculations when it held that Wilson died because (a) he
could have fallen, his head hitting the stones in the drainage system since the culvert was slippery; or (b) he might have been bitten by a snake which he
thought was the prick of a fish fin, causing his head to hit hard on the top of the culvert; or (c) he could have lost consciousness due to some ailment,
such as epilepsy. The petitioner also alleges that the trial court erred in ruling that the prosecution failed to prove any ill motive on the part of the
respondents to kill the victim, and in considering that respondent Andres even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony of the Medico-Legal Expert, Dr. Aguda; the nature, location and number of the
injuries sustained by the victim which caused his death; as well as the locus criminis. The petitioner insists that the behavior of the respondents after the
commission of the crime betrayed their guilt, considering that respondent Pacheco left the scene, leaving respondent Andres to bring out Wilsons
cadaver, while respondent Andres returned inside the drainage system only when he saw Garcia seated in the grassy area waiting for his friend Wilson
to come out.
The petitioner contends that there is preponderant evidence on record to show that either or both the respondents caused the death of her son
and, as such, are jointly and severally liable therefor.
In their comment on the petition, the respondents aver that since the prosecution failed to adduce any evidence to prove that they committed the
crime of homicide and caused the death of Wilson, they are not criminally and civilly liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly liable.
[17]
The civil liability of such person established in Articles 100, 102 and 103 of the
Revised Penal Code includes restitution, reparation of the damage caused, and indemnification for consequential damages.
[18]
When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the
offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.
[19]
With the implied
institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the
civil.
[20]

The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to
isolate him from society, to reform and rehabilitate him or, in general, to maintain social order.
[21]
The sole purpose of the civil action is the restitution,
reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the
accused.
[22]
While the prosecution must prove the guilt of the accused beyond reasonable doubt for the crime charged, it is required to prove the cause
of action of the private complainant against the accused for damages and/or restitution.
The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the civil action that the act or omission from where the civil liability may arise does not exist.
[23]

Moreover, a person committing a felony is criminally liable for all the natural and logical consequences resulting therefrom although the wrongful
act done be different from that which he intended.
[24]
Natural refers to an occurrence in the ordinary course of human life or events, while logical
means that there is a rational connection between the act of the accused and the resulting injury or damage. The felony committed must be the
proximate cause of the resulting injury. Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening
cause, produces the injury, and without which the result would not have occurred. The proximate legal cause is that acting first and producing the injury,
either immediately, or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection
with its immediate predecessor.
[25]

There must be a relation of cause and effect, the cause being the felonious act of the offender, the effect being the resultant injuries and/or death
of the victim. The cause and effect relationship is not altered or changed because of the pre-existing conditions, such as the pathological condition of
the victim (las condiciones patologica del lesionado); the predisposition of the offended party (la predisposicion del ofendido); the physical condition of
the offended party (la constitucion fisica del herido); or the concomitant or concurrent conditions, such as the negligence or fault of the doctors (la falta
de medicos para sister al herido); or the conditions supervening the felonious act such as tetanus, pulmonary infection or gangrene.
[26]

The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or
fact absolutely foreign from the felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the victim.
[27]

If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy and death follows as a consequence of their felonious
act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the factual result. The offender is criminally
liable for the death of the victim if his delictual act caused, accelerated or contributed to the death of the victim.
[28]
A different doctrine would tend to give
immunity to crime and to take away from human life a salutary and essential safeguard.
[29]
This Court has emphasized that:
Amid the conflicting theories of medical men, and the uncertainties attendant upon the treatment of bodily ailments and injuries, it would be easy in
many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest
crime might escape conviction and punishment.
[30]

In People v. Quianzon,
[31]
the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar to the present, the following: Inasmuch as a man is responsible for
the consequences of his act and in this case, the physical condition and temperament of the offended party nowise lessen the evil, the seriousness
whereof is to be judged, not by the violence of the means employed, but by the result actually produced; and as the wound which the appellant inflicted
upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should
be qualified as homicide, etc.
[32]

In the present case, the respondents were charged with homicide by dolo. In People v. Delim,
[33]
the Court delineated the burden of the
prosecution to prove the guilt of the accused for homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendants
agency in the commission of the act. Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of
crimes. In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death
was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant
committed the criminal act or was in some way criminally responsible for the act which produced the death. To prove the felony of homicide or murder,
there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent
to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate
act of the malefactor, intent to kill is conclusively presumed.
[34]

Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to adduce preponderance of evidence
or superior weight of evidence. Although the evidence adduced by the plaintiff is stronger than that presented by the defendant, he is not entitled to a
judgment if his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the
weakness of that of the defendants.
[35]

Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider
all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to which they testify, the probability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.
[36]

In the present case, we rule that, as held by the trial court and the CA, the prosecution failed to adduce preponderant evidence to prove the facts
on which the civil liability of the respondents rest, i.e., that the petitioner has a cause of action against the respondents for damages.
It bears stressing that the prosecution relied solely on the collective testimonies of Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of Dr. Dominic Aguda, the deceased sustained a 14x7-centimeter
hematoma on the scalp. But as to how the deceased sustained the injury, Dr. Aguda was equivocal. He presented two possibilities: (a) that the
deceased could have been hit by a blunt object or instrument applied with full force; or (b) the deceased could have slipped, fell hard and his head hit a
hard object:
COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused on the back of the head might be due to the victims falling on his back
and his head hitting a pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong enough and would fall from a high place and hit a
concrete pavement, then it is possible.
Q Is it possible that if the victim slipped on a concrete pavement and the head hit the pavement, the injury might be caused by that
slipping?
A It is also possible.
Q So when the victim was submerged under water while unconscious, it is possible that he might have taken in some mud or what?
A Yes, Sir.
Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would indicate that the victim was still alive when he was placed under
water.
[37]

The doctor also admitted that the abrasion on the right side of the victims face could have been caused by rubbing against a concrete wall or
pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face, would it be caused by the face rubbing against a concrete wall or
pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there no signs that the victim was strangled?
A There was no sign of strangulation, Your Honor.
[38]

The trial court gave credence to the testimony of Dr. Aguda that the deceased might have slipped, causing the latter to fall hard and hit his head
on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been caused when the victim fell down and that portion of the body or occipital
portion hit a blunt object and might have been inflicted as a result of falling down?
A - If the fall if the victim fell and he hit a hard object, well, it is also possible.
[39]

The trial court took into account the following facts:
Again, it could be seen from the pictures presented by the prosecution that there were stones inside the culvert. (See Exhibit D to D-3). The stones
could have caused the victim to slip and hit his head on the pavement. Since there was water on the culvert, the portion soaked with water must be very
slippery, aside from the fact that the culvert is round. If the victim hit his head and lost consciousness, he will naturally take in some amount of water
and drown.
[40]

The CA affirmed on appeal the findings of the trial court, as well as its conclusion based on the said findings.
We agree with the trial and appellate courts. The general rule is that the findings of facts of the trial court, its assessment of probative weight of
the evidence of the parties, and its conclusion anchored on such findings, affirmed no less by the CA, are given conclusive effect by this Court, unless
the trial court ignored, misapplied or misconstrued cogent facts and circumstances which, if considered, would change the outcome of the case. The
petitioner failed to show any justification to warrant a reversal of the findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed because even Garcia testified that the drainage culvert was dark, and that he himself
was so afraid that he refused to join respondents Andres and Pacheco inside.
[41]
Respondent Andres had no flashlight; only respondent Pacheco had
one.
Moreover, Dr. Aguda failed to testify and explain what might have caused the abrasion on the left forearm of the deceased. He, likewise, failed to
testify whether the abrasions on the face and left forearm of the victim were made ante mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence that either or both the respondents hit the deceased with a bl unt object or
instrument, and, consequently, any blunt object or instrument that might have been used by any or both of the respondents in hitting the deceased.
It is of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all.
[42]
However, the absence of any ill-motive
to kill the deceased is relevant and admissible in evidence to prove that no violence was perpetrated on the person of the deceased. In this case, the
petitioner failed to adduce proof of any ill-motive on the part of either respondent to kill the deceased before or after the latter was invited to join them in
fishing. Indeed, the petitioner testified that respondent Andres used to go to their house and play with her son before the latters death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with my son after going from her mother who is gambling, Sir.
Q But you are acquainted with him, you know his face?
A Yes, Sir.
Q Will you please look around this courtroom and see if he is around?
A (Witness is pointing to Dante Andres, who is inside the courtroom.)
[43]

When the petitioners son died inside the drainage culvert, it was respondent Andres who brought out the deceased. He then informed the
petitioner of her sons death. Even after informing the petitioner of the death of her son, respondent Andres followed the petitioner on her way to the
grassy area where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was lying, Dante Andres was with you?
A No, Sir. When I was informed by Dante Andres that my son was there at the culvert, I ran immediately. He [was] just left behind and he
just followed, Sir.
Q So when you reached the place where your son was lying down, Dante Andres also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir.
[44]

In sum, the petitioner failed to adduce preponderance of evidence to prove a cause of action for damages based on the deliberate acts alleged in
the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.


































Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-37507 June 7, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee,
vs.
WILLIAM PAGE, defendant- appellant.

AQUINO, J .:
William Page appealed from the decision of the Court of First Instance of Rizal dated July 21, 1973, convicting him of robbery with homicide, sentencing
him to reclusion perpetua, and ordering him to pay the heirs of Veronica Villaverde-Balacapo an indemnity of P12,000 plus P20,000 as moral damages
(Criminal Case No. 5396). The judgment of conviction was based on the following facts:
According to Page's confession (Exh. C), at around four o'clock in the afternoon of February 13, 1972 Crisanto Camposano, alias Boy Sangkay, a
resident of Bagong Ilog, Baclaran, Paraaque , Rizal, went to the house of William Page y Ubina located at 143 Pildira Street, near the Manila
International Airport, Pasay City, They were friends since boyhood. Page was an eighteen-year old third year high school student at the Arellano'
University in Pasay City (Exh. H).
From Page's house, the two went to Camposano's house, where they met the latter's father who was drinking with a companion. Camposano's father
gave Page some liquor to drink. Page and Camposano stayed at the latter's house up to ten o'clock in the evening (Exh. C).
At past ten o'clock, Page and Camposano went to the rotonda or intersection of Taft Avenue and F. B. Harrison Boulevard, where they boarded a
Manila-bound jeepney. Page was armed with a balisong knife. Camposano had a revolver.
According to Page's confession, he seated himself beside a male passenger who was near the driver on the front seat. Camposano took a seat at the
back of the jeepney where two female passengers were seated. (The male passenger turned out to be Randolf Scot, a thirty-year old employee of the
Hyatt Regency Hotel who was on his way to work. The female passengers were the sisters, Veronica Villaverde-Balacapo and Cesarean Villaverde).
With the jeepney was in front of the San Antonio Savings Bank on Harrison Boulevard, Page and Camposano told the driver to turn left on Russel
Avenue, going to M. Roxas Boulevard, and then to turn left going to Paraaque . There, they held up the driver and the three passengers. They got the
money and pieces of jewelry of the passengers and the driver. From the rear view mirror of the jeepney, Page saw Camposano dumping the two female
passengers on Roxas Boulevard in front of Casa Marcos. Then, the two directed the driver to proceed to the airport. They left the jeepney at Pildira
Street (where Page resided). Camposano gave Page a watch and a woman's ring as his share of the loot.
Page admitted that he had been charged with theft but the case was dismissed in the municipal court. He knew certain hoodlums named Remy,
Manoling, Cuerson and Edgar whose specialty was holding up taxicabs (Exh. C).
Scot gave a slightly different version of the holdup. He testified that when the jeepney reached that portion of Harrison Boulevard in front of the San
Antonio Savings Bank, Page pressed a knife at the neck of Scot and shouted: "This is a holdup. Don't move." Page got Scot's diary book containing a
one peso bill. Page ordered the driver, Eduardo Dilla, to shut off the lights of the jeepney, to turn left on Russel Avenue, and to proceed to Roxas
Boulevard. Page and Camposano covered their faces with pieces of cloth.
Camposano told the women passengers to bring out their money and not to shout "or else there will be shots". They replied that they had already given
everything to Camposano.
When the jeepney was in front of Casa Marcos and El Presidente Hotel, one of the women jumped out of the jeepney. (The husband of one of the
women was a waiter at Casa Marcos). The other woman shouted. Camposano kicked her, thus causing her to fall out of the jeepney. Camposano
noticed that a car was following the jeepney. Believing that it was a police car, he ordered Villa (Dilla) to drive at full speed.
According to Scot, at an isolated place called Baltao Street near the airport, Page and Camposano told the driver to stop. Page robbed Scot of his other
one peso bill and divested the driver of his earnings after boxing him for making some resistance. Then, the two malefactors fled to a dark alley. Scot
and the driver reported the holdup to the police of Paraaque . It was already eleven o'clock.
Lieutenant Casiano Eugenio the precinct commander, showed them a photograph of Camposano. Dilla and Scot Identified him as one of the two
hoodlums. Eugenio and the two robbery victims repaired to the residence of Camposano at Bagong Ilog Baclaran. They saw Camposano, whom Dilla
fingered, but Camposano fired shots at them and was able to elude pursuit due to the darkness of the night. He was killed by the Pasay City policemen
while he was committing another crime.
The next day policemen went to Page's residence near the airport to apprehend him. He was not there. His father, in the presence of his aunt, promised
to surrender him.
Page was arrested in the morning of February 24, 1972 at the Jose Abad Santos High School of the Arellano University in Pasay City. In the afternoon
of that day, his statement was taken down by Patrolman C. Prepena and sworn to before the municipal judge (Exh. C).
The woman, who jumped from the jeepney (according to Scot's story), was Veronica Balacapo. She was brought to the Philippine General Hospital by a
good Samaritan, Manolo Daval, Santos. She was already dead when she reached the hospital.
The other woman, Cesarea Villaverde (the sister of Veronica), who was pushed by Camposano out of the jeepney, was brought to the Ospital ng
Maynila. The record is not clear as to whether she survived.
The postmortem examination of the body of Veronica Balacapo, a forty-two year old married woman, revealed that she suffered (1) abrasions on the left
eyebrow, left shoulder, left elbow and sacral region; (2) bilateral severe hematoma on the occipital region of the scalp; (3) fractures on the base of the
cranial fossa and the fourth and fifth ribs along the midclavicular line, and (4) hemorrhage in the posterior cranial fossa. Death was caused by the severe
and traumatic meningeal hemorrhage (Exh. A and F).
On February 15, 1972 or before Page was arrested, the chief of police filed a complaint for robbery with murder in the municipal court of Paraaque
against Camposano and John Doe (Criminal Case No. 30039). The complaint was based on the investigation of Dilla and Scot. Page did not present
any evidence at the preliminary investigation. The case was remanded to the Court of First Instance where the fiscal filed an information for robbery with
homicide against Page and Camposano.
After trial, the trial court rendered the judgment of conviction already mentioned.
In this appeal, appellant Page contends that the trial court erred (1) in relying on his repudiated confession, (2) in convicting him although he was not
Identified by Randolf Scot, the prosecution's eyewitness, and (3) in convicting him on the basis of weak circumstantial evidence.
1. Patrolman Prepena who took Page's confession, testified on its voluntariness. Lieutenant Eugenia the precinct commander, and Patrolmen Manolito
Miranda and Jose Elquiero, the arresting officer, denied that Page was maltreated while he was in the custody of the police.
Page admitted that when he was brought before the municipal judge for the administration of the oath on his confession, he could have complained to
the latter about the alleged maltreatment. He did not complain.
His aunt, Prudencia Alupit, and his own lawyer visited him in jail. He allegedly confided to them that he was maltreated. He requested them to take
action against the policemen. They did not complain to the proper authorities about the alleged maltreatment.
The learned trial court made a searching and conscientious analysis of appellant's evidence on the alleged duress employed by the police in extracting
his confession. It concluded that the confession was voluntary.
We find no error in that conclusion. Page's confession, having been taken before the new Constitution took effect, is admissible although the requisites
in section 20 of article IV were not observed (Magtoto vs. Manguera, L-37201-2, March 3, 1975, 63 SCRA 4).
Certain details found in the confession are strong indicia of its authenticity. Page specified therein that his residence was at 143 Pildira Street, an
address which jibes with the address in his school record (Exh. I); that his maternal surname is Ubina; that he met Camposano at four o'clock in the
afternoon of February 13, 1972; that they went to Camposano's residence, where he (Page) was given liquor by Camposano's father; that he directed
the driver to follow a certain route; that Camposano was from Sorsogon; that Page was acquainted with some hoodlums, and that he (Page) was
charged with theft. These details would not have been embodied in the confession had not Page freely disclosed them to the police.
2. It is true that Scot during the trial did not point to Page as the person who sat beside him on the front seat of the jeepney and who pressed an open
knife at his neck. Testifying nine months after the occurrence, Scot could not remember the face of Page. He recalled only that Page's hair was thick.
Patrolman Ruben Crue Santiago, one of those who investigated Page, testified that the latter was sporting long hair and looked like a hippie at the time
of the investigation (2 tsn November 21, 1972). The photographs of Page taken in July, 1971, or about seven months before the holdup, when Page was
booked for theft, show that he had long hair (Exh. G).
Scot's failure to identify Page during the trial is of no moment because the crucial fact is that Page in his own confession admitted his participation in the
holdup. Page stated in his confession:
Iyong jeep na pampasahero na aming sinakyan sa may Rotonda ng Baclaran patungong Maynila, biaheng Harrison, ay may sakay
na dalawang babae sa hulihan at isang lalaki sa unahan sa tabi ng driver at ako ay naupo sa harapan katabi ko iyong lalaki at si
Boy Sangkay (Camposano) ay sa gawing hulihan.
Pagdating namin sa may tapat ng San Antonio Bank ay hinoldup namin iyong jeep pati ng mga pasahero at pinaliko namin sa
Russel Avenue patungong M. Roxas Blvd. Pagdating namin sa M. Roxas Blvd., ay pinakaliwa namin patungong Paraaque at
noong kami'y nasa M. Roxas Blvd. na, ay kinuha namin ang mga pera at alahas noong mga pasahero at tsuper ng jeep at matapos
noon any nakita ko na lang sa salamin na inihulog ni Boy Sangkay iyong dalawang babae sa may tapat ng Casa Marcos sa M.
Roxas Blvd.
At pagkatapos ay nagpahatid kami patungong MIA at bumaba kami sa Pildira sa Pasay City. (No. 13, Exh. C).
Scot's testimony and the necropsy report (Exh. A) prove the corpus delicti or the fact that robbery with homicide was committed. Page's extrajudicial
confession was corroborated by the evidence on the corpus delicti (Sec. 3, Rule 133, Rules of Court).
3. Appellant's third contention that his guilt was not proven beyond reasonable doubt, because the prosecution's evidence is mainly circumstantial, is not
meritorious.
Once it is conceded that his confession is voluntary then there cannot be any doubt as to his guilt. We have already shown that his confession was not
vitiated by compulsion or constraint.
The alibi, which Page interposed during the trial and which his counsel did not bother to discuss in his brief, appears to be a complete fabrication. Page
testified that at the time of the commission of the holdup, he was residing with his aunt at 26 Simbo Street, Fort Bonifacio, Makati, Rizal and that he was
sick.
That testimony was squarely belied by Page's school record (Exh. 1) which shows that, when the holdup was perpetrated, he was residing with his
father at 143 Pildira Street, Pasay City near the airport (or at 101 Interior Rivera Village near the airport, Exh. H) and that on February 11, 1972, or two
days before the holdup was committed, he was not sick because on that date he was not absent from school.
In any event, even if he was a Makati resident at the time of the holdup, that would not have precluded his participation in the commission of that offense
at Baclaran, Paraaque , which is not very far from Fort Bonifacio.
To establish an alibi, the accused must show that he was in another place for such a period of time that it was impossible for him to have been at the
place where the crime was committed at the time of its commission (People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350, 354). Page's
alibi does not satisfy that requirement.
The more important point to consider is whether the trial court correctly ruled that Page, as a fellow conspirator of Camposano, could be held liable for
robbery with homicide or for robbery only. In his letters to this Court, Page, not being a lawyer and not knowing the rules on conspiracy, insisted that he
had nothing to do with the death of Veronica Villaverde Balacapo.
Of course, it was Camposano alone who directly brought about Veronica's death. Whether Veronica jumped from the jeepney, as testified by Scot, or
whether Camposano kicked and pushed her and her sister, Cesarean out of the jeepney, as stated by Page in his confession, Camposano's culpability
for that flagitious deed cannot be disputed.
If Veronica jumped out of the jeepney, it must have been because she was in mortal dread that Camposano would shoot her. As fear gripped Veronica,
she, in desperation, thought of scampering out of the moving jeepney. Her head struck the pavement. It was broken. A hemorrhage ensued. She died
before medical assistance could be extended to her.
The rule is that if a man creates in another person's mind an immediate sense of danger, which causes such person to try to escape, and, in so doing,
the latter injures himself, the man who creates such a state of mind is responsible for the resulting injuries (People vs. Toling, L-27097, January 17,
1975, 62 SCRA 17,33).
We find that the trial court's conclusion as to conspiracy is borne out by the evidence. Page and Camposano were boyhood friends. About six hours
before the crime was committed, they were already together. They were in the Baclaran rotonda at around ten o'clock in the evening or shortly before
the holdup was committed. They boarded the jeepney in that place. Inside the jeepney, they coordinated their actions. They directed the jeepney driver
to go near the airport or in the vicinity of Page's residence, a place which was well-known to the two malefactors. They left the jeepney together and fled
in the same direction.
There is not a scintilla of doubt that a conspiracy to commit robbery existed between Page and Camposano. The fact that the two armed themselves
with deadly weapons, a knife and a revolver, signified that they were determined to kill their victims in order to consummate their nefarious objective.
The conspiracy may be inferred from the acts of Page and Camposano. Those acts reveal that they had agreed to commit robbery inside a passenger
jeepney (Art. 8, Revised Penal Code). This Court may take judicial notice that that kind of robbery has been frequently committed since the liberation
when the jeepney came into existence as a public conveyance.
Page and Camposano implemented their agreement when they waited for a passenger jeepney at the Baclaran rotonda and boarded it at the same
time. If they had no evil intention, they could have sat together at the back. But, they did not do so. Obviously, as previously planned by them, Page took
the front seat so that he could control the driver and at the same time extort money from him and the other passenger in the front seat. Camposano took
a seat at the back of the jeepney so that he could rob the two female passengers.
The behavior of Page and Camposano inside the jeepney disclosed a synchronization of their actions, evincing a prior concert and plan to commit
robbery with violence against and intimidation of persons. Page should answer for all the consequences of the conspiracy, including the homicide which
was intertwined with the robbery committed by his conspirator. The homicide was committed on the occasion or by reason of the robbery.
The rule is that where the conspirarcy to commit robbery was conclusively shown by the concurrent and coordinate acts of the accused, and homicide
was committed as consequence, or on the occasion, of the robbery, all of the accused are guilty of robo con homicidio whether or not they actually
participated in the killing (People vs. Lingad, 98 Phil. 5; People vs. Puno, L-31594, April 29, 1974, 56 SCRA 659, 663).
Generally, when robo con homicidio has been proven. all those who had taken part int the robbery are guilty of the special complex crime unless it
appears that they endoevored to prevent the homicide (U.S. vs. Macalalad, 9 Phil. 1). tha same rule is followed is Spanish jurisprudence.
Son resonsables de este delito (robo con homicidio) en concepto de autor no solo todos los que cooperen a la muerte, siquiera sea
con supresencia, sino tabien todos los que intevienen en la ejecucion del robo aun cuando no temon parte en el homicidio: (2
Cuello Calon, Derecho Penal, 1975 Edition, p. 976).
Cuestion II. Comedio un robo con violencia e intimidacion e las personas por dos sujetos, uno de los cuales dispara un trbuco,
dejando muerto en el acto a un tercero que acude en auxilo de llos rabalos, el que no disparo sera solo responsable del robo, o al
igual que su consorte, incurrira en la pena del robo con homicido, previsto en el numero 10 del art. 516 que comentamos?
El Tribunal Supremo ha declarado que siendo ambos procesados autores del robo, lo sonigualmente del homicido que ocurrio en el
ultimo delito esta de tal manera enlazado con el de robo, que a no prestarselo el tercero hubiese sido muerto como lo fue; y que por
ambos procesados, son autores uno y otro, segun el art. 13 del Codigo penal, y por lo lmismo responsables los dos de todas las
consequencias de su accion." (Sentencia de 30 de Abril de 1872; 3 Viada, Codigo Penal 347).
El propio Tribunal Supremo ha resulto; 'que si resulta probado la delincuencia del procesado en el hecho generador, que es el robo,
con ocasion del que se cometio un homijcidio, basta esto, en conformidad a lo dispuesto en, el num. 1. del art. 516, para
conderearle tambien responsable de homicidio; resolucion cuya justicia evidencia aun mas al parrafo segundo del art. 518, en el
que se declara que los malchechores presentes a la ejecucion de un robo en despoblado y en cuadrilla soautores de cualquera de
los atentados que esta cometa. si on constare que procuraron impedirios. (Sentencia de 23 de Febrero de 1872; 3 Viada, Codigo
Penal, Cuarta Edicion, p. 347).
It may be added that the presence of Page in the front seat, armed with a balisong, must have emboldened Camposano to threaten Veronica Balacapo
and to cause her death with impunity.
The lower court failed to order the accused to pay the sum of P95 as the value of the things taken by Camposano from the deceased victim.
The case of Page, a former high school student, now twenty four years old, the child of estranged parents (he lived with his father), who, at the age of
eighteen years, was implicated in robbery with homicide, undoubtedly by reason of poverty, should ordinarily excite some sympathy and might evoke
compassionate justice.
Pressed by his lawyer to examine his conscience and to state truthfully whether he was implicated in the holdup, Page cried and said: "Before the eyes
of God, I really do not have anything to do with it. That is why I am very sad, sir. I am being charged for a crime which I have not done. I have been in
jail. I have nothing to do with it" (19 tsn December 19, 1972).
Of course, he did not kill the victim. But, under the rules of conspiracy, he is deemed to be a co-principal in the robbery with homicide.
He testified that he was single, However, Rosita Lareza, claiming to be his wife, and Teresita Cordero, posing as his girl friend, filed written requests for
the early disposition of his case (pp. 125 and 140, Rollo).
We have already mentioned that he was charged with theft in the municipal court but the case was dismissed. At the time the instant case was filed in
1972, he was charged also in the municipal court with simple robbery and two cases of robbery with murder (Criminal Cases Nos. 30000, 30001 and
30038) (p. 12, Expediente of Criminal Case No. 5396). He was also charged in Criminal Cases Nos. 5395 and 9765 of the Court of First Instance of
Rizal. (See I. S. No. 73-5054 for robbery filed in the fiscal's office at Pasig, Rizal, pp. 63, 70 and 78 of Rollo). What happened to those cases is not
shown in the record.
His behavior in prison has not been exemplary. On October 7, 1975 Page and five other prisoners comandered the truck, which was delivering
foodstuffs at the prison compound, held as hostages the driver and the kitchen supervisor, and tried to escape. Page and four others were recaptured (p.
119, Rollo).
Page in his letter to the Chief Justice dated April 14, 1977 manifested that, inasmuch as he could not endure the discomforts of prolonged confinement,
he was amenable to be electrocuted (he was only sentenced to reclusion perpetua by the trial court).
This is a case where considerations of leniency are out of place. The full force of retributive justice should be brought to bear upon the accused. Many
persons have been victimized in extortions or holdups committed in buses, taxicabs and jeepneys. The court should cooperate with the agents of the law
in making these public conveyances a safe means of travel.
WHEREFORE, the lower court's judgment is affirmed with slight modification that appellant should further pay-the heirs of the victim the sum of P95
representing the value of the watch, earrings and necklace taken from her. Costs against the defendant-appellant.
SO ORDERED.
Barredo, Antonio and Martin, JJ., concur.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27097 January 17, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendants-appellants.
Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for plaintiff-appellee. Santiago F. Alidio as counsel de oficio for
defendants-appellants.

AQUINO, J .:
Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court of First Instance of Laguna, finding them guilty of multiple murder and
attempted murder, sentencing them to death and ordering them to indemnify each set of heirs of (1) Teresita B. Escanan, (2) Antonio B. Mabisa, (3)
Isabelo S. Dando, (4) Elena B. Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F. Bautista in the sum of P6,000 and to pay Amanda
Mapa the sum of P500 (Criminal Case No. SC-966). The judgment of conviction was based on the following facts:
Antonio Toling and Jose Toling, twins, both married, are natives of Barrio Nenita which is about eighteen (or nine) kilometers away from Mondragon,
Northern Samar. They are illiterate farmers tilling their own lands. They were forty-eight years old in 1966. Antonio is one hour older than Jose. Being
twins, they look alike very much. However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14, 1966).
Antonio's daughter, Leonora, was working in Manila as a laundrywoman since September, 1964. Jose's three children one girl and two boys, had stayed
in Manila also since 1964.
Antonio decided to go to Manila after receiving a letter from Leonora telling him that she would give him money. To have money for his expenses,
Antonio killed a pig and sold the meat to Jose's wife for sixty pesos. Jose decided to go with Antonio in order to see his children. He was able to raise
eighty-five pesos for his expenses.
On January 6, 1965, with a bayong containing their pants and shirts, the twins left Barrio Nenita and took a bus to Allen. From there, they took a launch
to Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on board an Alatco bus, and from Daraga, they rode on the train, arriving at the Paco
railroad station in Manila at about seven o'clock in the morning of January 8th. It was their first trip to the big city.
At the Paco station, the twins took a jeepney which brought them to Tondo. By means of a letter which Aniano Espenola a labor-recruiter, had given
them, they were able to locate an employment agency where they learned the address of the Eng Heng Glassware. Antonio's daughter was working in
that store. Accompanied by Juan, an employee of the agency, they proceeded to her employer's establishment. Leonora gave her father fifty pesos.
Sencio Rubis Antonio's grandson, gave him thirty pesos. Antonio placed the eighty pesos in the right pocket of his pants. It was then noontime.
Jose was not able to find any of his children in the city. The twins returned to the agency where they ate their lunch at Juan's expense. From the agency,
Juan took the twins to the Tutuban railroad station that same day, January 8th, for their homeward trip.
After buying their tickets, they boarded the night Bicol express train at about five o'clock in the afternoon. The train left at six o'clock that evening.
The twins were in coach No. 9 which was the third from the rear of the dining car. The coach had one row of two-passenger seats and another row of
three- passenger seats. Each seat faced an opposite seat. An aisle separated the two rows. The brothers were seated side by side on the fourth three-
passenger seat from the rear, facing the back door. Jose was seated between Antonio, who was near the window, and a three-year old boy. Beside the
boy was a woman breast-feeding her baby who was near the aisle. That woman was Corazon Bernal. There were more than one hundred twenty
passengers in the coach. Some passengers were standing on the aisle.
Sitting on the third seat and facing the brothers were two men and an old woman who was sleeping with her head resting on the back of the seat (Exh.
2). on the two-passenger seat across the aisle in line with the seat where the brothers were sitting, there were seated a fat woman, who was near the
window, and one Cipriano Reganet who was on her left. On the opposite seat were seated a woman, her daughter and Amanda Mapa with an eight-
month old baby. They were in front of Reganet.
Two chico vendors entered the coach when the train stopped at Cabuyao, Laguna. The brothers bought some chicos which they put aside. The vendors
alighted when the train started moving. It was around eight o'clock in the evening.
Not long after the train had resumed its regular speed, Antonio stood up and with a pair of scissors (Exh. B) stabbed the man sitting directly in front of
him. The victim stood up but soon collapsed on his seat.
For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who was seated opposite him. She was not able to get up anymore.
1

Upon seeing what was happening, Amanda Mapa, with her baby, attempted to leave her seat, but before she could escape Jose stabbed her, hitting her
on her right hand with which she was supporting her child (Exh. D-2). The blade entered the dorsal side and passed through the palm. Fortunately, the
child was not injured. Most of the passengers scurried away for safety but the twins, who had run amuck, stabbed everyone whom they encountered
inside the coach.
2

Among the passengers in the third coach was Constabulary Sergeant Vicente Z. Rayel, a train escort who, on that occasion, was not on duty. He was
taking his wife and children to Calauag, Quezon. He was going to the dining car to drink coffee when someone informed him that there was a stabbing
inside the coach where he had come from. He immediately proceeded to return to coach No. 9. Upon reaching coach 8, he saw a dead man sprawled
on the floor near the toilet. At a distance of around nine meters, he saw a man on the platform separating coaches Nos. 8 and 9, holding a knife between
the thumb and index finger of his right hand, with its blade pointed outward. He shouted to the man that he (Rayel) was a Constabularyman and a
person in authority and Rayel ordered him to lay down his knife (Exh. A) upon the count of three, or he would be shot.
Instead of obeying, the man changed his hold on the knife by clutching it between his palm and little finger (with the blade pointed inward) and, in a
suicidal impulse, stabbed himself on his left breast. He slowly sank to the floor and was prostrate thereon. Near the platform where he had fallen, Rayel
saw another man holding a pair of scissors (Exh. B). He retreated to the steps near the platform when he saw Rayel armed with a pistol.
Rayel learned from his wife that the man sitting opposite her was stabbed to death.
Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining car when he received the information that there were killings in the third
coach. He immediately went there and, while at the rear of the coach, he met Mrs. Mapa who was wounded. He saw Antonio stabbing with his scissors
two women and a small girl and a woman who was later identified as Teresita B. Escanan (Exh. I to I-3). Antonio was not wounded. Those victims were
prostrate on the seats of the coach and on the aisle.
Aldea shouted at Antonio to surrender but the latter made a thrust at him with the scissors. When Antonio was about to stab another person, Aldea stood
on a seat and repeatedly struck Antonio on the head with the butt of his pistol, knocking him down. Aldea then jumped and stepped on Antonio's
buttocks and wrested the scissors away from him. Antonio offered resistance despite the blows administered to him.
When the train arrived at the Calamba station, four Constabulary soldiers escorted the twins from the train and turned them over to the custody of the
Calamba police. Sergeant Rayel took down their names. The bloodstained scissors and knife were turned over to the Constabulary Criminal
Investigation Service (CIS).
Some of the victims were found dead in the coach while others were picked up along the railroad tracks between Cabuyao and Calamba. Those who
were still alive were brought to different hospitals for first-aid treatment. The dead numbering twelve in all were brought to Funeraria Quiogue, the official
morgue of the National Bureau of Investigation (NBI) in Manila, where their cadavers were autopsied (Exh. C to C-11). A Constabulary photographer
took some pictures of the victims (Exh. G to I-2, J-1 and J-2).
Of the twelve persons who perished, eight, whose bodies were found in the train, died from stab wounds, namely:
(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban, Camarines Norte.
(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.
(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.
(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and
(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q-2,
R to R-2 and T to T-2)
Four dead persons were found near the railroad tracks. Apparently, they jumped from the moving train to avoid being killed. They were:
(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. .
(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.
(3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and
(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street, Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and S to
S-2).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda Mapa-Dizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon Bernal-
Astrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died later (43 tsn January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon her right hand by Jose Toling, she was first brought to the Calamba Emergency
Hospital. Later, she was transferred to the hospital of the Philippine National Railways at Caloocan City where she was confined for thirteen days free of
charge. As a result of her injury, she was not able to engage in her occupation of selling fish for one month, thereby losing an expected earning of one
hundred fifty pesos. When she ran for safety with her child, she lost clothing materials valued at three hundred pesos aside from two hundred pesos
cash in a paper bag which was lost.
The case was investigated by the Criminal Investigation Service of the Second Constabulary Zone headquarters at Camp Vicente Lim, Canlubang,
Laguna. On January 9, 1965 Constabulary investigators took down the statements of Mrs. Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de
Sarmiento and Sergeant Aldea. On that date, the statements of the Toling brothers were taken at the North General Hospital. Sergeant Rayel also gave
a statement.
Antonio Toling told the investigators that while in the train he was stabbed by a person "from the station" who wanted to get his money. He retaliated by
stabbing his assailant. He said that he stabbed somebody "who might have died and others that might not". He clarified that in the train four persons
were asking money from him. He stabbed one of them. "It was a hold-up".
He revealed that after stabbing the person who wanted to rob him, he stabbed other persons because, inasmuch as he "was already bound to die", he
wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. 3, 1965).
Jose Toling, in his statement, said that he was wounded because he was stabbed by a person "from Camarines" who was taking his money. He
retaliated by stabbing his assailant with the scissors. He said that he stabbed two persons who were demanding money from him and who were armed
with knives and iron bars.
When Jose Toling was informed that several persons died due to the stabbing, he commented that everybody was trying "to kill each other" (Exh. I-A).
According to Jose Toling, two persons grabbed the scissors in his pocket and stabbed him in the back with the scissors and then escaped. Antonio
allegedly pulled out the scissors from his back, gave them to him and told him to avenge himself with the scissors.
On January 20, 1965 a Constabulary sergeant filed against the Toling brothers in the municipal court of Cabuyao, Laguna a criminal complaint for
multiple murder and multiple frustrated murder. Through counsel, the accused waived the second stage of the preliminary investigation. The case was
elevated to the Court of First Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed against the Toling brothers an information for
multiple murder (nine victims), multiple frustrated murder (six victims) and triple homicide (as to three persons who died after jumping from the running
train to avoid being stabbed).
At the arraignment, the accused, assisted by their counsel de oficio pleaded not guilty. After trial, Judge Arsenio Naawa rendered the judgment of
conviction already mentioned. The Toling brothers appealed.
In this appeal, appellants' counsel de oficio assails the credibility of the prosecution witnesses, argues that the appellants acted in self-defense and
contends, in the alternative, that their criminal liability was only for two homicides and for physical injuries.
According to the evidence for the defense (as distinguished from appellants' statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban
Railroad Station in the afternoon of January 8, 1965, Antonio went to the ticket counter to buy tickets for himself and Jose. To pay for the tickets, he took
out his money from the right pocket of his pants and later put back the remainder in the same pocket. The two brothers noticed that four men at some
distance from them were allegedly observing them, whispering among themselves and making signs. The twins suspected that the four men harbored
evil intentions towards them.
When the twins boarded the train, the four men followed them. They were facing the twins. They were talking in a low voice. The twins sat on a two
passenger seat facing the front door of the coach, the window being on the right of Antonio and Jose being to his left. Two of the four men, whom they
were suspecting of having evil intentions towards them, sat on the seat facing them, while the other two seated themselves behind them. Some old
women were near them. When the train was already running, the man sitting near the aisle allegedly stood up, approached Antonio and pointed
a balisong knife at his throat while the other man who was sitting near the window and who was holding also a balisong knife attempted to pick Antonio's
right pocket, threatening him with death if he would not hand over the money. Antonio answered that he would give only one-half of his money provided
the man would not hurt him, adding that his (Antonio's) place was still very far.
When Antonio felt some pain in his throat, he suddenly drew out his hunting knife or small bolo (eight inches long including the handle) from the back
pocket of his pants and stabbed the man with it, causing him to fall to the floor with his balisong. He also stabbed the man who was picking his pocket.
Antonio identified the two men whom he had stabbed as those shown in the photographs of Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A and
5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio was stabbing the second man, another person from behind allegedly
stabbed him on the forehead, causing him to lose consciousness and to fall on the floor (Antonio has two scars on his forehead and a scar on his chest
and left forearm, 85, 87 tsn). He regained consciousness when two Constabulary soldiers raised him. His money was gone.
Seeing his brother in a serious condition, Jose stabbed with the scissors the man who had wounded his brother. Jose hit the man in the abdomen. Jose
was stabbed in the back by somebody. Jose stabbed also that assailant in the middle part of the abdomen, inflicting a deep wound.
However, Jose did not see what happened to the two men whom he had stabbed because he was already weak. He fell down and became unconscious.
He identified Exhibit A as the knife used by Antonio and Exhibit B as the scissors which he himself had used. He recovered consciousness when a
Constabulary soldier brought him out of the train.
The brothers presented Doctor Leonardo del Rosario, a physician of the North General Hospital who treated them during the early hours of January 9,
1965 and who testified that he found the following injuries on Antonio Toling:
Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches each, mid-frontal (wound on the forehead) and
Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of 3rd ICS right, penetrating thoracic cavity (chest wound (Exh.
11).
and on Jose Toling a stab wound, one inch long on the paravertebral level of the fifth rib on the left, penetrating the thoracic cavity (Exh. 10). The wound
was on the spinal column in line with the armpit or "about one inch from the midline to the left" (113 tsn). The twins were discharged from the hospital on
January 17th.
The trial court, in its endeavor to ascertain the motive for the twins' rampageous behavior, which resulted in the macabre deaths of several innocent
persons, made the following observations:
What could be the reason or motive that actuated the accused to run amuck? It appears that the accused travelled long over land
and sea spending their hard earned money and suffering privations, even to the extent of foregoing their breakfast, only to receive
as recompense with respect to Antonio the meager sum of P50 from his daughter and P30 from his grandson and with respect to
Jose to receive nothing at all from any of his three children whom he could not locate in Manila.
It also appears that the accused, who are twins, are queerly alike, a fact which could easily invite some people to stare or gaze at
them and wonder at their very close resemblance. Like some persons who easily get angry when stared at, however, the accused,
when stared at by the persons in front of them, immediately suspected them as having evil intention towards them (accused).
To the mind of the Court, therefore, it is despondency on the part of the accused coupled with their unfounded suspicion of evil
intention on the part of those who happened to stare at them that broke the limit of their self-control and actuated them to run
amuck.
We surmise that to the captive spectators in coach No. 9 the spectacle of middle-aged rustic twins, whom, in the limited space of the coach, their co-
passengers had no choice but to notice and gaze at, was a novelty. Through some telepathic or extra-sensory perception the twins must have sensed
that their co-passengers were talking about them in whispers and making depreciatory remarks or jokes about their humble persons. In their parochial
minds, they might have entertained the notion or suspicion that their male companions, taking advantage of their ignorance and naivete, might victimize
them by stealing their little money. Hence, they became hostile to their co-passengers. Their pent-up hostility erupted into violence and murderous fury.
A painstaking examination of the evidence leads to the conclusion that the trial court and the prosecution witnesses confounded one twin for the other.
Such a confusion was unavoidable because the twins, according to a Constabulary investigator, are "very identical". Thus, on the witness stand CIS
Sergeants Alfredo C. Orbase and Liberato Tamundong after pointing to the twins, refused to take the risk of identifying who was Antonio and who was
Jose. They confessed that they might be mistaken in making such a specific identification (28 tsn September 3, 1965; 32 tsn November 5, 1965).
In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides would be their sworn statements (Exh. 1 and 8), executed one day after
the killing, their own testimonies and the medical certificates (Exh. 10 and 11). Those parts of the evidence reveal that the one who was armed with the
knife was Antonio and the one who was armed with the scissors was Jose. The prosecution witnesses and the trial court assumed that Antonio was
armed with the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That assumption is erroneous.
In his statement and testimony, Antonio declared that he was armed with a knife, while Jose declared that he was armed with the scissors which Antonio
had purchased at the Tutuban station, before he boarded the train and which he gave to Jose because the latter is a barber whose old pair of scissors
was already rusty. As thus clarified, the person whom Sergeant Rayel espied as having attempted to commit suicide on the platform of the train by
stabbing himself on the chest would be Antonio (not Jose). That conclusion is confirmed by the medical certificate, Exhibit 11, wherein it is attested that
Antonio had a wound in the chest. And the person whom Sergeant Aldea subdued after the former had stabbed several persons with a pair of scissors
(not with a knife) was Jose and not Antonio. That fact is contained in his statement of January 9, 1965 (p. 9, Record).
The mistake of the prosecution witnesses in taking Antonio for Jose and vice-versa does not detract from their credibility. The controlling fact is that
those witnesses confirmed the admission of the twins that they stabbed several passengers.
Appellants' counsel based his arguments on the summaries of the evidence found in the trial court's decision. He argues that the testimonies of
Sergeants Rayel and Aldea are contradictory but he does not particularize on the supposed contradictions.
The testimonies of the two witnesses do not cancel each other. The main point of Rayel's testimony is that he saw one of the twins stabbing himself in
the chest and apparently trying to commit suicide. Aldea's testimony is that he knocked down the other twin, disabled him and prevented him from
committing other killings.
It may be admitted that Rayel's testimony that Aldea took the knife of Jose Toling was not corroborated by Aldea. Neither did Aldea testify that Antonio
was near Jose on the platform of the train. Those discrepancies do not render Rayel and Aldea unworthy of belief. They signify that Aldea and Rayel did
not give rehearsed testimonies or did not compare notes.
Where, as in this case, the events transpired in rapid succession in the coach of the train and it was nighttime, it is not surprising that Rayel and Aldea
would not give identical testimonies (See 6 Moran's Comments on the Rules of Court, 1970 Ed. 139-140; People vs. Resayaga, L-23234, December 26,
1963, 54 SCRA 350). There is no doubt that Aldea and Rayel witnessed some of the acts of the twins but they did not observe the same events and
their powers of perception and recollection are not the same.
Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no one corroborated her testimony that one of the twins stabbed a man and a
sleeping woman sitting on the seat opposite the seat occupied by the twins. The truth is that Mrs. Mapa's testimony was confirmed by the necropsy
reports and by the twins themselves who admitted that they stabbed some persons.
On the other hand, the defense failed to prove that persons, other than the twins, could have inflicted the stab wounds. There is no doubt as to
the corpus delicti. And there can be no doubt that the twins, from their own admissions (Exh. 1 and 8) and their testimonies, not to mention the
testimonies of Rayel, Aldea, Mrs. Mapa and the CIS investigators, were the authors of the killings.
Apparently, because there was no doubt on the twins' culpability, since they were caught in flagrante delicto the CIS investigators did not bother to get
the statements of the other passengers in Coach No. 9. It is probable that no one actually saw the acts of the twins from beginning to end because
everyone in Coach No. 9 was trying to leave it in order to save his life. The ensuing commotion and confusion prevented the passengers from having a
full personal knowledge of how the twins consummated all the killings.
On the other hand, the twins' theory of self-defense is highly incredible. In that crowded coach No. 9, which was lighted, it was improbable that two or
more persons could have held up the twins without being readily perceived by the other passengers. The twins would have made an outcry had there
really been an attempt to rob them. The injuries, which they sustained, could be attributed to the blows which the other passengers inflicted on them to
stop their murderous rampage.
Appellants' view is that they should be held liable only for two homicides, because they admittedly killed Antonio B. Mabisa and Isabelo S. Dando, and
for physical injuries because they did not deny that Jose Toling stabbed Mrs. Mapa. We have to reject that view. Confronted as we are with the grave
task of passing judgment on the aberrant behavior of two yokels from the Samar hinterland who reached manhood without coming into contact with the
mainstream of civilization in urban areas, we exercised utmost care and solicitude in reviewing the evidence. We are convinced that the record
conclusively establishes appellants' responsibility for the eight killings.
To the seven dead persons whose heirs should be indemnified, according to the trial court, because they died due to stab wounds, should be added the
name of Susana C. Hernandez (Exh. P, P-1 and P-2). The omission of her name in judgment was probably due to inadvertence. According to the
necropsy reports, four persons, namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to multiple
traumatic injuries consisting of abrasions, contusions, lacerations and fractures on the head, body and extremities (Exh. J to J-2, K to K-2, M to M-2 and
S to S-2).
The conjecture is that they jumped from the moving tracing to avoid being killed but in so doing they met their untimely and horrible deaths. The trial
court did not adjudge them as victims whose heirs should be indemnified. As to three of them, the information charges that the accused committed
homicide. The trial court dismissed that charge for lack of evidence.
No one testified that those four victims jumped from the train. Had the necropsy reports been reinforced by testimony showing that the proximate cause
of their deaths was the violent and murderous conduct of the twins, then the latter would be criminally responsible for their deaths.
Article 4 of the Revised Penal Code provides that "criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act
done be different from that which he intended". The presumption is that "a person intends the ordinary consequences of his voluntary act" (Sec. 5[c],
Rule 131, Rules of Court).
The rule is that "if a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he
injures himself, the person who creates such a state of mind is responsible for the injuries which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited
in U.S. vs. Valdez, 41 Phil. 4911, 500).
Following that rule, is was held that "if a person against whom a criminal assault is directed reasonably believes himself to be in danger of death or great
bodily harm and in order to escape jumps into the water, impelled by the instinct of self-preservation, the assailant is responsible for homicide in case
death results by drowning" (Syllabus, U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to the jumping from the train of the four victims already named precludes the imputation of criminal
responsibility to the appellants for the ghastly deaths of the said victims.
The same observation applies to the injuries suffered by the other victims. The charge of multiple frustrated murder based on the injuries suffered by
Cipriano Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court for lack of evidence. Unlike
Mrs. Mapa, the offended parties involved did not testify on the injuries inflicted on them.
The eight killings and the attempted killing should be treated as separate crimes of murder and attempted murder qualified be treachery (alevosia) (Art.
14[16], Revised Penal Code). The unexpected, surprise assaults perpetrated by the twins upon their co-passengers, who did not anticipate that the twins
would act likejuramentados and who were unable to defend themselves (even if some of them might have had weapons on their persons) was a mode of
execution that insured the consummation of the twins' diabolical objective to butcher their co-passengers. The conduct of the twins evinced conspiracy
and community of design.
The eight killings and the attempted murder were perpetrated by means of different acts. Hence, they cannot be regarded as constituting a complex
crime under article 48 of the Revised Penal Code which refers to cases where "a single act constitutes two or more grave felonies, or when an offense is
a necessary means for committing the other".
As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos reviste dos formas: (a) cuando un solo hecho constituye dos o mas delitos
(el llamado delito compuesto); (b) cuando uno de ellos sea medio necesario para cometer otro (el llamado delito complejo)." (1 Derecho Penal, 12th Ed.
650).
On the other hand, "en al concurso real de delitos", the rule, when there is "acumulacion material de las penas", is that "si son varios los resultados, si
son varias las acciones, esta conforme con la logica y con la justicia que el agente soporte la carga de cada uno de los delitos" (Ibid, p. 652, People vs.
Mori, L-23511, January 31, 1974, 55 SCRA 382, 403).
The twins are liable for eight (8) murders and one attempted murder. (See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck,
killed sixteen persons and wounded others, was convicted of sixteen separate murders, one frustrated murder and two attempted murders; People vs.
Mortero, 108 Phil. 31, the Panampunan massacre case, where six defendants were convicted of fourteen separate murders; People vs. Remollino, 109
Phil. 607, where a person who fired successively at six victims was convicted of six separate homicides; U. S. Beecham, 15 Phil. 272, involving four
murders; People vs. Macaso, 85 Phil. 819, 828, involving eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260, 271. Contra:
People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97 Phil. 975; People vs.
Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs. Cu Unjiengi, 61 Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon, 49
Phil. 437, where the crimes committed by means of separate acts were held to be complex on the theory that they were the product of a single criminal
impulse or intent).
As no generic mitigating and aggravating circumstances were proven in this case, the penalty for murder should be imposed in its medium period
or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. The death penalty imposed by the trial court was not warranted.
A separate penalty for attempted murder should be imposed on the appellants. No modifying circumstances can be appreciated in the attempted murder
case.
WHEREFORE, the trial court's judgment is modified by setting aside the death sentence. Defendants-appellants Antonio Toling and Jose Toling are
found guilty, as co-principals, of eight (8) separate murders and one attempted murder. Each one of them is sentenced to eight (8) reclusion
perpetuas for the eight murders and to an indeterminate penalty of one (1) year of prision correccional as minimum to six (6) years and one (1) day
of prision mayor as maximum for the attempted murder and to pay solidarily an indemnity of P12,000 to each set of heirs of the seven victims named in
the dispositive part of the trial court's decision and of the eight victim, Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of P500
to Amanda Mapa. In the service of the penalties, the forty-year limit fixed in the penultimate paragraph of article 70 of the Revised Penal Code should be
observed. Costs against the appellants.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-31335 February 29, 1972
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO RELOJ alias AMBOY, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L. Quiroz and Solicitor Vicente P. Evangelists for plaintiff-
appellee.
Juan L. Pastrana and Adolfo M. Iligan for defendant-appellant.

CONCEPCION, C.J .:p
Appeal by Pablo Reloj from a decision of the Court of First Instance of Aklan convicting him of the crime of murder and sentencing him to life
imprisonment, with the corresponding accessory penalties, to indemnify the heirs of Justiniano Isagan Sr., in the sum of P12,000, without subsidiary
imprisonment in case of insolvency, and "without costs." .
It is not disputed that, on July 7, 1963, at about 3:00 p.m., Justiniano Isagan Sr., was stabbed by appellant Pablo Reloj, with an ice pick wrapped in a
piece of paper, outside the cockpit in Libtong, Barrio of Estancia, Municipality of Kalibo, Province of Aklan; that, soon thereafter, Justiniano Sr. was
brought to the Aklan Provincial Hospital, where a surgical operation was performed upon him; and that, although the operation was successful and
Justiniano Sr. seemed to be in the process of recovery, he developed, five (5) days later, a paralytic ileum which takes place, sometimes, in
consequence of the exposure of the internal organs during the operation and then died. The corresponding information for murder having been filed,
the Court of First Instance of Aklan rendered, after appropriate proceedings, the aforementioned judgment of conviction.
Hence, this appeal by the defendant, who maintains that the lower court has erred: a) in giving full credence to the testimony of the main witnesses for
the prosecution; b) in not finding that he had no intent to kill; c) in holding him responsible for the death of Justiniano Sr.; d) in holding that the crime
committed by him is murder qualified by treachery; e) in not considering in his favor the special mitigating circumstance of incomplete self-defense; f) in
not considering in his favor the mitigating circumstance of lack of intent to commit so grave a wrong as that committed; g) in not considering in his favor
the mitigating circumstance of voluntary surrender to the authorities; and h) in sentencing him to life imprisonment.
The main evidence for the prosecution consisted of the testimony of Justiniano Isagan Jr., and Hermie Zante and the ante-mortem declaration, Exhibit E,
of the deceased. Justiniano Jr. testified that his father and he went to the cockpit in Libtong on July 7, 1963, at about 3: 00 p.m.; that, while his father
was standing, under a mango tree, outside the cockpit, watching Hermie Zante as he was tying a gaff on a fighting cock, defendant approached him
(Justiniano Sr.) from behind and placing his (defendant's) right hand on the left shoulder of Justiniano Sr., stabbed him, with the left hand, on the left side
of the abdomen, with an ice pick wrapped in a piece of paper; that, as Justiniano Jr. who was several steps away from his father tried to approach
him, appellant rushed at him (Justiniano Jr.) saying, "And you also"; that, accordingly, he (Justiniano, Jr.) ran away pursued by appellant; that the latter
soon gave up the chase, and, throwing away the ice pick, went to a store nearby, where a policeman later arrested him; that Justiniano Jr. then went
back to where his father was wounded; and that, on the way thereto, he picked up appellant's ice pick.
This testimony was corroborated by Hermie Zante who stated that, while he was arming the aforementioned fighting cock, and Justiniano Sr., was
watching it about 1-1/2 brazas (fathoms) away, for he wanted to bet on said cock, he (Zante) heard Justiniano Sr. groan that, as he (Zante) looked at
him (Justiniano, Sr.), he (Zante) noticed the latter holding appellant's left hand, which, in turn, held an ice pick pointed at the belly of Justiniano Sr.; that,
wresting himself from the latter's hold, appellant chased Justiniano Jr., with the ice pick still in his (appellant's) hand, saying, "And you also"; and that
Justiniano Jr. ran away, but came back, soon later, and then picked up the ice pick thrown away by appellant, who had, meanwhile, gone to the
aforesaid store nearby, where Patrolman Nacion arrested him.
Apart from the foregoing, the prosecution introduced the ante-mortem declaration, Exhibit E, taken by Police Sergeant Angelo Villanueva in the Aklan
Provincial Hospital, in the presence of Police Sergeant N. Cordova and Dr. Ciriaco Icamina, soon after Justiniano Sr. had been brought to said institution
on July 7, 1963, at about 4:00 p.m. Justiniano Sr. stated in Exhibit E that appellant had stabbed him suddenly in the abdomen, with a weapon covered
by a paper, which turned out to be an ice pick, with which appellant, likewise, tried to attack Justiniano Jr.
The prosecution, likewise, introduced the testimony of Rogelio Ibardolaza and Angel de la Cruz. The former testified that, on July 7, 1963, at about 10:00
a.m., he was in the store of one Ricamonte, in Daguitan, Madalag, Aklan; that appellant was then in the store drinking beer with two companions; and
that Ibardolaza then heard appellant say that he would first kill Justiniano Sr. and then go to Muntinglupa. Upon the other hand, Angel de la Cruz
affirmed that, on said date, at noontime, he boarded a truck headed for the cockpit at Libtong; that appellant was then in the seat in front of him (De la
Cruz); that he heard appellant tell his companion that he (appellant) was going to kill Justiniano Sr.; that appellant's companion advised him to "cool off";
that appellant replied: "Ah, linti, this Isagan, they interfere with what is not theirs"; that appellant alighted in front of the cockpit, whereas De la Cruz
proceeded to the house of Justiniano Sr. to warn him, but he (De la Cruz) was informed that he (Justiniano Sr.) was already in the cockpit; and that,
when he (De la Cruz) went to the cockpit, at about 3:00 p.m., Justiniano Sr. had already been wounded and taken to the Aklan Provincial Hospital.
Testifying in his own behalf, appellant contradicted the testimony of Ibardolaza, De la Cruz and Justiniano Jr., and stated that, on July 7, 1963, from 5:00
a.m. to 1:00 p.m., he was in his store, in the market of Kalibo, Aklan; that he left the same and headed for the cockpit, around 1:00 p.m.; that, at about
2:30 p.m., Justiniano Sr. and he bet against each other the sum of P10; that he, likewise, had bets against three other persons, whose names he did not
remember; that he won the bets, whereupon he collected what was due from his opponents; that, noticing that Justiniano Sr. was not around, he
(appellant) looked for him and found him outside the cockpit; that, when he demanded payment of the P10 due from Justiniano Sr., the latter got mad
and gave him several fist blows, but he did not retaliate; that, when he was almost groggy, he drew out the ice pick in his pocket and stabbed Justiniano
Sr. in the belly; and that, thereupon, he threw the ice pick away and proceeded to a nearby store where he waited for a policeman and voluntarily
surrendered to him.
The first assignment of error is untenable. Indeed, appellant's version - that his demand for payment of the bet he had won from Justiniano Sr. sufficed
to so enrage the latter that he boxed appellant to the extent of causing two (2) contusions and two (2) abrasions in his face and one (1) contusion in the
small finger of his right hand is inherently incredible. Besides, appellant's testimony to this effect is not only uncorroborated. It is, also, contradicted by no
less than Dr. Luvisminda Kapunan, who examined him on July 8, 1963, and asserted that said injuries had been caused over 48 hours before, or prior to
July 7, 1963, thus belying appellant's story, as well as underscoring his lack of veracity.
Besides, Justiniano Jr. and Hermie Zante, who were a few paces away from Justiniano Sr., would have noticed the attack allegedly made by the latter
upon appellant, had it really taken place. Neither Zante nor Justiniano Jr., however, had seen it. What is more, both stated that appellant was not there;
and that he forthwith stabbed Justiniano Sr. as he (appellant) appeared thereat so suddenly that Zante did not notice his arrival. Being a son of the
deceased, Justiniano Jr. may not be a disinterested witness, but, certainly, Zante had no possible reason to falsely incriminate appellant herein. What is
more, his testimony was corroborated by that of Justiniano Sr. Then, too, it appears that the latter was one of the witnesses against appellant in a
criminal action and a civil case filed by Crisanta Ureta and Edecio Venturanza, although the criminal case was dismissed before July 7, 1963, and the
hearing of the civil case did not take place until later and was eventually dismissed.
The theory of the prosecution was further corroborated by the fact that, five (5) hours before the occurrence, appellant had told his two (2) companions,
in the store of one Ricamonte in Daguitan, Madalag, Aklan, that he would first kill Justiniano Sr. and then go to prison, and that two (2) hours later,
appellant told his seatmate, in a truck headed for the cockpit at Libtong, that he (appellant) would kill Justiniano Sr., in view of which his aforementioned
seatmate advised him to cool-off. Although manifestly imprudent, We do not regard these statements as improbable, considering that appellant had
apparently been drinking in said store. Then, again, the fact that appellant brought with him the ice pick -- which he could have and would have left in his
store in the market, whence he allegedly came -- and that he had it wrapped in a piece of paper, strongly suggests that he took it with him for the
purpose of making use of it.
As regards the second assignment of error, the manifestly deadly nature of appellant's ice pick with a blade almost five (5) inches long with
which he stabbed a vital part of the victim's body (the abdomen), and the statements made by him in the store of Ricamonte "I will first kill him and
then go to Muntinglupa" and then in the truck on the way to the cockpit reiterating his intent to kill Justiniano Sr. as well as the manner in which
appellant proceeded in attacking his victim, leave no room for doubt about his intent to slay the latter.
The third assignment of error is predicated upon the fact that the immediate cause of the death of Justiniano Sr. was a paralysis of the ileum that
supervened five (5) days after the occurrence, when he appeared to be on the way to full recovery. It has been established, however, that the exposure
of the internal organs in consequence of a surgical operation in the abdomen sometimes results in a paralysis of the ileum and that said operation had to
be performed on account of the abdominal injury inflicted by appellant. It is well settled that: .
... every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a
wound with a deadly weapon in such a manner as to put life in jeopardy, and death follows as a consequence of this felonious and
wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result.
Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which are of themselves consequences of
the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in
contemplation of the guilty party, and for which he is to be held responsible. But, however, this may be, the rule surely seems to
have its foundation in a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from
human life a salutary and essential safeguard. Amid the conflicting theories of medical men, and the uncertainties attendant upon
the treatment of bodily ailments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause
of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment."
1

Considering that appellant's attack upon Justiniano Sr. was made suddenly from behind, so that the victim had no opportunity to defend himself, it is
clear that the lower court did not err in finding that the offense was qualified by treachery and that the fourth assignment of error is untenable.
Equally devoid of merit is the incomplete self-defense invoked by appellant, under his fifth assignment of error, the same being based upon his
uncorroborated testimony, which, as above indicated, is unworthy of credence and inconsistent with the treachery with which he had attacked Justiniano
Sr.
Then, again, the circumstances adverted to above, evincing appellant's intent to kill Justiniano Sr., suffice to show that there is no merit in the sixth
assignment of error.
It has been established, however, that appellant had voluntarily surrendered to the authorities and that his seventh assignment of error is, accordingly,
well taken.
And so is his last assignment of error, for there being no aggravating circumstance to offset the mitigating circumstance of voluntary surrender to the
authorities, the penalty prescribed by law for the crime of murder committed by appellant should be meted out in its minimum period and he should,
accordingly, be sentenced to an indeterminate penalty ranging from 10 years and 1 day of prision mayor to 17 years, 4 months and 1 day ofreclusion
temporal, with the corresponding accessory penalties, and the costs, apart from the indemnity imposed in the lower court's decision.
Thus modified as to the penalty, the decision appealed from should be as it is hereby affirmed, therefore, in all other respects, with costs against
appellant Pablo Reloj. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.






















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 December 28, 1964
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO CONTANTE, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Pedro M. Joven for defendant-appellant.
PER CURIAM:
Appeal from decision of the Court of First Instance of Camarines Sur finding the herein appellant guilty as charged of the crime of murder and
sentencing him therefor to suffer the capital punishment.
In the evening of June 26, 1952, shortly after partaking of his supper with his wife, Anatolio Adayo was shot to death in his own house in Panagan,
Mabaludbalud, Tigaon, Camarines Sur. Upon investigation by the local police authorities, a criminal complaint for murder was filed with the Justice of the
Peace Court of Tigaon against Tomas Garchitorena and the herein appellant, Julio Contante. At the termination of the preliminary investigation, Tomas
Garchitorena was discharged from the complaint for insufficiency of evidence and the case was forwarded to the Court of First Instance of Camarines
Sur as to the other accused, Julio Contante.
On the remand, the Provincial Fiscal forthwith filed the corresponding information for murder, alleging as qualifying circumstances evident premeditation
and treachery and the aggravating circumstance of nighttime.
At the trial, the case for the State was presented as follows:
Some four months prior to the killing, Anatolio Adayo chanced upon his wife, Luz Rodriguez, in the act of adultery with Tonias Garchitorena, a prominent
lawyer and abaca plantation owner of Tigaon, Camarines Sur. Naturally, the aggrieved husband reacted violently to the scene, although before he could
lay his hands on Garchitorena, the latter had ran and escaped, at Anatolio's indignation. However, Anatolio was able to get hold of his wife whom he
then pummeled with fist blows.
In the days that followed, Anatolio and his wife lived under a most strained relationship. As Luz herself testified, she "was punished" and "not treated
well." After about four days, however, and upon her entreaty, Anatolio forgave her, took her back and treated her once more as his wife.
A week after Luz was for given, Tomas Garchitorena returned to the house of the Adayos while Anatolio was away. He talked with her. He inquired if she
would agree to have her husband killed. In her own words at the witness stand, she was asked thus: "Luz, do you like me to have your husband killed so
that you can be mine?" As she was then sincerely contrite, she emphatically rejected the proposal. She explained that her husband had already forgiven
her and, therefore, that it was unthinkable to as much as wish him ill. She told Garchitorena that if that was how he would repay her husband's kindness,
then she would have no more of him, Garchitorena, for "I do not like you anymore." The lawyer remarked, however, that it did not matter any that she
disagreed as, nevertheless, he would kill Anatolio or have someone kill him.
Later still, on February 19, 1952, Tomas Garchitorena again dropped in at the Adayo household looking for trouble. He brought with him an M-1 rifle,
popularly known as "Carbine," and brandished it at Anatalio whom he dared to fight. By some fortunate turn of events, however, Anatolio was able to
wrest the firearm from Garchitorena, and, instead of accommodating the latter's invitation to fight, Anatolio took custody of the gun, turned the same over
to the Philippine Constabulary and caused to be filed against the lawyer separate criminal complaints for illegal possession of firearm and grave threats.
Until the trial of this case, these two criminal charges against Garchitorena were still pending.
On March 2, 1952, Garchitorena summoned to his house the overseer of his abaca plantation, Vivencio Ditan, and proposed to him the murder of
Anatolio. Caught back and unprepared by so strange a bidding, the overseer inquired from his employer what for was he plotting on the life of Anatolio.
Garchitorena replied that he wished the former to be silenced from testifying against him in the cases for illegal possession and grave threats. Ditan
declined, affirming that he could not possibly undertake the crime as Anatolio was his Godfather, a sponsor to his wedding.
A few days after rejecting Garchitorenas offer, Ditan was relieved of his post as encargado of the plantation. In his place was appointed the appellant
herein, Julio Contante However, Ditan continued to work for Garchitorena and was even assigned a room in the latter's house in the poblacion where he
would put up on nights that darkness overtook him.
One night in May, 1952, as Vivencio Ditan was about to retire to the room assigned to him in the house of Garchitorena, he heard the voices of two men
conversing in the adjacent to his. Piping through a hole in the whole separating the two rooms, Ditan saw that the voices belonged to Garchitorena and
the herein appellant, Julio Contante. As Ditan testified at the trial he overheard Garchitorena speak to Julio, thus: "You must help me because you are
my a "ahijado". This case against me is hard." Julio was then offered P500.00 to kill Anatolio Adayo plus the assurance that should he be caught or
imprisoned, he, Garchitorena, would "take care" of his family. Towards the end of the conversation, Ditan heard Julio accept the offer. The latter even
asked what weapon Garchitorena would want him to use. Tomas Garchitorena replied that a shotgun would be preferable as he, the appellant, would
more likely not miss with it.
At about 7:00 o'clock in the evening of June 26, 1952, shortly after supper, Anatolio and his wife prepared to retire for the night. Just before repairing to
their bedroom, however, Anatolio went to the main door, which was still open, presumably to close it. It seemed, however, that something stuck in the
upper portion of the door for Anatolio took a chair, placed it beside the door, stood on it and raised his hands in an attempt to reach for and move the
upper frame of the said door. At exactly the moment that he had his hands thus raised, the blast of a shotgun was heard and, almost simultaneously,
Anatolio fell dying on the floor. Though he died almost instantly, his wife clearly heard him moan "It, happened" just before passing away.
Luz screamed for help. Her shouts drew to the house of their nearby neighbors. Among those who came was a brother of the victim, Marciano Adayo,
who happened to be passing by on his way home from stripping abaca. By some coincidence, as he was rushing to his brother's place, he met the
herein appellant, upon whose face he even trained his flashlight, carrying a double-barreled shotgun and scampering away from the victim's premises.
They even had a brief exchange of words because Marciano asked Julio what the shot was about to which Julio replied he did not know. When,
therefore, he arrived at his brother's house and saw that Anatolio had been shot, he related at once to the crowd that had by then gathered his having
seen the appellant running away with a shotgun.
Another neighbor who rushed to the house was Vivencio Ditan On being told that Anatolio had been shot, he carefully examined the wounds and
observed that the victim could not have been killed by an ordinary rifle but only by a shotgun for the wounds about the victim's body were caused by
scattered pellets. At the trial, Ditan recalled that, among Garchitorena's trusted farm hands, only the appellant had been issued a shotgun by the latter.
Ditan further testified that he knew of that fact as he himself was once Garchitorena's encargado and that even as he was succeeded by the appellant as
such foreman, he continued to work for Garchitorena.
In due time, the Camarines Sur Philippine Constabulary looked for and located the appellant in Maangas, a relatively distant barrio from Panagan. He
was then taken into custody and brought to the Philippine Constabulary headquarters where he was interrogated the following day. At the PC
investigation, his statements were taken in question-and-answer method. He freely owned the crime and admitted that he carried it out at the
inducement of Tomas Garchitorena and in consideration of monetary reward. The records do not suggest any irregularity in that proceeding. The inquest
was conducted in the office of PC Lieutenant Piniones near the Southern Luzon Colleges, in the presence of a number of soldiers and, except for the
usual agitation of one being grilled, the appellant appeared normal during the entire question and answer period. As a matter of fact, the appellant
truthfully pointed to where he threw away the shotgun for the PC recovered it in the thick grass of Oscini, Tigaon as he indicated. Ballistic tests
conclusively established it as the fatal weapon.
At the end of the investigation, the appellant was brought to the Deputy Clerk of Court of Naga City before whom he freely and voluntarily signed the
statements he gave at the PC headquarters. Before affixing his signature, an employee in the said office translated for him in his vernacular the contents
of the document. Too, the Deputy Clerk of Court administered the oath and subscription only after he had satisfied himself of the appellants free
disposition on the matter. Thereafter followed a re-enactment by the appellant of the shooting during which he demonstrated the little details that
attended the commission of the crime. The re-enactment was witnessed by a PC captain, some soldiers, the Provincial Fiscal and the widow Luz
Rodriguez. Photographs of the re-enactment were likewise taken.
The defense was alibi. At the trial, the appellant offered two witnesses, Pedro Relleda and Segismundo Alvarez, who testified having seen the appellant,
on the night of the shooting at a gathering in Maangas, Lagonoy. Maangas is a barrio separated from Panagan by a two-hour boat ride and a short bus
trip. In the premises and consistently with the defense of alibi, the appellant offered evidence impeaching the testimony of Marciano Adayo. It should be
recalled that Marciano Adayo was the prosecution witness who swore having seen the appellant running away from the scene of the crime carrying a
shotgun. To discredit him, the appellant presented a number of witnesses who claimed to have seen Marciano far from Panagan at approximately the
time that the murder was committed. Thus, defense witness Teodoro Alcoba claimed that he was one of the neighbors who ran to the Adayo house in
response to the cries for help of Luz Rodriguez. He declared that Marciano was never among those who came. Another witness, Faustino Banguito,
declared that Marciano could not have been in Panagan when the incident occurred because at more or less that time, he saw Marciano in
Mabaludbalud. Finally, there was one Eligio Dacoco whose testimony was to the effect that at about 6: 00 o'clock in the evening of the day in question,
he and Marciano were together on a bus for Anawan.
Consistently too, with the defense of alibi, the appellant repudiated the extrajudicial confession he previously executed, charging that his signature
thereon was secured by force and duress.
After trial, the lower court found the appellant guilty beyond reasonable doubt "of the crime of murder qualified by treachery and with the attendance of
the aggravating circumstances of price and dwelling."
In this appeal, counsel for the appellant prays for the review of the judgment on those two points, namely First, the lower court's finding that alibi was not
sufficiently established and, second, that the circumstantial evidence presented on the case warrant a conviction.
The determination of whether or not alibi as a defense has been sufficiently established is essentially an issue of fact. The reason is because by its very
nature, alibi is established by the testimony of witnesses who vouch for the presence of the accused at some place so far removed from the scene of the
crime as to cast reasonable doubt on his actual participation in the offense charged. As a consequence, the credibility of an alibi depends so much on,
and may very well be equated with, the credibility of the witnesses who seek to establish it. On that account, therefore, and in that respect, the relative
weight which the trial magistrate assigns to the testimony of said witnesses must, unless patently and clearly inconsistent with the evidence on record,
be accepted. For his proximate contact with those who take to the witness box places him, compared to appellate Justices, in the more competent
position to discriminate between the true and the false (People v. Cristobal, G. R. No. L-13062, January 28,1961; People v. Tila on, G. R. No. L-12406,
June 30, 1961). We must decline, therefore, the request for a review of the lower court's finding on appellant's plea of alibi.
Besides, We have repeatedly ruled in the past that alibi is the weakest of all defenses as it is the easiest to fabricate and concoct. The view We have
adopted is that unless it is so convincingly demonstrated, the defense ought not be given credence (People v. de los Santos, et al., G.R. No. L- 4880,
May 18, 1953; People v. Mesias, G.R. No. L-19250, Aug. 30, 1963; People v. Ramos, G.R. Nos. L-17402-03, Aug. 31, 1963.) It is all the more true
when, as in this case, the prosecution evidence positively established the presence of the accused at the time and place of the commission of the
offense (People v. Baniaga, G. R. No. 1,14905, January 28, 1961).
The second issue refers to the sufficiency of the circumstantial evidence taken into account by the trial court. It is urged that they do not come up to the
measure sufficient to justify a verdict of guilt beyond reasonable doubt.
To warrant a conviction in criminal cases upon circumstantial evidence, such evidence must be more, than one, derived from facts duly proven, and the
combination of all of them must be such as to produce conviction beyond reasonable doubt (Rule 123, Sec. 98, Old Rules of Court; now sec. 5, Rule
133; U. S. v. Levante, 18 Phil. 439; People v. Dino, 46 Phil. 395 People v. Chan Uh, 51 Phil. 523). Of course, no general rule has been formulated as to
the quantity of circumstantial evidence which will suffice for any case, but that matters not. For all that is required is that the circumstances proved must
be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis except that of guilt (People v. Ludday, 61 Phil. 216).
How fully has the lower court applied the foregoing formulations?
The decision of the court below under appeal recites the following circumstances as demonstrating beyond doubt appellant's guilt:
1. In the early part of 1952 Tomas Garchitorena decided to kill Anatolio Adayo because he wanted the latter's wife with whom he maintained
an illicit relation exclusively for himself and in order to prevent him from testifying for the prosecution in two criminal cases in which he was the
accused;
2. To carry out his resolution, Tomas Garchitorena asked Vivencio Ditan in March, 1952 to kill Anatalio Adayo for him and when Vivencio Ditan
refused, he next asked Julio Contante in May of 1952 to do it;
3. Julio Contante agreed to kill Anatolio Adayo with a double barrel shotgun previously given to him by Tomas Garchitorena in consideration of
P500.00 to be paid by Tomas Garchitorena;
4. At about 7:00 o'clock at night of June 26, 1952, Anatolio Adayo was shot on the back while he was standing on a chair in his house and as
a result of the injuries he received he died almost instantaneously;
5. About three minutes after the shooting, Julio Contante was seen on the road about one hundred meters from the house of Anatolio Adayo
walking hurriedly and carrying a double barrel shotgun;
6. At the investigation which followed Julio Contante executed the affidavit, Exh. E, in which he admitted having shot to death Anatolio Adayo.
He also indicated therein the place where he threw the shotgun away;
7. After various searches in the vicinity pointed by Julio Contante, the shotgun (Exh. B) was found by Barrio Lt. Florentino Dacoba; and
8. Julio Contante re-enacted the shooting before Asst. Provincial Fiscal Gaudioso Tena. Exhibits C and D are pictures of the demonstration.
If the circumstances above enumerated have indeed been proved at the trial, then, We do not see any room for dispute as to their sufficiency for
conviction. They are more than one and clearly consistent with a hypothesis of guilt. Considered in their totality, they certainly exclude every reasonable
hypothesis of innocence. It all remains, therefore, for this Court to determine whether the circumstances above recited were duly proved.
Said the lower court:
Coming to the second question, it appears that of the eight circumstances relied upon by the prosecution for conviction, the first three which
concerned with the motive behind the shooting and the inducement of Julio Contante by Tomas Garchitorena to commit it, rested solely on the
testimonies of Luz Rodriguez and Vivencio Ditan who were also presented as defense witnesses. In their subsequent declaration about these
circumstances, they completely repudiated what they had previously testified stating further that their former statements on the matter did not
contain the truth. Their recantation has thus left these first three circumstances without any leg to stand on.
The evidence fully supports the fourth circumstance. It is established by the testimonies of Marciano Adayo Dr. Diosdado Lahom and Teodoro
Alcoba the latter a defense witness, not to mention Luz Rodriguez whose recantation made no reference to this circumstance. Exhs. A, F and
G corroborate effectively their testimonies. All together they prove that at about 7:00 o'clock in the evening of June 26, 1952, Anatolio Adayo
was shot on the back while he was standing on a chair in his house resulting in his instantaneous death.
The fifth circumstance is also supported by the evidence-Marciano Adayo convincingly testified that but three minutes after he heard the
gunshot from the direction of the house of Anatolio Adayo, he met Julio Contante on the road about one hundred meters from the said house
walking hurriedly and carrying a double barrel shotgun. There could be no doubt that he identified him correctly, because he turned on him his
flashlight and he even exchanged conversation with him. It is true Teodoro Alcoba testified that he did not see Marciano Adayo upon his
arrival in the house of Anatolio Adayo at about five minutes past 7:00 o'clock, but this does not necessarily prove that Marciano Adayo was not
in the vicinity of the house of Anatolio Adayo and had not gone up the house at and shortly after seven o'clock, because considering that it
took Marciano about five minutes to reach the house after he heard the shot and that about the same period of time had elapsed before
Teodoro Alcoba arrived at the house, it was probable that when the latter arrived the former had just left the house and gone out to notify his
parents of the occurrence. Moreover, the estimate of Teodoro Alcoba of the time that had passed from the moment he heard the shot until he
arrived at the house is not reliable. It was shown at the trial that he did not know what a minute is and how many minutes has an hour. When
he was asked how long he had been testifying on the witness stand, his answer was five minutes but this was wrong because he started
testifying at 9:15 and it was 9:30 when he was asked the question. It was more likely, therefore, that his estimate was inaccurate and that he
actually arrived in the house several more minutes after 7:05.
The testimony of Faustino Banquito that he saw Marciano Adayo met Luz Rodriguez in Mabaludbalud at past 7:30 p.m. of June 26, 1952,
cannot also impeach the testimony of Marciano Adayo. It will be recalled that Marciano Adayo testified that shortly after he had gone up the
house of Anatolio Adayo he left immediately for Mabaludbalud to notify his parents of the untimely death of his brother. This explains his
presence in Mabaludbalud at about 7:30 because he went in fact to the said barrio after having left the house of Anatolio Adayo.
Likewise, the testimony of Eligio Dacoco that Marciano Adayo boarded a bus in Tigaon at 6:30 p.m. of June 26, 1952 and was his co-
passenger until 6:35 cannot disprove the presence of Marciano Adayo in the vicinity of the house of Anatolio Adayo at about 7:00 o'clock in
the evening. Eligio Dacoco admitted on cross-examination that the same bus was to pass by the house of Anatolio Adayo which was only
about one kilometer from where he got off and that Marciano Adayo who continued to ride on the bus could have reached the neighborhood of
the house of Anatolio Adayo even before 6:40 of the same evening.
Lastly, the defense tried to impeach Marciano Adayo by showing that he did not reveal to any police officer the fact that he met Julio Contante.
This has no merit because Marciano Adayo communicated what he knew to Sgt. Pesimo and made a remark about it to a local policeman, but
they did not take him seriously because they said that his testimony would not be believed as he is a brother of Anatolio Adayo.
The sixth circumstance is also sufficiently supported by the evidence. The testimony of Sgt. Pesimo, Deputy Clerk Malaya and clerk Mauro
Fajardo all proved clearly that Julio Contante executed Exhibit E knowingly, freely and voluntarily.
The said sworn statement was prepared at the investigation of Julio Contante by Sgt. Pesimo. When it was finished, Julio Contante was taken
to the office of the Clerk of Court for his oath and signature. Upon reaching the said office, Deputy Clerk Malaya asked clerk Fajardo to
translate into Bicol the contents of the affidavit to Julio Contante. In compliance Fajardo translated to him each and every question and answer
appearing in the affidavit. When the translation was finished Fajardo asked Julio Contante if he understood the contents, and after Julio
Contante had replied affirmatively, Fajardo took him back to Deputy Clerk Malaya, who in turn asked Julio Contante if he understood the
contents. Julio Contante again answered in the affirmative, after which he swore to the truth of the statements and signed the affidavit before
Malaya. All these facts clearly show that Julio Contante had full knowledge of the contents and that he subscribed and swore to their truth
freely and voluntarily. There could be no doubt about its spontaneity, because the office of the Clerk of Court is always full of people and is
only a few meters from the session hall of this Court. Obviously, the use of threat, force or coercion in the said office is even unthinkable.
The finding of a bluish discoloration on the abdominal region of Julio Contante by the charity physician of Goa does not necessarily prove that
Julio Contante was maltreated by the PC soldiers. The physician testified that Julio Contante was brought to her by the PC soldiers
themselves for physical examination. If they had maltreated him, it would be the height of folly on their part to bring him for physical
examination. Moreover, the physician could not be certain when she made the examination. At one time she said she examined Julio
Contante about a month before she took vacation leave in June of 1953. Considering that the alleged maltreatment happened in July 1952,
the henatoma found at the examination could not have been caused by the maltreatment.
The seventh circumstance is likewise supported by the evidence. Julio Contante admitted in his affidavit that he threw the double barrel
shotgun, Exhibit - B, among the thick grasses near the road in Ocini while he was going to Maangas in the night of June 26, 1952. Sometime
in the middle of July, Julio Contante, accompanied by Sgt. Pesimo and Private Buenaflor, went to the place he indicated and made a search
for the shotgun, but they did not find it. However, Florentino Dacoba barrio Lieutenant of Hanagan who accompanied them, continued the
search on subsequent occasions at the request of Sgt. Pesimo and on October 10, 1952, he finally found the murder weapon near the trunk of
a big tree about one hundred meters from the spot originally pointed by Julio Contante.
The identity of the shotgun was well established. Marciano Adayo declared that it was the same gun carried by Julio Contante when he met
him. This testimony cannot be doubted, because he is familiar with the firearm having seen it many times before. The gun was also identified
by Vivencio Ditan as the one given to Julio Contante by Tomas Garchitorena for use by the former for shooting deers and wild pigs for the
latter. This part of his previous testimony was not subsequently repudiated by him. On the other hand, the testimony of Aurelio Tirzo that the
land where the shotgun was found was bulldozed in July, 1952 and he did not see then any firearm in the whole area, cannot overthrow the
evidence of the prosecution, His testimony amounts to a negative evidence and as such it cannot prevail over the positive declaration of
Florentino Dacoba. Moreover, his credibility is in doubt because he lives in a house belonging to the mother of Tomas Garchitorena.
The eighth circumstance likewise finds full support in the evidence. The testimony of Fiscal Tena and photographer Peas disclosed beyond
any doubt that Julio Contante willingly and freely re-enacted the crime. These two witnesses are disinterested parties and have no motive of
any kind to testify falsely against Julio Contante. The re-enactment strongly implies that Julio Contante really shot Anatolio Adayo to death
because he could not have repeated the same acts with all the accompanying details had he not performed them before.
While the eight circumstances only were admittedly established; still the remaining five fulfill the requisites of Rule 123, Sec. 98 of the old Rules of Court.
They still make out "an unbroken chain which leads to but one fair and reasonable conclusion which points the defendant to the exclusion of all others as
the guilty person (U.S. v. Dacusin, 2 Phil. 536; U.S. v. Villos, 6 Phil. 510)". They still lead the mind irresistibly to one conclusion, namely, the guilt of the
person charged. (U. S. v. Reyes et al., 3 Phil. 3; U. S. v. McCormick, 15 Phil. 185.)
We find no error in the appealed decision. The crime committed was murder qualified by treachery and aggravated by the circumstances of price and
dwelling.
Before passing sentence, however, this Court would like to make of record its concurrence with the serious observation of the Solicitor General's Office
that there seems to have been allowed in this case a "travesty of justice." A simple, uneducated farmer has been made to shoulder the full burden of
somebody else's evil. Without, of course, condemning him before he has been heard, it is this Court's profound view that Atty. Tomas Garchitorena
should not have been excluded at all from the prosecution of this case. This is not to say Tomas Garchitorena is guilty; this is only to point out that
justice and the rule of law would have been served far more by his inclusion rather than by his exclusion from the indictment prepared against Julio
Contante alone.
This Court would, therefore, hope that the Department of Justice would inquire into this aspect of the case. If the prosecution of Tomas Garchitorena is
still feasible within the framework of existing laws, he should be tried. Not only that truth may come out, but more so that Tomas Garchitorena may have
his day in court.
IN VIEW OF ALL THE FOREGOING, and considering the apparent lack of education of the appellant Julio Contante, this Court is unable to reach the
requisite votes for the imposition of the death penalty. Consequently, the sentence of the lower court is hereby lowered to the penalty next lower in
degree, reclusion perpetua. And, conformably with previous decisions of this Court, the indemnity for the heirs of the victim should be increased to
P6,000. With costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.















































Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6025 May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
-----------------------------
G.R. No. L-6026 May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of Manila, Hon. Agustin P. Montesa,
presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In
Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V.
Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres
Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-
6026) the charge is for rebellion with murders, arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all
appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until the present time, in the City of
Manila, Philippines, and the place which they had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as well as with the thirty-one (31) defendants
charged in Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and their other co-conspirators, being then high ranking
officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an
armed rebellion against the Government of the Philippines thru act theretofore committed and planned to be further committed in Manila and
other places in the Philippines, and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as the
"Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct
and/or command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms against the
Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing the territory of the Philippines
from the allegiance to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen
publicly and taken arms to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against police,
constabulary and army detachments as well as innocent civilians, and as a necessary means to commit the crime of rebellion, in connection
therewith and in furtherance thereof, have then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction
of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid
purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians by Huks on May 6, 1946, August 6, 1946, April
10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12,
1950, March 28, 1950 and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated the said accused in the above-entitled case,
conspiring among themselves and with several others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known as the Committee on Labor Organizations (CLO), with central offices
in Manila and chapters and affiliated or associated labor unions and other "mass organizations" in different places in the Philippines, as an
active agency, organ, and instrumentality of the Communist Party of the Philippines (P.K.P.) and as such agency, organ, and instrumentality,
to fully cooperate in, and synchronize its activities as the CLO thus organized, established, led and/or maintained by the herein accused
and their co-conspirators, has in fact fully cooperated in and synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng
Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to thereby assure,
facilitate, and effect the complete and permanent success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the City
of Manila, the seat of the government of the Republic of the Philippines, which the herein accused have intended to overthrow, and the place
chosen for that purpose as the nerve center of all their rebellious atrocities in the different parts of the country, the said accused being then
high ranking officials and/or members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter being the armed forces of said Communist Party of the
Philippines; having come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the
Court of First Instance of Manila and decided to commit the crime of rebellion, and therefore, conspiring and confederating with all of the 29
accused in said criminal cases, acting in accordance with their conspiracy and in furtherance thereof, together with many others whose
whereabouts and identities are still unknown up to the filing of this information, and helping one another, did then and there willfully, unlawfully
and feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps (HUKS)
to rise publicly and take Arms against the Government or otherwise participate therein for the purpose of overthrowing the same, as in fact, the
said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by then and
there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachment, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and there committing wanton acts of murder,
spoilage, looting, arson, kidnappings, planned destruction of private and public buildings, to create and spread terrorism in order to facilitate
the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or civilians by Huks on
May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26, 1950,
August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following: (1) that he is a member of the Communist Party of
the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as other
publications of the Party; (3) that he held the position of President of the Congress of Labor Organizations; (4) that he had close connections with the
Secretariat of the Communist Party and held continuous communications with its leaders and its members; (5) that he furnished a mimeographing
machine used by the Communist Party, as well as clothes and supplies for the military operations of the Huks; (6) that he had contacted well-known
Communists coming to the Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was
also received by the court that Hernandez made various speeches encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress of Labor Organizations, of which Hernandez was the
President, and that this Congress was organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo
Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary evidence, independently of each other, to find out if
the said evidence supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices of the Congress of Labor
Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was
given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis". He made various speeches on the following dates
and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he announced that the people will soon
meet their dear comrade in the person of Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos told Goufar that the PKM, CLO
and the Huks are in one effort that the PKM are the peasants in the field and the Huks are the armed forces of the Communist Party; and the
CLO falls under the TUD of the Communist Party. 1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of Trade Unions and after arrival
from abroad a dinner was given to him by the people of Gagalangin, at which Hernandez delivered a speech and he said that he preferred to
go with the Huks because he felt safer with them than with the authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947 elections, graft and corruption in
the elections and that if improvement cannot be made by the ballots, they could be made by bullets; and enjoined the people to go to the hills
and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at the CLO headquarters at 330 P.
Campa. He attacked the city mayor and incited the people to go to Balintawak and see Bonifacio there and thereafter join four comrades
under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He asked the unemployed to
approve a resolution urging the Government to give them jobs. In conclusion he said that if the Government fails to give them jobs the only
way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove
Chiang Kai Shek from his country, and that Luis Taruc was also being chased by Government forces run by puppets like Quirino, etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed regret that two foremost leaders of the
CLO, Balgos and Capadocia, had gone to the field to join the liberation army of the HMB, justifying their going out and becoming heroes by
fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and violence; thru armed revolution
and replace it with the so-called dictatorship of the proletariat the Communist Party carries its program of armed overthrow of the present
government by organizing the HMB and other forms of organization's such as the CLO, PKM, union organizations, and the professional and
intellectual group; the CLO was organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were also top ranking officials of the
Communist Party; activities undertaken by the TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially the Executive Committee. And it is a fact that since
a good majority of the members of the Executive Committee are party members, there is no time, there is no single time that those directives
and decisions of the organizational department, thru the TUD are being objected to by the Executive Committee of the CLO. These directives
refer to how the CLO will conduct its functions. The executive committee is under the chairmanship of accused Amado V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the present government and its replacement by the
dictatorship of the proletariat by means of propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,
medicine and other forms of material help to the HMB. This role is manifested in the very constitution of the CLO itself which expounded the
theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained in the Fourth
Annual Convention Souvenir Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted the aims of Communist Party and
disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662), founder of Communism in the
Philippines, in the session hall of the CLO headquarters at 2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World Federation of Trade Union Magazine, International
Union of Students magazine, Voice magazine of the marine cooks of the CLO, World Committee of the Defenders of the Peace
magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World Federation of Democratic Youth magazine (Exhs. V-
911, V-907, V-910, V-899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the "Titis", "Bisig", Kidlat", which are Communist
Party organs; "The Philippine Labor Demands Justice" and "Hands Off Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by means of organization of committees in the
educational department as well as researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members and selected leaders of the HMB
within the trade unions under the control of the CLO. The Communist Party thru the CLO assigned Communist Party leaders and organizers to
different factories in order to organize unions. After the organization of the union, it will affiliate itself with the CLO thru the Communist leaders
and the CLO in turn, will register said union with the Department of Labor; and the orientation and indoctrination of the workers is continued in
the line of class struggle. After this orientation and infiltration of the Communist Party members and selected leaders of the HMB with the trade
unions under the control of the CLO is already achieved and the group made strong enough to carry out its aims, they will begin the sporadic
strikes and the liquidation of anti-labor elements and anti-Communist elements and will create a so-called revolutionary crisis. That
revolutionary crisis will be done for the party to give directives to the HMB who are fighting in the countrysides and made them come to the city
gates. The entry of the HMB is being paved by the simultaneous and sporadic strikes, by ultimate general strikes thru the management of the
CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his sympathies for other communists,
describing his experiences with Communists abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-2001-
2004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor heads one group, consisting of the
MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor from co-party members Hugo and
Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not published in the newspapers. (Exh. C-362) Letter
was however published by Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to bring to the latter communications from
the Communist Party. (Exh. D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of careerism and tendency to want to
deal with leaders of the party"; that he should be asked to choose to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-87) (1) His election as councilor until
December, 1951. (Exhs. V-42, W-9) (2) His election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120)
(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks and Stewards, states that labor has
one common struggle "the liberation of all the peoples from the chains of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc. Tells of reward of P100,000.00 on
Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption and graft in Quirino administration, etc.
(Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and Government. (Exh. V-94) .
(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks North Atlantic Pact. Praises Mao
Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" (Exh. V-287)
(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the field. Letters show of sending of
supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued press release about their going underground.
(Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as a party and in order to carry out its
aims and policies a established a National Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB), and
National Courier or Communication Division (NCD), each body performing functions indicated in their respective names; (2) that in a meeting held on
August 11, 1950 the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950 the SEC
organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body known as the National Intelligence Division was
created, to gather essential military intelligence and, in general, all information useful for the conduct of the armed struggle (4) that a National Finance
Committee was also organized as a part of the Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco comprising
the Manila and suburbs command; (6) that since November, 1949 the CPP had declared the existence of a revolutionary situation and since then the
Party had gone underground and the CPP is leading the armed struggle for national liberation, and called on the people to organize guerrillas and
coordinate with the HMB on the decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP
prepared plans for expansion and development not only of the Party but also of the HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000
in September 1951, the HMB from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political purposes. The Politburo sanctioned the
attacks made by the Huks on the anniversary of the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in May,
1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6,
1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950; March 29,
1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had taken a direct part in those raids and in the
commission of the crimes that had been committed. It is not, however, the theory of the prosecution that they in fact had direct participation in
the commission of the same but rather that the defendants in these cases have cooperated, conspired and confederated with the Communist
Party in the prosecution and successful accomplishment of the aims and purposes of the said Party thru the organization called the CLO
(Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the CPP, having its own National
Congress, a Central Committee (which acts in the absence of and in representation of the National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee are not in session), and seven permanent Committees, namely, of Organization,
Unemployment and Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist Party
dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which Hernandez was the President, is described by the court
below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained by witness Guillermo S. Calayag,
one-time ranking member of the Communist Party and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia,
which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary
aid, clothing, medicine and other material forms of help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done by
lectures, meetings, and the organization of committees of the educational department as well as researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders to act as organizers in the different
factories in forming a union. These Party Members help workers in the factories to agitate for the eradication of social classes and ultimately
effect the total emancipation of the working classes thru the establishment of the so-called dictatorship of the proletariat. It is the duty of these
Communist Party members to indoctrinate uninitiated workers in the union to become proselytes of the Communist Party ideology. After the
right number is secured and a union is formed under a communist leader, this union is affiliated with the CLO and this in turn registers the
same with the Department of Labor. The orientation and indoctrination of the masses is continued with the help of the CLO. The primary
objective of the CLO is to create what is called a revolutionary crisis. It seeks to attain this objective by first making demands from the
employers for concessions which become more and more unreasonable until the employers would find it difficult to grant the same. Then a
strike is declared. But the strikes are only preparation for the ultimate attainment of the Communist goal of armed overthrow of the
government. After the workers in the factories have already struck in general at the behest of the Communist Party thru the CLO a critical point
is reached when a signal is given for the armed forces of the Communist Party, the HMB, to intervene and carry the revolution now being
conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against him and sentenced him to suffer the
penalty of reclusion perpetua with the accessories provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by the Solicitor General in his brief,
discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently exhorting
his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes against capitalism and more specifically against America and the
Quirino administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of Communistic Theory there
appears no evidence that he actually participated in the actual conspiracy to overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays
merely the role of propagation by lectures, meetings and organization of committees of education by Communists; if, as stated, the CLO merely allowed
Communist Party leaders to act as organizers in the different factories, to indoctrinate the CLO members into the Communist Party and proselytize them
to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by making
demands from employers for concessions until the employers find it difficult to grant the same, at which time a strike is declared; if it is only after the
various strikes have been carried out and a crisis is thereby developed among the laboring class, that the Communist forces would intervene and carry
the revolution it is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the Communist' ultimate revolution. In
other words, the CLO had no function but that of indoctrination and preparation of the members for the uprising that would come. It was only a
preparatory organization prior to revolution, not the revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a
leader in actual rebellion or of the actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his presidency and
leadership of the CLO cannot be considered as having actually risen up in arms in rebellion against the Government of the Philippines, or taken part in
the conspiracy to commit the rebellion as charged against him in the present case; he was merely a propagandist and indoctrinator of Communism, he
was not a Communist conspiring to commit the actual rebellion by the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had declared the existence of the revolutionary situation
and since then the Party had gone underground, with the CPP leading the struggle for national integration and that in the month of January 1950, it was
decided by the said Party to intensify the HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-
conspirator in this resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion unwarranted. The seditious
speeches of Hernandez took place before November, 1949 when the CPP went underground. The court below has not been able to point out, nor have
We been able to find among all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he took part in the
deliberations declaring the existence of a revolutionary situation, or that he had gone underground. As a matter of fact the prosecution's evidence is to
the effect that Hernandez refused to go underground preferring to engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial and which were confiscated from the office of the
Politburo of the Communist Party. The speeches of Hernandez were delivered before the declaration by the Communist Party of a state of revolutionary
situation in 1949. Neither was it shown that Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist
Party; so NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In short, there has been no evidence,
direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to continue or maintain said uprising, his participation in
the deliberations leading to the uprising being inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for important members, if they intend actually to join the
rebellion, to go underground, which meant leaving the city, disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1, 1950, to Saulo and Hernandez, which
reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem of fighting legally to Com.
Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and other
relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground forces outside the City, Hernandez remained in the
City, engaged in the work of propaganda, making speeches and causing the publication of such matters as the Communist Party leaders directed him to
publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following reasons (excuses) given by him for not going
underground, namely (1) that his term of councilor of the City of Manila was to extend to December, 1951; and (2) that he was elected President of the
CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and reported to the Politburo that Hernandez
"has tendencies of careerism, and tending to want to deal with leaders of the Nacionalista Party instead of following CPP organizational procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very document dated December 3, 1949,
Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not been
received. It is true that some clothes had been sent thru him to the field, but these clothes had come from a crew member of a ship of the American
President Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine received
by Hernandez from one Rolland Scott Bullard a crew member of the SS President Cleveland, appease later to have been forwarded by him to the
officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn issued press releases for which he
found space in the local papers. His acts in this respect belong to the category of propaganda, to which he appears to have limited his actions as a
Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not prove that he actually and in fact
conspired with the leaders of the Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the information. And his
refusal to go underground because of his political commitments occasioned by his term of election as president of the CLO and the impressions caused
by his acts on the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista Party to which he was
affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his political ambitions, that motivated his speeches
sympathizing with the Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt that he has conspired in the
instigation of the rebellion for which he is held to account in this criminal case.
The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per se render Hernandez or any
Communist guilty of conspiracy to commit rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and proposal to commit rebellion or insurrection
shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by prision
correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of conspiracy unless transformed or
converted into an advocacy of action. In the very nature of things, mere advocacy of a theory or principle is insufficient unless the communist advocates
action, immediate and positive, the actual agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of
the working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually advocated or intended or
contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of the proletariat a Communist does not yet advocate the
seizing of the reins of Government by it. As a theorist the Communist is not yet actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit rebellion.
Borrowing the language of the Supreme Court of the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to
the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be
sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth
Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by
this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords
an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a
member of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its purposes and activities on
one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the
organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a
criminal enterprise which is lent for instance by a commitment on the part of the conspirator to act in furtherance of that enterprise. A member,
as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby
necessarily committing himself to further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of labor through his organization, the
CLO. While the CLO of which he is the founder and active president, has communistic tendencies, its activity refers to the strengthening of the unity and
cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against
Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor activities especially in connection with
the CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to support his political ambitions. It is doubtful
whether his desire to foster the labor union of which he was the head was impelled by an actual desire to advance the cause of Communism, not merely
to advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any particular act on his part been pointed to
Us, which would indicate that he had advocated action or the use of force in securing the ends of Communism. True it is, he had friends among the
leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended
their meetings, or collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof. Insofar
as the furnishing of the mimeograph machine and clothes is concerned, it appears that he acted merely as an intermediary, who passed said machine
and clothes on to others. It does not appear that he himself furnished funds or material help of his own to the members of the rebellion or to the forces of
the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the rebellion, is clear proof of his non-
participation in the conspiracy to engage in or to foster the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of Communism and in favor of rebellion
can be considered as a criminal act of conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and rendering
speeches favoring Communism would not make him guilty of conspiracy, because there was no evidence that the hearers of his speeches of
propaganda then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the
principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara la subasta de consumes se
echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un
delito de conspiracion para la sedicion? El Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia,
que entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas
personas se conciertan para la execution de un delito y resuelven cmeterlo; y no constando que existiera ese concierto en cuanto a los
hechos que se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin
expresar el efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o no lo que se las propuso,
resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.)
(Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt that the appellant (Hernandez)
actually participated in the rebellion or in any act of conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the crime charged, with a proportionate share of the
costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and were each sentenced to suffer the
penalty of 10 years and 1 day of prision mayor, with the accessories provided by law, and to pay their proportionate share of the costs.
Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is believed useful if not necessary to lay dawn the
circumstances or facts that may be determinative of their criminal responsibility or the existence or nature thereof. To begin with, as We have
exhaustively discussed in relation to the appeal of Hernandez, we do not believe that mere membership in the Communist Party or in the CLO renders
the member liable, either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely implies advocacy of
abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal only if it is coupled with action or
advocacy of action, namely, actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to secure, as the Huks pretend, the
liberation of the peasants and laboring class from thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by
such membership he agrees or conspires that force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more,
renders the member guilty of conspiracy to commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like soliciting contributions, or acting as
courier, he thereby becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which latter case he commits
rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the purpose of which was to overthrow the
government by force. Each of the defendants on various times solicited funds from the people of Mexico, Pampanga. The Court held that the defendants
were guilty of conspiracy and proposal to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of inciting, setting or foot, or assisting or
engaging in rebellion, but rather of the crime of conspiring to overthrow, put down, and destroy by force the Government of the United States
in the Philippine Islands, and therefore we find that said defendants, and each of them, did, together with others, in the months of February
and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the Government
of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO member of the Central Committee of the
CPP and as such committed to the establishment of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore be absolved of the charges
contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a communications center of the Communist
Party, having been found in possession of letters from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government Workers Union, receiving copies of the
Titis. Calayag testified that he was a member of the Central Committee of the Communist Party entrusted with the duty of receiving directives of the
Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went underground. We have been unable to find the
evidence upon which the court bases its conclusion that he received contributions for the Huks. With these circumstances in mind, We are not convinced
beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of the Communist Party to take part and support the
rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a member of the Central Committee
and Treasurer of the CLO. He admitted his membership and his position as member of the executive committee and treasurer of the CLO these facts
being corroborated by the witness Guillermo Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz received quotas and monetary
contributions coming from the areas under his jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters at
Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions for the party indicate that he is an active member, it was not shown
that the contributions that he received from Communist Party members were received around the year 1950 when the Central Committee of the
Communist Party had already agreed to conspire and go underground and support the Huk rebellion. Under these circumstances We cannot find him
guilty of conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and Central Committee member of the CLO
as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of the laborers. He also admitted being
a member of the Central Committee of the CLO Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber Unions
and attended a Communist meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio Pamintuan, one of the members of the HMB
Special Unit Trigger Squad) in Manila for the use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his contributions he actually participated in
the conspiracy to overthrow the government and should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in soliciting contributions, in cash and in
kind, from city residents for the use of the HMB, turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his house
at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of the court are fully supported by the testimony of Domingo
Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by soliciting contributions for it and had
given shelter to the Huks. We feel that the court was fully justified in finding him guilty, but We hold that he should be declared liable merely as a co-
conspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the Communist Party since 1945; that his duties as a
Communist was to help in the office of the National Finance Committee, assorting papers and written documents; that sometimes he accompanied the
purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP
in Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier of the Communist Party, when he
asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence submitted by the prosecution. The exhibits show that he
was in constant communication with the communists; serving them as courier. His oath as a member of the Communist Party was submitted in court and
in it he admits obedience to all orders of the Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani Espiritu was in constant
communication with the Communist Party and served it as courier, We believe that the court was fully justified in finding him guilty. However, We believe
that not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto Alejandrino, who later became her
common-law husband; that her aliases are "Estrella" and "Star"; that she was found in possession of various documents written to top Communists like
Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija, later Chairman of the Finance Department, and
then promoted to Finance Officer of the Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains to
Teopista Valerie, who was in turn also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that she herself was, aside from being a
Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and
considering that the HMB was engaged in an uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with
the other members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that she is
guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was
dismissed because they have not been apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the
Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act
No. 292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held guilty of
inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any organization or association committed to
subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the
commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an
organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J. Cruz, Amado Racanday and
Genaro de la Cruz are absolved from the charges contained in the information, with their proportionate share of the costs de oficio. The defendants-
appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and
Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby sentenced to suffer imprisonment for five years, four
months and twenty-one days of prision correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their
proportional share of the costs. So ordered.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 132875-76 November 16, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.
YNARES-SANTIAGO, J .:
This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them
present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human dignity.
No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and
good order of the community.
1

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.
2

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always scrutinized
with extreme caution.
3

In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the facts
on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12) years of
age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian
whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of lasciviousness on
distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted
by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which
he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media and
public attention. In the words of accused-appellant, "he has been demonized in the press most unfairly, his image transmogrified into that of a dastardly,
ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires."
4
This Court, therefore, punctiliously considered accused-
appellants claim that he suffered "invidiously discriminatory treatment." Regarding the above allegation, the Court has ascertained that the extensive
publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses.
This is an appeal from the decision
5
of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting accused-
appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993,
for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act
No. 7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was
acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion
of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO
JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn
Delantar against her will, with damage and prejudice.
CONTRARY TO LAW.
6

In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO
JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old
minor Rosilyn Delantar against her will, with damage and prejudice.
CONTRARY TO LAW.
7

For acts of lasciviousness, the informations
8
under which accused-appellant was convicted were identical except for the different dates of commission on
June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO
JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as
the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and
feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert
his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant
P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial,
the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A to EEEE,
inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153,
inclusive of submarkings. The records of the case are extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey
apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose
ostensible source of income was sellinglongganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade
as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young age
of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio
whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr.
Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio
were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn become an
actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio answered, "10. She is going to be 11 on May 11." Accused-
appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, "Tell Me You Love Me." Accused-appellant then
asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-
appellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-
appellant assured them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, "Valiente" and "Eat Bulaga."
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, said that he would
adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went home, accused-
appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and
Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and
Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-appellant referred the
preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards the
elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When accused-
appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while,
accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room
again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, "Halik lang naman."
Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out clad in a
long white T-shirt on which was printed the word, "Dakak." In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to
change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-appellant answered, "Daddy mo naman ako."
Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, "Huwag po." Again, accused-
appellant told her, "After all, I am your Daddy." Accused-appellant then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed
her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, "Tama na po." Accused-
appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her hand
and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyns body, he caressed
her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then,
he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in front of
her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and
told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went home.
Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz Towers. Simplicio told her that
everything was alright as long as accused-appellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant
removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside Rosilyn
and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant
removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her thighs. Thereafter, accused-
appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair, and
thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed her
breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait
for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she
should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in his bedroom.
Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with a long T-shirt on
which was printed a picture of accused-appellant and a woman, with the caption, "Cong. Jalosjos with his Toy." They watched television for a while, then
accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself between the spread legs
of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex
organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier that
morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off to school
with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers.
Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching television for a while, accused-appellant
knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between Rosilyns thighs,
and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She, however, ignored him
and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when the
latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose with
her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her pubis,
and finally, while straddled on a chair facing the backrest, showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning, she
woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody caressing her breasts
and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between 12:00 to
1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her lips and
inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-appellant
stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina. Rosilyn
felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio
arrived, Rosilyn gave her the money and then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes,
including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed Rosilyn on
the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow
under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After that, he lifted his
shirt, then pointed and pressed his penis against her vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter,
accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found
P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to come
back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City
Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social
Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal
charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no
secretions could be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in
between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep
healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and
the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
9

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador "Jun" Jalosjos, whom Rosilyn
had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates
Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort
money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political career
and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He
stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,
10
showing that he was on board Flight PR 165; the said
flights passengers manifest,
11
where the name JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents welcoming his
arrival and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met
Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as
"Barangay House" in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30 p.m.
Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the "Barangay House"
in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which lasted
till the afternoon. In the evening, he went home and slept in the "Barangay House."
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the "Barangay House."
On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish
Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in
Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996, when he
attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown
by a private plane to Dipolog, where he stayed until the President of the Philippines arrived.
To buttress the theory of the defense, Dominador "Jun" Jalosjos testified that he was the one, and not accused-appellant, whom Rosilyn met on three
occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar were
introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the
proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling
potentials. His testimony made no mention of any sexual encounter with Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO
JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code.
He is hereby declared CONVICTED in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages
for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt
the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of
the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared
CONVICTED in each of these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its
medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages for
each of the cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable
doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of
reasonable doubt, the accused in these cases is hereby ACQUITTED.
SO ORDERED.
12

Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE
COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE
PRIVATE COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE
ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE
WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.
13

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of innocence
requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the prosecution
must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable
consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private
complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of
lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her
stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus in uno
falsus in omnibus" (false in part, false in everything).
14

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern
jurisprudence.
15
Thus, in People v. Yanson-Dumancas,
16
citing People v. Li Bun Juan,
17
this Court held that:
... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly
reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller,
46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:
"18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said;
they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and
circumstances to be the truth Even when witnesses are found to have deliberately falsified in some material particulars, the jury
are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief."
(p. 945)
18

Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony of
Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which, as oft-
repeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:
Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped.
Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993)
considering that "no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be
perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished." (People v. Buyok, 235
SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her
testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-
examination made by the defense counsel.
19

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points to the supposed
hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such as, "Ano po?",
"Parang po," "Medyo po," and "Sa tingin ko po."
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm
and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural words
customary of children of her age. The above phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor
General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer merely
to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested and subjected
to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and
confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.
20

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as well as
in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis
E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that "rape" is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed,
without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and
consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of rape.
This is especially true in the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the victims vagina.
It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual
act to rape.
In People v. Campuhan,
21
we ruled that rape is consummated "by the slightest penetration of the female organ,i.e., touching of either labia of the
pudendum by the penis." There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no showing
that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and
DSWD social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing his sex organ against her labia
without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were
spread wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari ko." (Italics supplied)
Q: And, after doing that: "Idinikit-dikit niya yong ari niya sa ari ko"; what else did he do?
A: After that, "Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko." (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the
woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs.
Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). "Penetration of the penis by entry into the
lips of the female organ suffices to warrant a conviction." (People vs. Galimba, G.R. No. 111563-64, February 20, 1996 citing People vs.
Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against ("idiniin") and pointed to ("itinutok")
Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were consummated.
22

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to
charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus no
occasion for her to narrate the details of her sexual encounter with accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional and
psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence thereof.
Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations
complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns
declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her
testimonies given in open court, the latter commands greater weight than the former.
23

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her
abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was
merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented his
brother, Dominador "Jun" Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador "Jun" Jalosjos who allegedly met and interviewed
Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for
identification, she picked up only 4, which depict Dominador "Jun" Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic
sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador "Jun" Jalosjos. Accused-
appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the
courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant as her
abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-appellants office.
Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identify the culprit
even without knowing his name. Similarly, the Court, in People v. Vasquez,
24
ruled that:
It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary person in
making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-
appellant as their assailant.
Even in the case of People v. Timon,
25
relied upon by accused-appellant to discredit his identification, this Court said that even assuming that the out-of-
court identification of accused-appellant was defective, their subsequent identification in court cured any flaw that may have initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the credibility of her
unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic sketch which, incidentally, resembles
accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features.
Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower right jaw, cannot affect the
veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to
accused-appellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory.
When she was asked to give additional information about accused-appellant, Rosilyn described him as having a "prominent belly." This, to our mind, is
indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words "idinikit," "itinutok," and "idiniin-diin," which Rosilyn used to describe what accused-
appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see
accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her
thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns external
genitals, the same is not enough to establish the crime of rape.
True, in People v. Campuhan,
26
we explained that the phrase, "the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge," means that the act of touching should be understood here as inherently part of the entry of the
penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora,
labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a
thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence
dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
27

In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond "strafing of the citadel of passion" or "shelling of
the castle of orgasmic potency," as depicted in the Campuhan case, and progressed into "bombardment of the drawbridge [which] is invasion
enough,"
28
there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns
wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally wide open and
ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone who
looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-
appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the "idiniin" part
of accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: "idinikit-dikit niya ang ari niya sa ari ko," be incorporated?
Q. And while he was doing that; according to you, "idinikit-dikit niya ang ari niya sa ari mo;" what did you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, "idinikit-dikit niya yong ari niya sa ari ko?"
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or "ari" was being touched by the ari or penis?
x x x x x x x x x
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, "idinikit-dikit niya yung ari
niya sa ari ko?"
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you,
"idinikit-dikit niya yong ari niya sa ari mo?"
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the position of Congressman Jalosjos when he was
doing that. "Idinikit-dikit niya sa ari ko?"
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
x x x x x x x x x
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed.
x x x x x x x x x
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe
what was done to you?
A. After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito."
Q. O.K. you said "itinutok niya ito;" what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be "parang idinidiin po niya."
Q. Now, what did you feel, when according to you; as I would quote: "parang idinidiin niya?"
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said "nakaganuon siya" what do you mean by "nakaganuon siya?"
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said "idinidiin po niya;" to which you are referring? What is this "idinidiin niya?"
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was "idinidiin niya ang ari niya sa ari ko?"
A. Masakit po.
COURT:
The answer is "masakit po."
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
x x x x x x x x x
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
x x x x x x x x x
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)
29

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave and uninitiated to
conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced
between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-
appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the
resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
x x x x x x x x x
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were
spread wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari ko."
Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: "idinikit-dikit niya yong ari niya sa
ari ko?"
A. I was afraid sir.
Q. And, after doing that: "idinikit-dikit niya yong ari niya sa ari ko," what else did he do?
A. After that, "itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko."
Q. You said: "Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko;" Now, while he was
doing that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward
movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or "ang ari niya ay nakatutok
at idinidiin-diin yong ari niya sa ari mo?"
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.
30

The childs narration of the rape sequence is revealing. The act of "idinikit-dikit niya" was followed by "itinutok niya xxx at idiniin-diin niya." The "idiniin-
diin niya" was succeeded by "Masakit po." Pain inside her "ari" is indicative of consummated penetration.
The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June 21 to
June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile, somehow made it
inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein
perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim was
passive and even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of holding, guiding
and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely result in even the
slightest contact between the labia of the pudendum and accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is highly
improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully consummating
the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of
Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and desisted from fully
penetrating her, when Rosilyn was then entirely at his disposal.
The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual
perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word "perverse" is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would call
downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others. For
all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child from the
womb of a minor; or because of his previous agreement with his "suking bugaw," Simplicio Delantar, that there would be no penetration, otherwise the
latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-
appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate her. Such instance of
penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there was no
rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape
charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs
would not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from the above-quoted
portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even if she did not
actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster the
declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;
31

(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;
32

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;
33

(4) Marked pages of the Cord Dressing Room Book;
34

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar)
patient file number (39-10-71);
35

(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-
14, 1985.
36

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar, accused-
appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has already been
ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April
11, 1997.
37
However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No.
45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome
of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven
years old at the time she was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,
38
we ruled that the birth certificate, or in lieu thereof, any other
documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of similar nature,
can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live
Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of birth
was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and corroborative of
Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,
39
the Court laid down the requisites for the application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially
enjoined by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be kept,
nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official
registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.
40

Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal
keeper thereof.
41
It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the entry
may be admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the reasons for
this exception to the hearsay rule.
42

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,
43
mandates hospitals to report and register with the local civil registrar the
fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or
imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the
necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing
Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of the
hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory to
registration of said entries with the local civil registrar, in compliance with a duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985, but
Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or by
a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility. What
is important is that the entries testified to by Avenante were gathered from the records of the hospital which were accomplished in compliance with a
duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and material
facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the preparation of
the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up,
particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn
against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they were
knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns appearance
belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-
1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the defense was able to
prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The
evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and
July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and 21,
1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful review of
the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes
were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his positive
identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was impossible for him to
have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40 a.m. The
possibility, therefore, of accused-appellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded.
For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn
was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children
exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x x x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3,
for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x
. (Emphasis supplied.)
In People v. Optana,
44
the Court, citing the case of People v. Larin,
45
explained the elements of the offense of violation of Section 5 (b) of R.A. 7610, or
the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious
conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA
7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition."
"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as follows:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis
between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted accused-
appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and
96-1993, charging him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its
medium period.
The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These insertions
took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it indicates state
policy on rape. The Revised Penal Code is now amended to read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned
above be present.
2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis
supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against persons. Any public
prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised Penal
Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant the maximum penalty
of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium period of reclusion temporal medium,
pursuant to our ruling in Dulla v. Court of Appeals.
46
Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a minimum term of
the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code.
47
However, the trial court erroneously
fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period. In the
aforesaid case of Dulla,
48
we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range of which
is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610,
accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years,
six (6) months and twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended
Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to
the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the
sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory
rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the
victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.
49

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the
prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual advances of accused-appellant, was of no moment. The fact that accused-
appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under Section 5
(b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.
50
On the other hand, the award of the amount of P50,000.00 as moral damages for
each count of statutory rape was correct.
In People v. Lor,
51
citing the cases of People v. Victor,
52
and People v. Gementiza,
53
we held that the indemnity authorized by our criminal law as civil
indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and
should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial
discretion.
54
Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and
acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant
Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each
count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-
1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED
with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of
twelve years (12) and one (1) day ofreclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each
count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is increased to
P50,000.00.
SO ORDERED.
Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and
Carpio, JJ., concur.
























FIRST DIVISION
[G.R. No. 122099. July 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
D E C I S I O N
YNARES-SANTIAGO, J .:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela
Torre, George dela Torre, Bonifacio Bancaya and several others who are still at large were charged in two (2) separate Amended Informations with
Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information
[1]
for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, all armed with bladed weapons
and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of superior strength did then and there willfully, unlawfully and
feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his body, thereby inflicting upon the latter mortal wounds which directly
caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information
[2]
for Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction this Honorable Court,
the above-named accused, conspiring, confederating together, mutually helping and aiding one another, with intent to kill did then and there willfully,
unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions of his body, thereby
inflicting serious and mortal wounds which would have cause[d] the death of the said victim thus performing all the acts of execution which should have
produce[d] the crime of Homicide as a consequence but nevertheless did not produce it by reason of causes independent of their will, that is by timely
and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their other co-
accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito Listerio because his co-accused Samson dela
Torre escaped during the presentation of the prosecutions evidence and he was not tried in absentia. The dispositive portion of the decision
[3]
reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one (1) day as
minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.
[4]

Dissatisfied, accused Agapito Listerio interposed this appeal alleging that
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF
CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness account of Marlon Araque
discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from a
certain Tino.
[5]
Having failed to collect anything from Tino, Marlon and Jeonito then turned back.
[6]
On their way back while they were passing Tramo near
Tinos place,
[7]
a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya
[8]
blocked their
path
[9]
and attacked them with lead pipes and bladed weapons.
[10]

Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed Jeonito Araque from behind.
[11]
Jeonito
sustained three (3) stab wounds on the upper right portion of his back, another on the lower right portion and the third on the middle portion of the left
side of his back
[12]
causing him to fall down.
[13]
Marlon Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and
momentarily lost consciousness.
[14]
When he regained his senses three (3) minutes later, he saw that Jeonito was already dead.
[15]
Their assailants then
fled after the incident.
[16]
Marlon Araque who sustained injuries in the arm and back,
[17]
was thereafter brought to a hospital for treatment.
[18]

Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-PGH,
[19]
who thereafter issued a Medical
Certificate
[20]
indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in length located in the center (mid-parietal
area) of the ear.
[21]
The second lacerated wound measuring 2 centimeters in length is located at the mid-frontal area commonly known as the
forehead.
[22]
A third lacerated wound measuring 1.5 centimeters long is located at the forearm
[23]
and a fourth which is a stab wound measuring 3
centimeters is located at the right shoulder at the collar.
[24]
Elaborating on the nature of Marlon Araques injuries, Dr. Manimtim explained in detail during
cross-examination that the two (2) wounds on the forearm and the shoulder were caused by a sharp object like a knife while the rest were caused by a
blunt instrument such as a lead pipe.
[25]

Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito Araque
[26]
and prepared an Autopsy Report
[27]
of
his findings. The report which contains a detailed description of the injuries inflicted on the victim shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or any similar instrument.
[28]
The
first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic
aorta.
[29]
Considering the involvement of a vital organ and a major blood vessel, the wound was considered fatal.
[30]
The second wound, measuring 2.4
centimeters, affected the skin and underlying soft tissues and did not penetrate the body cavity.
[31]
The third wound measuring 2.7 centimeters was like
the second and involved only the soft tissues.
[32]
Unlike the first, the second and third wounds were non-fatal.
[33]
Dr. Munoz averred that of the three, the
first and second wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were standing behind the victim.
[34]

On the other hand, accused-appellants version of the incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by
selling vegetables.
[35]

2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At around 2:00 oclock Accused-appellant went to his house and slept.
[36]

3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke him up and told him there was a quarrel near the railroad track.
[37]

4. At around 6:00 oclock two (2) policemen passed by going to the house of Samson de la Torre while Accused-appellant was chatting with Edgar
Remolador and Andres Gininao. These two (2) policemen together with co-accused Samson de la Torre came back and invited Accused-appellant for
questioning at the Muntinlupa Police Headquarters together with Edgar Demolador and Andres Gininao. Subsequently, Edgar Demolador and Andres
Gininao were sent home.
[38]

5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the death of Jeonito
Araque and the frustrated murder of Marlon Araque. Accused-Appellant confronted Marlon Araque as to why he was being included in the case. Marlon
Araque answered because you eject[ed] us from your house.
[39]

Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated testimony failed to clearly and positively identify him as
the malefactor responsible for his brothers death. In fine, he insists that Marlons testimony is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single, trustworthy and credi ble witness could be
sufficient to convict an accused.
[40]
More explicitly, the well entrenched rule is that the testimony of a lone eyewitness, if found positive and credible by
the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered
spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be weighed not numbered; hence, it is not at all
uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness.
[41]

The trial court found Marlon Araques version of what transpired candid and straightforward. We defer to the lower courts findings on this point
consistent with the oft-repeated pronouncement that: the trial judge is the best and the most competent person who can weigh and evaluate the
testimony of witnesses. His firsthand look at the declarants demeanor, conduct and attitude at the trial places him in a peculiar position to discriminate
between the true and the false. Consequently appellate courts will not disturb the trial courts findings save only in cases where arbitrariness has set i n
and disregard for the facts important to the case have been overlooked.
[42]

The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was given in a categorical, convincing and
straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir Hinarang po kami.
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion of the left side
at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away.
[43]

Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon Araque an admission that he and the
deceased had a drinking spree with their attackers prior to the incident, proved futile as Marlon steadfastly maintained on cross examination that he and
his brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.
[44]

That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a natural knack for remembering the
faces of the attackers and they, more than anybody else, would be concerned with obtaining justice for the victim by the felons being brought to the face
of the law.
[45]
Indeed, family members who have witnessed the killing of a loved one usually strive to remember the faces of the assailants.
[46]
Marlons
credibility cannot be doubted in this case because as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of reliability the identity of the malefactors.
[47]

Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against accused-appellant. Being a victim
himself, he is expected to seek justice. It is settled that if the accused had nothing to do with the crime, it would be against the natural order of events to
falsely impute charges of wrongdoing upon him.
[48]
Accused-appellant likewise insists on the absence of conspiracy and treachery in the attack on the
victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots.
[49]
Conspiracy
may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint
purpose, concert of action and community of interest.
[50]
Indeed
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To
establish the existence of a conspiracy, direct proof is not essential since it may be shown by facts and circumstances from which may be logically
inferred the existence of a common design among the accused to commit the offense charged, or it may be deduced from the mode and manner
in which the offense was perpetrated.
[51]

More explicitly
conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts,
conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to establish a
conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be indicative of a common design to accomplish
a criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy can be established.
[52]

Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime itself.
[53]
In the
absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which the offense was perpetrated, or
inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of
interest.
[54]
Hence, it is necessary that a conspirator should have performed some overt acts as a direct or indirect contribution in the execution of the
crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself,or it may consist of moral
assistance to his con-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators.
[55]

Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the common
design and purpose.
[56]
Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.
[57]
From the legal
standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution.
[58]
In
this case, the presence of accused-appellant and his colleagues, all of them armed with deadly weapons at the locus criminis,indubitably shows their
criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path of the victims and as a group attacked
them with lead pipes and bladed weapons. Accused-appellant and his companions acted in concert during the assault on the victims. Each member of
the group performed specific and coordinated acts as to indicate beyond doubt a common criminal design or purpose.
[59]
Thus, even
assuming arguendo that the prosecution eyewitness may have been unclear as to who delivered the fatal blow on the victim, accused-appellant as a
conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in conspi racy, the act of one is the act
of all.
[60]

As to the qualifying circumstances here present, the treacherous manner in which accused-appellant and his group perpetrated the crime is shown
not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the deliberate manner in which the
assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed with bladed weapons and lead pipes, blocked
(hinarang) the path of the victims effectively cutting off their escape.
[61]
In the ensuing attack, the deceased was stabbed three (3) times from behind by a
sharp, pointed and single-bladed instrument like a kitchen knife, balisong or similar instrument
[62]
while Marlon Araque sustained lacerated wounds in the
head caused by blows inflicted by lead pipes as well as stab wounds on the shoulder and forearm which were caused by a sharp object like a knife.
[63]

It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased were clearly meant to kill without posing
any danger to the malefactors considering their locations and the fact that they were caused by knife thrusts starting below going upward by assailants
who were standing behind the victim.
[64]
Treachery is present when the offender commits any of the crimes against persons employing means, methods
or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the
offended party might make.
[65]
That circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his companions
were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes, purposely used force out of
proportion to the means of defense available to the persons attacked. However, this aggravating circumstance is already absorbed in
treachery.
[66]
Furthermore, although alleged in the information, evident premeditation was not proved by the prosecution. In the light of the finding of
conspiracy, evident premeditation need not be further appreciated, absent concrete proof as to how and when the plan to kill was hatched or what time
had elapsed before it was carried out.
[67]

In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-appellant proffers the defense of alibi. At the risk
of sounding trite, it must be remembered that alibi is generally considered with suspicion and always received with caution because it can be easil y
fabricated.
[68]
For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was present at another place at the time of the
perpetration of the offense; and b.] it would thus be physically impossible for him to have been at the scene of the crime.
[69]

Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the accused as one of the perpetrators of the
crime by the prosecution eyewitness, absent any showing of ill-motive, must prevail over the weak and obviously fabricated alibi of accused-
appellant.
[70]
Furthermore, as aptly pointed out by the trial court [t]he place where the accused was at the time of the killing is only 100 meters
away. The distance of his house to the place of the incident makes him physically possible to be a participant in the killing [of Jeonito] and [the]
wounding of Marlon.
[71]

All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accused-appellant is guilty as charged for Murder in
Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial court convicted accused-appellant of
Attempted Homicide only on the basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds inflicted which determines whether a felony is
attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed. By subjective phase is meant [t]hat
portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender
which, with the prior acts, should result in the consummated crime. From that time forward, the phase is objective. It may also be said to be that period
occupied by the acts of the offender over which he has control that period between the point where he begins and the point where he voluntarily
desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has
not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.
[72]

It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of execution which would produce the felony;
2.] the felony is not produced due to causes independent of the perpetrators will.
[73]
On the other hand, in an attempted felony: 1.] the offender commits
overt acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution which should produce the felony; and 3.] his
failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance.
[74]
The distinction between an
attempted and frustrated felony was lucidly differentiated thus in the leading case of U.S. v. Eduave:
[75]

A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the
acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all the acts which should result in
the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the
commission of crime and the moment when all the acts have been performed which should result in the consummated crime; while in the former there is
such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that
point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted the
offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries should be punished as attempted or
frustrated murder, homicide, parricide or consummated physical injuries.
[76]
Homicidal intent must be evidenced by acts which at the time of their
execution are unmistakably calculated to produce the death of the victim by adequate means.
[77]
Suffice it to state that the intent to kill of the malefactors
herein who were armed with bladed weapons and lead pipes can hardly be doubted given the prevailing facts of the case. It also can not be denied that
the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost
consciousness and fell, Marlons attackers apparently thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open for review
[78]
and the reviewing tribunal can correct errors, though unassigned in the
appealed judgement
[79]
or even reverse the trial courts decision on the basis of grounds other than those that the parties raised as errors.
[80]
With the
foregoing in mind, we now address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case, may impose upon the person guilty of the
frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should
be imposed under the provisions of article 50.
[81]

The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under article 51 should be imposed for an attempt to
commit any of such crimes.
The penalty for Homicide is reclusion temporal
[82]
thus, the penalty one degree lower would be prision mayor.
[83]
With the presence of the
aggravating circumstance of abuse of superior strength and no mitigating circumstances, the penalty is to be imposed in its maximum period.
[84]
Prision
mayor in its maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying further the Indeterminate Sentence Law,
[85]
the
minimum of the imposable penalty shall be within the range of the penalty next lower in degree, i.e. prision correccional in its maximum period which has
a range of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial court with regard to the civil aspect of the case for the death of
Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses or those which appear to have been
genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts.
[86]
In this case, the expenses incurred for
the wake, funeral and burial of the deceased are substantiated by receipts.
[87]
The trial courts award for actual damages for the death of Jeonito Araque
should therefore be affirmed.
In line with current jurisprudence,
[88]
the award of P50,000.00 as civil indemnity ex delicto must also be sustained as it requires no proof other than
the fact of death of the victim and the assailants responsibility therefor.
[89]
The award for moral damages for the pain and sorrow suffered by the victims
family in connection with his untimely death must likewise be affirmed. The award is adequate, reasonable and with sufficient basis taking into
consideration the anguish and suffering of the deceaseds family particularly his mother who relied solely upon him for support.
[90]
The award of
exemplary damages should likewise be affirmed considering that an aggravating circumstance attended the commission of the crime.
[91]

The trial court, however, correctly ignored the claim for loss of income or earning capacity of the deceased for lack of fact ual basis. The estimate
given by the deceaseds sister on his alleged income as a pre-cast businessman is not supported by competent evidence like income tax returns or
receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of damages
[92]
and as such requires due proof
thereof.
[93]
In short, there must be unbiased proof of the deceaseds average income.
[94]
In this case, the victims sister merely gave an oral, self-serving
and hence unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same is supported by documentary
evidence.
[95]
With regard to moral and exemplary damages, the same being distinct from each other require separate determination.
[96]
The award for
moral damages must be struck down as the victim himself did not testify as to the moral suffering he sustained as a result of the assault on his
person. For lack of competent proof such an award is improper.
[97]
The award for exemplary damages must, however, be retained considering that
under Article 2230 of the Civil Code, such damages may be imposed when the crime is committed with one or more aggravating circumstances.
[98]

Finally, this Court has observed that the trial court did not render judgment against accused Samson dela Torre, notwithstanding that he was
arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in absentia and, considering the
evidence presented by the prosecution against him, convicted of the crime charged together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is sentenced to
suffer an indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision
Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render judgment based
on the evidence against Samson dela Torre y Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.































Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
GARCIA, J .:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision
1
of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution
2
denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.
3

The accusatory portion of the information
4
dated December 17, 1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the above-
named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and
there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her
but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."
5
Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and her
classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room
307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on
a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not
move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet
with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got
free. With this the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may
pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attackers clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid,
p. 17). He was wearing a t-shirt and shorts Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July 5, 1993, pp. 13-14). Aside from the window
with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going through
the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5,
1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior to the attack. CHITO confided his
feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991, wearing a
white t-shirt with a marking on the front of the T-shirt T M and a Greek letter (sic) and below the quoted letters the word 1946 UST Medicine
and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and requested permission to go
up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa
was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] . S/G
Ferolin made the following entry in the security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter
(sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the time CHITOs knocking on the door woke him up, .
He was able to fix the time of CHITOs arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock
at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. . It was at around 3 oclock in the
morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open window through which the intruder supposedly
passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He mentioned to the latter that something
had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO and Joseph to go with them to Camp Crame where
the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went
inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they
did not know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO
(Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black
Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITOs because CHITO
had lent the very same one to him . The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw
CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato saw
it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 oclock that afternoon along with
some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9
oclock in Camp Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written
request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."
6
(Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or making at any time
amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:
In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma
Phi Fraternity . MALOU, , was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their
Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No.
3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4) presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, , offered each dry
clothes to change into and CHITO put on the white t-shirt with the Fraternitys symbol and a pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants with stripe, socks and
shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked at his own watch
and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to open the door
until Rommel Montes, approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to
open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school uniform when, around 6:30 A.M, Joseph came to
the room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU and tried to rape
her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and Joseph, were brought to
Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed CHITO
to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame Hospital
.. At the hospital, CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345),
inside Room 310 at more/less 6:30 to 7 oclock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he
and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the
contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of
December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned
to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 oclock
in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his
gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants was alluded to be
among the items inside his gray bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr. Durans place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted after the party.
7
Rommel Montes, a tenant of Room 310 of the said building, also testified seeing
CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white
barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her fathers
house.
8
Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.
9

On December 14, 1994, the trial court rendered its decision
10
convicting petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond
reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of
P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial courts judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in
toto. Costs against appellant.
SO ORDERED.
11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.
12

Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove
the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he should
be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner
guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioners acquittal,
but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the
bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime.
There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually
witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when,
for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This
is the second type of positive identification, which forms part of circumstantial evidence.
13
In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded
places will be hard, if not well-nigh impossible, to prove.
14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over had
a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard
Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruders apparel to be something made
of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity
T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out,
laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and
MALOUs night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her
face where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth soaked in chemical while holding her body tightly under
the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that petitioners
actuation thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that the petitioner
intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if petitioners
intention was otherwise, he would not have lain on top of the victim.
15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the
following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when
the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of
rape by reason of some cause or accident other than his own spontaneous desistance.
16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,
17
stated that "the attempt
which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and
natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in
relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint
of the Penal Code.
18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to
the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by
the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.
19

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the
mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant
unconscious, if that was really his immediate intention, is anybodys guess. The CA maintained that if the petitioner had no intention to rape, he would
not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim
had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim
is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory
before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.
20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.
21

In Perez vs. Court of Appeals,
22
the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must
have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to
force his penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,
23
the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the extreme
our credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed
against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her
down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation
punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring
an accused of a crime the right to be informed of the nature and cause of the accusation,
24
it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his
defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust
vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include
any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person.
25
The
paramount question is whether the offenders act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.
26
That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that
she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from P5.00
to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE
and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of
light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the
costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
( On Leave )
ANGELINA SANDOVAL-GUTIERREZ
*

Associate Justice
RENATO C. CORONA
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.
REYNATO S .PUNO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
D E C I S I O N
TINGA, J .:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious acts
imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of
which he was convicted. The proposition rests on a common theory expounded in two well-known decisions
1
rendered decades ago by the Court of
Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has
never been affirmed by this Court.
As far as can be told,
2
the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in
People v. Adiao.
3
A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,
4
and in 1984, in Empelis v. IAC.
5
This petition now gives occasion for us to finally
and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information
6
charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a
supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the
open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit (RDU),"
hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.
7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting.
Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the
taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on
foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the
stolen merchandise recovered.
8
The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three
(3) additional cases of detergent, the goods with an aggregate value of P12,090.00.
9

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

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the
Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account,
accompanied by his neighbor, Leoncio Rosulada.
11
As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their detention.
12
Meanwhile, petitioner testified
during trial that he and his cousin, a Gregorio Valenzuela,
13
had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a
tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running,
at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00
p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent,
but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.
14
During petitioners cross-
examination, he admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at SM.
15

In a Decision
16
promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of
the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7)
years of prision mayor as maximum.
17
The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the
positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,
18
but only petitioner filed a brief
19
with the Court of Appeals, causing the appellate court to deem
Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.
20
However, in its
Decision dated 19 June 2003,
21
the Court of Appeals rejected this contention and affirmed petitioners conviction.
22
Hence the present Petition for
Review,
23
which expressly seeks that petitioners conviction "be modified to only of Frustrated Theft."
24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several
cases of detergent with a total value of P12,090.00 of which he was charged.
25
As such, there is no cause for the Court to consider a factual scenario
other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given
facts, the theft should be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites
26
two decisions rendered many years ago by the Court of Appeals: People
v. Dio
27
and People v. Flores.
28
Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated
theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have
attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law
annotations,
29
and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in
real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions,
including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a
supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not
hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne
some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to "frustrated theft," it is necessary to first refer to the basic
rules on the three stages of crimes under our Revised Penal Code.
30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.
31
After
that point has been breached, the subjective phase ends and the objective phase begins.
32
It has been held that if the offender never passes the
subjective phase of the offense, the crime is merely attempted.
33
On the other hand, the subjective phase is completely passed in case of frustrated
crimes, for in such instances, "[s]ubjectively the crime is complete."
34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender
fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the
specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining
whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under
the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have
been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been performed hinges on the particular statutory definition of the
felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel
the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a crime, that "ordinarily, evil intent must
unite with an unlawful act for there to be a crime," and accordingly, there can be no crime when the criminal mind is wanting.
35
Accepted in this
jurisdiction as material in crimes mala in se,
36
mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent,"
37
and
"essential for criminal liability."
38
It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is,
and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no mens rea requirement infringes on constitutionally
protected rights."
39
The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an actus reus.
40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship
of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and
legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the
acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making it clear that the
felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor
force upon things, shall take personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by
him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.
41
In the
present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal
property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.
42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical handling of property belonging to another against the will of the owner,"
43
a definition similar to that by
Paulus that a thief "handles (touches, moves) the property of another."
44
However, with the Institutes of Justinian, the idea had taken hold that more than
mere physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve."
45
This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and
Filipino penal laws, even as it has since been abandoned in Great Britain.
46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft. Justice Regalado notes that the concept
of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was
constitutive of apoderamiento, finding that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing."
47
However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively,
that there must be permanency in the taking
48
or an intent to permanently deprive the owner of the stolen property;
49
or that there was no need for
permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.
50
Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful taking.
51

So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied
to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure
motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without
the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the
answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft
as a consequence, "do not produce [such theft] by reason of causes independent of the will of the perpetrator." There are clearly two determinative
factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual
felonies in the Revised Penal Code
52
as to when a particular felony is "not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft "produced."
Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is
already "produced" upon the "tak[ing of] personal property of another without the latters consent."
U.S. v. Adiao
53
apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage
of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to "get the merchandise out of the Custom
House," and it appears that he "was under observation during the entire transaction."
54
Based apparently on those two circumstances, the trial court had
found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused
was guilty of consummated theft, finding that "all the elements of the completed crime of theft are present."
55
In support of its conclusion that the theft
was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman,
yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in
considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen
and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also
opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case;
just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby
produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)
56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment the thief had just extracted the money in a purse
which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in
each of those cases was consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v.
Sobrevilla,
57
where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the
victim when the latter, perceiving the theft, "caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman."
58
In rejecting the contention that only frustrated theft
was established, the Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded
in taking the pocket-book.
59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without
further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores
decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was
stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four
men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court
convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass through the checkpoint, perhaps in
the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further
investigation or checking."
60
This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less
momentary."
61
Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was
quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado
el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar
la cosa ajena.
62

Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must
first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had
been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.
63

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether
the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to
the division of the court that decided it, bore "no substantial variance between the circumstances [herein] and in [Dio]."
64
Such conclusion is borne out
by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to
the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the
"empty" sea van had actually contained other merchandise as well.
65
The accused was prosecuted for theft qualified by abuse of confidence, and found
himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft,
but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Dio and Flores then before it. The prosecution in Flores had
sought to distinguish that case from Dio, citing a "traditional ruling" which unfortunately was not identified in the decision itself. However, the Court of
Appeals pointed out that the said "traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its contents at
once."
66
Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still within the compound, the
petitioner could not have disposed of the goods at once." At the same time, the Court of Appeals conceded that "[t]his is entirely different from the case
where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,"
67
though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the
actor "to freely dispose of the articles stolen, even if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan
al sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves another
important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be
deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor
before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character
of the item stolen could lead to a different conclusion as to whether there could have been "free disposition," as in the case where the chattel involved
was of "much less bulk and more common x x x, [such] as money x x x."
68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or
less momentary. Or as stated in another case[
69
], theft is consummated upon the voluntary and malicious taking of property belonging to another which
is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once.
This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, "es preciso que se haga en circumstancias x x x
[
70
]"
71

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

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

In People v. Espiritu,
75
the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck
passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to
similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold
of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves
expected from the commission of the offense."
76

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the meaning of an element of a felony is controversial, there
is bound to arise different rulings as to the stage of execution of that felony."
77
Indeed, we can discern from this survey of jurisprudence that the state of
the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to
reckon with the import of this Courts 1984 decision in Empelis v. IAC.
78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying
some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The
accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After
trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed
that the theft was qualified, following Article 310 of the Revised Penal Code,
79
but further held that the accused were guilty only of frustrated qualified
theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What
does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have
produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.
80

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion.
There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of execution which should have produced the
felon as a consequence."
81
However, per Article 6 of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided
that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the
timely arrival of the owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned
with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation
of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it
required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to
our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis
were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also
by the fact that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning
behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as
provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad
de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los artculos 606, nm. 1.0; 607, nms,
1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code
would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined
as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado"
82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at
least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized
by Viada to answer the question whether frustrated or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa
ajena, vindose sorprendido, la arroja al suelo."
83
Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the
Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888
decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.
84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that
effect.
85
A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to
frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan
preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega
a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento
de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo
antes expuesto, son hurtos consumados.
86

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este
criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado
es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.
87
(Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumacin del hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all
the acts necessary for the completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as
proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for
such a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to
be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one
is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes
a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts
are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the
language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.
88
The courts cannot
arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to
the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation
of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids."
89

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

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters
consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of
intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft
produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts
of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such
acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was
frustrated."
91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of "taking" itself, in that there could be
no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the "taking not having been
accomplished." Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of
frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular
case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long
enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.
92
And long ago, we asserted in People v. Avila:
93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is
qualified by other conditions, such as that the taking must be effectedanimo lucrandi and without the consent of the owner; and it will be here noted that
the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a
distinction of no slight importance.
94

Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which is the deprivation of ones personal
property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the
offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only
be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the
effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen
property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft
would introduce a convenient defense for the accused which does not reflect any legislated intent,
95
since the Court would have carved a viable
means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time
of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the
number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon
fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility
or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even
after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the
acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances,
the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have
been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft.
The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in
Article 308 that expressly or impliedly allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has
been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying
on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on
theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these
years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It
will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the
higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.



















































Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169253 February 20, 2013
PACIFICO C. VELASCO, Petitioner,
vs.
THE HON. SANDIGANBAYAN (Fifth Division) and THE PEOPLE OF THE PHILIPPINES, Respondents.
D E C I S I O N
PEREZ, J .:
In this petition for certiorari under Rule 65 of the Rules of Court, petitioner alleges grave abuse of discretion on the part of the Fifth Division of the
Sandiganbayan for issuing the Resolution
1
dated 9 June 2005 denying his motion for reinvestigation and the subsequent Resolution
2
dated 15 August
2005, denying his motion for reconsideration in Criminal Case No. 28097.
The antecedents follow.
Philip Corpus Velasco, then Mayor of the Municipality of Bacarra in Ilocos Norte, filed an Affidavit-Complaint against his predecessor, petitioner Pacifico
C. Velasco, containing the following pertinent allegations:
1. On 21 September 1998, the Sangguniang Bayan of Bacarra passed Resolution No. 98-065 entitled "RESOLUTION GRANTING AUTHORITY TO
THE LOCAL CHIEF EXECUTIVE, HON. PACIFICO C. VELASCO TO PURCHASE ONE (1) UNIT ROAD GRADER-KOMATZU G-D 31 TO BE USED
BY THE MUNICIPALITY OF BACARRA FOR THE MAINTENANCE OF MUNICIPAL AND BARANGAY ROADS", the dispositive portion of which reads
as follows, to wit:
x x x
"HEREBY RESOLVED to grant authority to the Local Chief Executive, Hon. Pacifico C. Velasco to purchase one (1) unit of Road Grader-KOMATZU GD
31 to be used by the Municipality of Bacarra for the maintenance of municipal and barangay roads."
x x x
x x x x
2. Shortly thereafter, on 20 October 1998, a Disbursement Voucher was issued in favor of PACIFICO C. VELASCO for the amount of P670,000.00 "To
cash advance the amount of SIX HUNDRED SEVENTY THOUSAND PESOS (P670,000.00) for the purchase of one (1) Road Grader to be used by
municipality per L[BP] Check No. 106353 dated 10-13-98. x x x.
3. After the election of May 14, 2001, and after the turn-over, it was found out during the inventory of municipal properties that the Road Grader was
nowhere to be found. x x x.
4. In fact, a Joint Certification was issued by the Office of the Treasurer that there was NO ROAD GRADER-KOMATZU GD 30 (sic) OWNED BY THE
MUNICIPALITY OF BACARRA, x x x.
5. It was discovered later that sometime on 29 December 1998, PACIFICO C. VELASCO allegedly made a refund of the afore-stated amount to the
Municipal Treasurer x x x.
x x x x
8. Despite the alleged refund made by PACIFICO C. VELASCO, he hired the services of a certain Bernardo J. Bernardo (sic) as Heavy Equipment
Operator I, SG-4 on 16 August 2000, x x x.
9. Despite the alleged refund made by PACIFICO C. VELASCO, several Requests for Pre-Repair inspections, Job orders and corresponding
Disbursement Vouchers were made for "repairs, spare parts, etc. of a Komatzu GD 30, Road Grader, x x x.
x x x x
17. From the foregoing statement of facts, as supported by documentary evidences, I am accusing former mayor Pacifico C. Velasco now Provincial
Board Member of Ilocos Norte and the Municipal Treasurer of Bacarra, Ilocos Norte, Lorna S. Dumayag, for violation of the Anti-Graft Law and the
Revised Penal Code as amended for using public funds in the amount of Six Hundred Seventy Thousand Pesos (P670,000.00) in the purchase of a
Road Grader that [was] subsequently appropriated by former mayor Pacifico C. Velasco as his personal property.
3

In his Counter-Affidavit, petitioner branded the filing of the Complaint as politically motivated. He admitted requesting for a cash advance from the
municipality for the purpose of acquiring the road grader, which was subsequently utilized by the municipality to repair and maintain roads. When the
expected funds from the national government were not released, petitioner was faced with the problem of liquidating said cash advance. Thus, he was
forced to mortgage the road grader just so he could reimburse the municipality in the sum of P670,000.00. Petitioner justified the need for replacement
of spare parts and/or necessary repairs to be paid out of municipal funds because the municipal government was using the road grader from October
1998 up to the end of his term in June 2001. He also defended the appointment of Bernardo Bernardino (Bernardino), who was initially employed as a
casual employee and made permanent six (6) months later. According to petitioner, Bernardino was an all-around heavy equipment operator and was
not solely assigned as operator of the subject road grader.
4

On 11 December 2002, the Office of the Deputy Ombudsman for Luzon issued a Resolution dismissing the Complaint for lack of probable cause. Then
Acting Mayor Nicomedes C. Dela Cruz (Acting Mayor Dela Cruz) moved for reconsideration on 15 October 2003. A Motion to Strike Out the Motion for
Reconsideration was filed by petitioner for lack of locus standi.
5
In an Order dated 13 February 2004, the Office of the Deputy Ombudsman for Luzon
denied the motion for reconsideration.
However, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), Orlando Casimiro, pursuant to the authority
6
given by
Ombudsman Simeon Marcelo, directed the Office of Legal Affairs to review the case. On 8 July 2004, the Office of Legal Affairs recommended that
petitioner be indicted for technical malversation. The Office of Legal Affairs found that while the Sangguniang Bayan authorized the purchase of a road
grader, no sum was appropriated for its purchase. The source of the funding of the P670,000.00 cash advance came from the municipalitys funds for
personal services, which were originally appropriated for salaries of municipal employees.
7

Upon receipt of the Memorandum-Resolution, petitioner filed an Omnibus Motion (Motion for Reconsideration with Prayer to Hold in Abeyance the Filing
of Information) citing the failure of the 13 February 2004 Order to consider his Motion to Strike Out the Motion for Reconsideration filed by Acting Mayor
Dela Cruz. Petitioner also argued that not all elements constitutive of technical malversation were present.
On 16 February 2005, the Office of the Special Prosecutor issued a Memorandum denying the Omnibus Motion. A revised/modified Information was filed
with the Sandiganbayan charging petitioner of the crime of Illegal Use of Public Funds under Article 220 of the Revised Penal Code, committed, thus:
That on or about 20 October 1998 and sometime prior or subsequent thereto, in the Municipality of Bacarra, Ilocos Norte, Philippines, within the
jurisdiction of this Honorable Court, the accused PACIFICO C. VELASCO, a high-ranking public official, being then the Mayor of the aforesaid
municipality and as such is accountable for public funds received by or entrusted to him by reason of the duties of his office, while in the performance
and taking advantage of his official and administrative functions, did then and there wilfully, unlawfully and feloniously apply or misapply the amount of
SIX HUNDRED SEVENTY THOUSAND PESOS (P670,000.00), Philippine Currency, under his administration to a public use other than that for which
such fund was originally appropriated by law or ordinance, when the accused cash advanced the said amount of SIX HUNDRED SEVENTY
THOSUAND PESOS (P670,000.00) under Disbursement Voucher No. 101-98-10-037 which amount was appropriated or intended for the payment of
personal services for the municipal employees of the local government of Bacarra, particularly for their salaries, 13th month pay and other benefits, and
utilized the said amount to purchase one (1) unit road grader but was never recorded as property of the above-named Municipality, and thereafter,
accused mortgaged said road grader to private individuals without authority from the Sangguniang Bayan of Bacarra, Ilocos Norte, thereby resulting to
the damage and embarrassment to the public service as the public was made to believe that the road grader purchased by the accused was public
property for use of the municipal government and its constituent barangays.
8

On 18 March 2005, petitioner moved for a reinvestigation of the case before the Sandiganbayan. According to petitioner, the Office of the Special
Prosecutor, without conducting a preliminary investigation, indicted him not for the offense of which he was charged but for another offense, hence
violating his right to due process.
On 9 June 2005, the Sandiganbayan issued a Resolution denying the motion for reinvestigation for lack of merit. The Sandiganbayan found that
petitioner had already filed a motion for reconsideration assailing the 8 July 2004 Memorandum. The Sandiganbayan considered the filing of this motion
for reconsideration as compliance with the due process requirement. The Sandiganbayan added that since petitioner had already filed a motion for
reconsideration, he is no longer entitled to move for a second reconsideration pursuant to the Rules of Procedure of the Office of the Ombudsman which
prohibits the filing of such motion. The Sandiganbayan refuted petitioners claim that the offenses charged against him in the complaint are different from
the offense charged in the information. The Sandiganbayan countered that the complaint and the information are based on substantially the same
factual settings except that the respective designations are different.
On 15 August 2005, the Sandiganbayan issued a Resolution denying for lack of merit petitioner's motion for reconsideration.
Petitioner submits in support of his petition that:
THE RESPONDENT COURT ACTED WITHOUT JURISDICTION OR IN EXCESS THEREOF, OR AT THE VERY LEAST, GRAVELY ABUSED ITS
DISCRETION, IN NOT ORDERING THE REINVESTIGATION OF THE CASE OR, TO BE MORE PRECISE, A PRELIMINARY INVESTIGATION,
AFTER THE OFFICE OF THE SPECIAL PROSECUTOR FILED AN INFORMATION AGAINST THE HEREIN PETITIONER BASED ON A MOTION
FOR RECONSIDERATION FILED, NOT BY THE COMPLAINANT THEREIN, BUT BY ANOTHER PERSON WHO IS NOT A PARTY AND
THEREFORE, A STRANGER IN THE CASE, AND THEREAFTER, INSTEAD OF MERELY ACTING ONLY ON THE ISSUES AND GROUNDS RAISED
IN THE SAID MOTION, THE OFFICE OF THE SPECIAL PROSECUTOR, WITHOUT CONDUCTING A PRELIMINARY INVESTIGATION ON THE
PURPORTED OFFENSE OF WHICH THE HEREIN PETITIONER IS NOW INDICTED, ISSUED INSTEAD, THE MEMORANDUM DATED FEBRUARY
16, 2005, WHICH NOW INDICTS THE HEREIN PETITIONER NOT FOR THE OFFENSE OF WHICH HE IS CHARGED BUT FOR ANOTHER
OFFENSE, THEREBY BLATANTLY VIOLATING THE PETITIONERS SUBSTANTIAL RIGHT TO DUE PROCESS, RENDERING THE RESPONDENT
COURTS ASSAILED RESOLUTIONS AS NULL AND VOID.
9

Petitioner, in the main, assails the denial of his motion for reinvestigation on two (2) grounds: 1) he was denied the right to file a motion for
reconsideration of the 16 February 2005 Office of the Special Prosecutors Memorandum, recommending his indictment for Technical Malversation
under Article 220 of the Revised Penal Code, and 2) he was indicted for an offense that was not originally charged in the criminal complaint against
him.
10

We briefly review the material facts. A complaint for malversation and violation of the Anti-Graft and Corrupt Practices Act was filed by then Mayor Philip
Velasco against former Mayor Pacifico Velasco, now petitioner. The Office of the Deputy Ombudsman for Luzon dismissed the complaint for lack of
probable cause. Then Acting Mayor Dela Cruz moved for reconsideration. Petitioner filed a motion to strike out the pleading grounded on the lack of
legal personality of Acting Mayor Dela Cruz to file the motion. The Office of the Deputy Ombudsman for Luzon eventually denied the motion for
reconsideration. However, upon instructions of the Deputy Ombudsman for MOLEO, the Director of the Office of Chief Legal Counsel, after reviewing
the case, recommended the filing of an Information for Technical Malversation. Petitioner, thus, filed an Omnibus Motion for Reconsideration. The Office
of the Special Prosecutor denied petitioners motion and filed the Information for technical malversation before the Sandiganbayan.
Indeed, the recital of facts reveals that petitioner filed a motion for reconsideration, which he labelled as "Omnibus Motion (Motion for Reconsideration
with Prayer to Hold in Abeyance Filing of Information)" on 15 October 2003. A perusal of the Omnibus Motion shows that petitioner anchored his motion
for reconsideration on two (2) grounds first, the legal incapacity of the Vice-Mayor to file a motion for reconsideration of an earlier Order by the Office
of the Deputy Ombudsman for Luzon, dismissing the complaint against petitioner; and second, some elements of the crime of technical malversation
were lacking in the complaint.
Thus, it is incorrect for petitioner to insist that he was denied the right to file a motion for reconsideration of the Order of the Special Prosecutor. Records
prove that it was Special Prosecutor Dennis Villa-Ignacio who deputized the Deputy Ombudsman for MOLEO to act on the case with finality. Pursuant to
this authority, the Deputy Ombudsman for MOLEO approved the Memorandum-Resolution dated 8 July 2004 indicting petitioner. Thus, this
Memorandum-Resolution proceeds from the authority of the Special Prosecutor and is virtually his own memorandum. So when petitioner filed an
Omnibus Motion for Reconsideration, he was effectively appealing a Memorandum issued by the Office of the Special Prosecutor. The filing of another
motion for reconsideration constitutes a prohibited pleading. Under Section 7 of the Rules of Procedure of the Office of the Ombudsman, "Only one
motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, x x x."
In an apparent attempt to mislead, petitioner brings up the alleged incapacity of Acting Mayor Dela Cruz to file a motion for reconsideration pertaining to
the earlier 13 February 2004 Resolution which dismissed the complaint against him. This argument cannot prosper. The issue has already been
resolved. In fact, the Office of the Ombudsman for Luzon dismissed the complaint against petitioner. The purported legal incapacity of Acting Mayor Dela
Cruz, therefore, bears no relevance to the indictment on hand. At any rate, Acting Mayor Dela Cruz, in fact, did possess the legal capacity to file the
motion on behalf of the local government unit he represented. Under Section 46 of the Local Government Code, the vice-mayor automatically assumes
the powers and duties of the mayor in case of the latters temporary absence, thus:
SEC. 46. Temporary Vacancy in the Office of the Local Chief Executive. - (a) When the governor, city or municipal Mayor, or punong barangay is
temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension
from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the
powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which
can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.
In fact, Acting Mayor Dela Cruz explained that at that time he filed the motion, Mayor Philip Velasco was "on official vacation leave and out of the
country."
11
It is likewise incontrovertible that Mayor Philip Velasco instituted the complaint in his capacity as then Mayor of Bacarra, Ilocos Norte.
Petitioner premises his challenge on legal standing on the mere failure of the complainant to state in his complaint that he was suing on behalf of the
municipality. His argument is specious. As correctly asserted by Mayor Philip Velasco in his Comment/Opposition to the Motion to Strike, the property
sought to be recovered in the complaint will revert to the municipality and not to him.
12

We likewise find no merit in petitioner's contention that he was deprived of due process because while the accusation in the information was for technical
malversation, the crime charged in the complaint was for malversation and violation of the Anti-Graft and Corrupt Practices Act.
The Court had the occasion to rule on this issue in Pilapil v. Sandiganbayan.
13
Petitioner therein was accused of malversation under Article 217 of the
Revised Penal Code before the Ombudsman for failing to deliver the ambulance that he had received on behalf of the municipality. The complaint for
malversation was initially dismissed for lack of probable cause, but petitioner was later on charged for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act. Petitioner decried lack of due process because there was no preliminary investigation conducted on the offense of which he was
being charged in the Information. The Court held otherwise, thus:
Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may
be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. The preliminary designation of the offense in the
directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive. Such designation is only a conclusion of law of Deputy Ombudsman
Domingo. The Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence presented in the course of a
preliminary investigation and on the basis of which, he may formulate and designate the offense and direct the filing of the corresponding information. In
fact, even the designation of the offense by the prosecutor in the information itself has been held inconclusive, to wit:
[t]he real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law
alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information . . . it is not the technical
name given by the Fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the
Information.
14

What matters is compliance with due process during the preliminary investigation. That was accorded to petitioner. Due process is satisfied when the
parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action
or ruling complained of.
15
As aptly pointed out by the Court of Appeals, "Mr. Velasco was properly informed of the acts for which he was being
investigated and later charged. He participated actively in the preliminary investigation and in fact, was given ample opportunity to buttress the
allegations against him when he filed his counter-affidavit and submitted evidence on his behalf."
16
Upon issuance of the Memorandum
indicting petitioner, petitioner even filed the corresponding motion for reconsideration.1wphi1 Thus, petitioner was given all avenues to present his side
and refute all allegations against him. He was accorded, and he availed of, due process.
After the preliminary investigation compliant with due process, the Ombudsman, guided by the evidence presented during the preliminary investigation
formulates and designates the offense. The Ombudsman did so in this case. The formulation of the offense depends on the evidence presented, not on
the conclusionary designation in the complaint.
In all, we see no grave abuse of discretion on the part of the Sandiganbayan in denying the motion for reinvestigation.
WHEREFORE, the instant petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.


































Republic of the Philippines
SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 142500 April 20, 2001
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DECOROSO ACA-AC y CESPON, accused-appellant.
MENDOZA, J .:
This is an appeal from the decision,
1
dated February 19, 1994, of the Regional Trial Court, Branch 4, City of Tagbilaran, finding accused-appellant
Decoroso Aca-ac y Cespon, alias "Kokong," guilty of frustrated rape and sentencing him to suffer the indeterminate penalty of imprisonment from twelve
(12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as maximum, with accessory
penalties, and to indemnity the complainant Fritzie Aca-ac the amount of P30,000.00 as moral damages and P20,000.00 as exemplary damages.
Originally taken to the Court of Appeals, the appeal was certified to this Court pursuant to rule 124, 13 of the Revised Rules on Criminal Procedure in
view of the appeals court's ruling
2
that accused-appellant is guilty of consummated, not frustrated, rape and that the appropriate penalty to be imposed
on accused-appellant is reclusion perpetua.
The facts are as follows:
On the basis of criminal complaints
3
of the minor Fritzie Aca-ac, four informations
4
for rape were filed against accused-appellant in the Regional Trial
Court of Tagbilaran City.
In Criminal Case No. 7091, the information alleged:
That on or about the 22
nd
day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve
years of age, to the former's house and to his bedroom and thereafter, with intent to have sexual intercourse, removed the victim's panty, let
her lie down while he lay on top her, inserted his penis into her labia minora near the clitoris of the vagina and succeeded in having carnal
knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended
party.
CONTRARY TO LAW.
In Criminal Case No. 7092, the information charged:
That on or about the 17
th
day of October, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age
to remove her shorts and panty and to lie down on the ground, and thereafter, the accused inserted his penis into her vagina near the clitoris
and vaginal opening and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old,
to the damage and prejudice of the said offended party.1wphi1.nt
CONTRARY TO LAW.
In Criminal Case No. 7093, the information alleged:
That on or about the 12
th
day of January, 1991 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age
to go to a bushy place near a nipa plantation, and, upon reaching the place, let her undress and lie down while he lay on top of her, and
thereafter, he inserted his penis inside her vaginal opening near her clitoris and succeeded in having carnal knowledge with the victim with her
vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party
CONTRARY TO LAW.
In Criminal Case No. 7094, the information asserted:
That on or about the 8
th
day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve
years of age, to an old uninhabited house, and thereafter, upon reaching the place, took off her shorts and her panty with intent to ace sexual
intercourse with her and then let her lie down after which the accused lay on top of her and inserted his penis into the labia minora near the
clitoris of the vagina of the victim and succeeded in having carnal knowledge with her vitiated consent since she is below twelve years old, to
the damage and prejudice of the aid offended party.
CONTRARY TO LAW.
Accused-appellant having pleaded not guilty to the charges, the joint trial of the cases was set. Five witnesses were presented by the prosecution in
support of its case, namely, complainant Fritzie Aca-ac, her mother, Felipa Aca-ac, her classmate, Algerico Lonio, the physician, Dr. Stella Maris J.
Amora, and rebuttal witness Esteban Dagandan.
In Criminal Case No. 7094, complainant testified that on September 8, 1990, she was asked by her mother Felipa Aca-ac to buy cooked fish (inon-
onan) for dinner from a store in Barangay Villalimpia, Loay, Bohol. On her way home, she met accused-appellant, who held her by the hand and forced
her to go with him to the vacant house of one Pinay Aguirre. Once inside, accused-appellant removed complainant's shorts and panty and made her lie
down on the floor, which was covered with coconut leaves. Complainant claimed that accused-appellant fondled her breasts and licked her private parts.
He then went on top of her and made "push and pull movements." When he was through, complainant said, accused-appellant withdrew his penis and
white fluid came out. Complainant said she then wiped her private parts and put on her cloths. She said she did not tell anyone what happened to her.
5

Algerico Lonio, a resident of Barangay Villalimpia, Loay, Bohol and a classmate of complainant testified that at about 7:00 p.m. of September 8, 1990, he
was at the house of one Emmie Blasco when he saw accused-appellant and complainant going inside the house of Pinay Aguirre, which was known in
the neighborhood to be haunted. Out of curiosity, he said, he followed the two and peeped through the fence at the back. He saw accused-appellant
undress complainant, go on top of her, and make "push and pull movements." Lonio said he knew that the two were having sexual intercourse, which
lasted for about three minutes. He claimed he did not tell anyone what he saw for fear of his life. But, Lonio said, on February 27, 1991, he and
complainant had a quarrel in school during which he asked complainant about the rape. According to Lonio, complainant admitted that accused-
appellant had raped her and then left crying. Lonoi later narrated the incident to complainant's mother.
6

In Criminal Case No, 7091, complainant testified that at about 4:00 p.m. of September 22, 1990, after gathering some guavas in Barangay Villalimpia,
Loay, Bohol, she passed by the house of accused-appellant on her way home. When accused-appellant saw her, he tried to lure her on the pretext that
he had some papayas for her. Complainant got inside the house, but sensing that there was no papaya in the house, she immediately tried to leave.
Accused-appellant, however, closed the door and brought her to his bedroom where he raped her. Accused-appellant threatened her with harm if she
told anyone about the incident.
7

In Criminal Case No. 7092, complainant testified that at about 4:30 p.m. of October 17, 1990, as she was gathering firewood in Barangay Villalimpia,
Loay, Bohol, accused-appellant came and forced her to remove her shorts and panty. She was made to lie down on the ground covered with nipa leaves
and was then raped by accused-appellant. Complainant went home after the incident, bringing with her the firewood she had gathered.
8

In Criminal Case No. 7093, complainant testified that at about 1:00 p.m. of January 12, 1991, as she was on her way home from the house of a certain
Betty, she saw accused-appellant near the house of one Ned Reyes in Villalimpia, Loay, Bohol. Accused-appellant seized her and dragged her to a bush
near the plantation and made her undress and lie down. Then he allegedly forced her to have sexual intercourse with him.
9

Complainant's mother, Felipa Aca-ac, testified that accused-appellant is the cousin of her father-in-law, Faustino Aca-ac. She said that in the afternoon
of February 27, 1991, she learned from Lonio that her daughter had been raped by accused-appellant. She said that when she confronted her daughter,
the latter admitted that accused-appellant had raped her four times. According to her, the next day, February 28, 1991, she took Fritzie to Dr. Stella
Maris J. Amora of the Governor Celestino Gallares Memorial Hospital for medical examination. Felipa said that accused-appellant offered to pay
P12,000.00 as settlement of the case.
10

Dr. Amora testified that there was no laceration in the hymen of complainant. She said, however, that it was possible that there could be a penetration of
a male organ up to the labia minora and the hymen would still be intact.
11

The defense presented six witnesses, namely, accused-appellant Decoroso Aca-ac, Faustino Aca-ac, Felix Adorable, Rosalio Pamayloan, Petronia Aca-
ac, and Alberto Cempron.
Accused-appellant Decoroso Aca-ac y Cespon, 57 years old at the time of the alleged rape incidents, denied the charges and claimed that Felipa Aca-ac
had instigated complainant to file the charges because he told Felipa's husband that Felipa was having an affair with another man. He said the charges
because he told Felipa's husband that Felipa was having an affair with another man. He said the charges were trumped up by Felipa because she
wanted to extort P30,000.00 from him. He also stated that he had a quarrel with Felipa's husband, Roberto, because the latter had stolen his chicken.
Accused-appellant said he reported the matter to Barangay Captain Felix Adorable. He stated that Faustino Aca-ac tried to get the parties to settle the
case, but he failed in his efforts. Accused-appellant alleged that at 57, he was already old and that he could no longer have an erection.
12

Faustino Aca-ac, grandfather of complainant and a cousin of accused-appellant, testified that he did not believe accused-appellant committed the crime.
He said accused-appellant and complainant's parents had a misunderstanding which he tried to settle insuccessfully.
13

Felix Adorable, a former barangay captain of Villalimpia, Loay Bohol and an incumbent barangay kagawad, confirmed accused-appellant's claim that he
had filed a complaint against Roberto Aca-ac, complainant's father, with the Katarungang Pambarangay.
14

Rosalio Pamayloan was a neighbor of accused-appellant and a resident of Villalimpia, Loay, Bohol for 12 years. He testified that he had been a principal
in a public school since 1983. He personally knew accused-appellant and vouched for the character of accused-appellant as a good man.
15

Petronia P. Aca-ac, wife of accused-appellant, testified that she and her husband had been married for 36 years and had six children, two of whom had
died. On the four occasions on which it was alleged accused- appellant had raped complainant, Petronia said her husband was in their house helping
her make "nipa shingles."
16

On rebuttal, the prosecution presented Esteban Dagandan, who testified that complainant's mother, Felipa, worked as a nurse of his (Dagandan's) wife,
because the latter had suffered a stroke. Dagandan disputed accused-appellant's claim that complainant and her mother had demanded P30,000.00 for
the settlement of the case. He said that sometime in May 1992, Albert "Berting" Cempron, a nephew of accused- appellant, accompanied by his wife
Lydia, thrice went to his (Dagandan's) house asking Felipa to withdraw the case against accused-appellant. Accused-appellant offered to pay Felipa
P12,000.00 as settlement of the case, but the same was rejected.
17

Felipa Aca-ac was recalled to the stand. She denied Rosalio Pamayloan's testimony that she proposed a settlement of the case for P30,000.00 and that
accused-appellant had no criminal record in their barangay. She said that she rejected Albert Cempron's P12,000.00 offer, made in behalf of accused-
appellant, for the settlement of the case.
18

Complainant Fritzie Aca-ac was also recalled to the stand. She rebutted the testimony of accused-appellant that he could no longer have an erection.
She said she saw accused-appellant insert his erect penis into her vulva.
19

On sur-rebuttal, Alberto A. Cempron, the barangay captain of Matin-aw, Carmen, Bohol, testified that he tried to bring the parties to an amicable
settlement of their case because they are relatives and his wife is a cousin of complainant's father. However, he said he was unsuccessful as accused-
appellant's wife was willing to pay only P12,000.00 but Felipa wanted P30,000.00.
20

On February 19, 1994, the trial court rendered a decision convicting accused-appellant of frustrated rape in Criminal Case No. 7094 and
acquitting him of the charges in the rest of the cases. The dispositive portion of its decision reads:
WHEREFORE, under Criminal Case No. 7094, the Court finds accused Decoroso Aca-ac y Cespon guilty beyond reasonable doubt of the
crime of frustrated rape and he is hereby sentenced to undergo an indeterminate penalty of imprisonment ranging from twelve (12) years
of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, with all its
accessory penalties, to indemnify the offended party Fritzie Aca-ac the sum of P30,000.00 as moral damages and another amount of
P20,000.00 in the concept of exemplary damages.
As regards the three other above-entitled cases, Criminal Case Nos. 7091, 7092, & 7093, all for rape, accused Decoroso Aca-ac y Cespon,
alias Kokong, is hereby acquitted on the ground of reasonable doubt.
SO ORDERED.21
On appeal, the Court of Appeals held that accused-appellant was guilty of consummated rape and accordingly sentenced him to reclusion perpetua.
Hence, this appeal.
First. In holding that the crime committed was frustrated rape, the trial court relied on the findings of Dr. Amora which showed that complainant did not
have any lacerations in her hymen which in fact was intact. The trial court pointed out that there was no evidence of penetration into the vagina of
complainant.
This is error. As this Court explained in People v. Orita,
22
rape is either attempted or consummated. There can be no frustrated rape. While the
penultimate paragraph of Art. 335 of the Revised Penal Code
23
prescribes death for attempted or frustrated rape, and a homicide committed by reason
or on the occasion thereof, the provision on frustrated rape is a "dead provision." This Court said in Orita:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony is consummated. In along line of cases (people v. Oscar, 48 Phil.
527 (1925); People v. Hernandez, 49 Phil. 980 (1925); People v. Royeras, 56 SCRA 666 (1974); People v. Amores, 58 SCRA 505 (1974)), we
have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the
male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 (1935);
People v. Rabadan and Olaybar, 53 Phil. 694 (1927); United States v. Garcia, 9 Phil. 434 (1907)) because not all acts of execution were
performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements, and
manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.
24

As the Court of Appeals noted, accused-appellant should be convicted of rape in its consummated stage and not merely for frustrated rape, since the
entry of the male organ into the labia of the female organ alone is sufficient to constitute consummated rape.
For that matter, the mere touching of the labia or pudendum by the male organ is enough to consummate the crime of rape.
25
It is enough that there is a
penetration, however slight, of the external genitalia.
26
Consequently, the fact that there was no laceration of complainant's private parts or that her
hymen was intact, as testified to by Dr. Amora,
27
does not preclude a finding of rape against accused-appellant. It bears emphasis that a broken hymen
or laceration of any part of the female genital is not a pre-requisite for a conviction for rape.28
Accused-appellant's claim that it was impossible for him, then 57 years old, to commit the crime of rape because he could no longer have
an erection is self-serving. Age is not the criterion in determining sexual interest and potency.
The birth certificate (Exh. C) of complainant shows that she was born on April 9, 1979. Since complainant was then about 11 years old when she was
raped by accused-appellant on September 8, 1990, the crime is statutory rape under Art. 335, paragraph 3 of the Revised Penal Code.
Second. Accused-appellant contends that the way complainant narrated the lurid details of how she was allegedly raped is not the way an innocent child
below 12 years of age testifies, but the way a woman, who is worldly and experienced in sex, will testify. Accused-appellant questions complainant's
narration as he likens them to stories contained in pornographic magazines and movies.
The contention has no merit. Where an alleged rape victim says she was sexually abused, she says almost all that is necessary to show that rape had
been inflicted on her person, provided her testimony meets the test of credibility.
29
For no woman would allow an examination of her private parts or go
through the humiliation of a trial unless she has actually been so brutalized that she desires justice for her suffering.
30

In this case, accused-appellant has not shown any reason for complainant's testimony not to be given credence. At the time she was raped, complainant
was an 11 year-old Grade 5 student of Loay Central School in Loay, Bohol. After she was deflowered by accused-appellant, she was forced to silence
by threats on her life. It was only on March 1, 1991 when she executed a sworn statement
31
before the police authorities narrating therein how she had
been raped four times by accused-appellant. She told her story in open court. Complainant testified how she was raped on September 8, 1991, thus:
ATTY. ALEXANDER H. LIM:
Q - Now, what happened after your short pants and panty were removed?
A - That was the time that I squatted, I have no more panty and short pants.
Q - .Now, when you said you were squatting, did it not occur to your mind to run away or shout?
A - No, I did not.
Q - And so what happened after that?
A - He pushed down my knees and caused me to lie down.
COURT:
Q - You mean the accused pushed down your knees and thereafter pushed your body causing you to lie down face up?
A - When he pushed down my knees, so I squatted at that time and he also pushed my shoulder that caused me to lie down on my back.
ATTY. ALEXANDER H. LIM:
Q - After that what happened next?
A - He kissed me on the lips.
Q - Now, when he did that to you, did you not resist?
A - I did not.
COURT (TO WITNESS)
Q - Why did you not like to be kissed by the accused at that time?
A - I tried to avoid his kiss but he held my hands.
ATTY. ALEXANDER H. LIM:
Q - Now, did you not bite him? When you did not like his kiss?
A - I did not.
Q - Still you did not offer any resistance to shout?
A - I resisted but he held my hands.
Q - Why did you tell the Court that you uttered something?
A - I told him.
Q - Meaning your voice was not heard?
A - He told me not to shout.
Q - Why did you not shout the way that it could be heard by your neighbors?
A - Because he told me not to make any noise for he will kill me.
Q - Is that all?
A - Yes, sir.
Q - But he did not carry any weapon?
A - No, sir.
Q - Now, after that kiss on your lips, what happened next?
A - He sucked my nipples.
Q - Did you not push him when he sucked your nipples?
A - I held the back of his head.
Q - How did he suck your nipples?
FISCAL REINERIO S. NAMOCA TCA T:
Is there a particular way of sucking nipples?
ANSWER OF WITNESS:
He raised my t-shirt.
ATTY. ALEXANDER H. LIM:
Q - So, he raised your t-shirt in sucking your nipples?
A - Yes, sir
Q - Still in raising your t-shirt, you did not shout?
A - I told him don't, but he did not heed.
Q - Still in a low voice?
A - Yes, sir.
Q - You did not shout loudly?
A - I did not because he told me if I will make a noise or report the matter, he will kill me.
Q - You were afraid of him when you said he did not hold any weapon?
A - I was afraid he would box me.
COURT:
Any further questions?
ATTY. ALEXANDER H. LIM:
Q - Now, at that time according to you he sucked your nipples, you did not consider that you were already endangered?
A - I have not known of such danger.
Q - After that, what happened next?
A - He also sucked the other nipple.
Q - So, the two nipples were sucked?
A - Yes, sir.
Q - So, what happened after that?
A - He licked my vagina.
Q - When he licked your vagina, you did not shout or protest?
A - I told him don't, I tried to stand up but he pushed me and pressed my forehead.
Q - At that moment he was very busy licking your vagina, what else did he do?
A - He pressed my forehead.
Q - While he was licking your vagina, you pushed his head?
A - I pushed his forehead.
COURT:
Q - Did you succeed when you stand up after pushing the forehead of the accused?
A - Because of his strength, when I stood up, he held my hand and I was made to lie down again.
Q - While he was licking your vagina, where was the hand of the accused?
A - When I pushed the forehead, he was licking my vagina.
Q - So, what happened after that?
A - He mounted on me.
Q - Before that, while the accused was licking your vagina, were your legs apart?
A - Because my legs were apart, he licked my vagina.
Q - You made it voluntarily or the accused made it apart?
A - I was the one who spread my two legs.
ATTY. ALEXANDER H. LIM:
Q - In doing so, when you spread your legs, the accused used his two hands?
A - Yes, sir, he used his two hands.
Q - At the same time he was licking your vagina?
A - Yes, sir.
Q - And in that very moment you could stand up or you could squat or use your hand to fight back or to resist?
A - I tried to rise up and pushed his forehead.
Q - And you succeeded in rising up pushing his forehead?
A - After I pushed his forehead, he crawled and held my hands and let me lie down again.
Q - In that process, did you not shout?
A - I did not shout, I was afraid he might press me.
Q - But he did not press you?
A - But he told me if I will make noise, he will kill me.
Q - Now, after that what happened?
A - He mounted on me.
Q - His whole weight mounted on you?
A - Yes, sir, his whole body.
Q - And how did you feel?
A - I cannot push his head because he held my hands this was the time I could not move.
Q - So, he was holding your hands and you could cross your leg if you want to?
A - I cannot cross my legs because his two legs were over me.
COURT (TO WITNESS):
Q - You mean his body was over your spread legs while mounting from the licking until he mounted on you?
A - Yes, sir, his body was over my two legs.
COURT:
Any further questions?
ATTY. ALEXANDER H. LIM:
Q - Now, what happened after that?
A - He made a push and pull movement.
Q - What did you feel when he was doing that act of push and pull movement?
A - There was something hot that I felt on my vagina.
COURT:
Why did you feel something hot in your vagina?
A - It seems that there was something hot that went out from my vagina. It was a sticky fluid.
Q - .Where did the fluid come from?
A - May be it came out when he put his penis on my vagina.
Q - Did you feel the hot fluid coming from the penis of the accused and did you feel inside your vagina or from the labia of your vagina?
A - The penis was inside my vagina because he tried to make way to the large opening of my vagina so that his penis will enter.
Q - Did you feel the penis of the accused penetrating your vagina?
A - Yes, sir, it went inside.
COURT (TO WITNESS)
Q - What happened to your vagina, did it bleed when the penis of the accused entered your vagina?
A - The penis did not enter but just inside the opening of my vagina.
Q - You mean in the vulva of your vagina?
A - It was not inside the opening of the vagina but near the clitoris.
Q - So, you are now changing your testimony, you said earlier that the penis of the accused penetrated your vagina and now you are
changing your testimony by saying that the penis of the accused only touched the clitoris of your vagina?
FISCAL REINERIO S. NAMOCATCAT:
The witness is trying to say to enter the mouth of the vagina until the clitoris. This child is still very young to demonstrate the fact that the
penetration was made up to the labia minora of the victim.
32

Her consistent testimony despite intense and lengthy interrogation
33
belies accused-appellant's claim that she was telling a tale culled from pornographic
magazines or movies. Faced with complainant's testimony, accused-appellant could only offer the defense of denial. It is well-settled that denial cannot
prevail over the positive identification and categorical testimony of complainant. The rule is that between the positive declarations of the prosecution
witnesses and the negative statements of the accused, the former deserves more credence.
34
That is why accused-appellant had to summon to his aid
an alleged affidavit of desistance (Exh. 3) of complainant and her mother. But how could this bind complainant and her mother or prove anything when
the so-called affidavit is unsigned?
Third. Accused-appellant says complainant did not immediately report the incidents to the authorities nor tell the same to her mother. He claims that the
cases were filed merely to extort money from him.
These claims have no basis. The fact that complainant did not immediately report the matter to the authorities was fully explained by the prosecution.
Complainant was only 11 years old when the rape incidents took place. Young girls usually conceal for some time their defilement.
35
Moreover, accused-
appellant, being the cousin of her paternal grandfather, exercised moral ascendancy over complainant and even threatened her with death if she told
anyone what he had done to her.
Nor is there any probable reason for complainant to allow herself to be used as a pawn of her mother Felipa to extort money from accused-appellant.
Unless it can be shown that complainant was moved by ill will to falsely implicate accused-appellant, the inescapable conclusion is that her testimony is
worthy of full faith and credit.
36

Fourth. Accused-appellant doubts the veracity of Algerico Lonio's testimony that he had witnessed the rape of complainant on September 8, 1990.
Accused-appellant points out that Lonio failed to report the incident to complainant's parents or to the authorities despite the fact that there was no threat
to his life. Accused-appellant also points out certain improbabilities in the testimony of Lonio, to wit: that he peeped through the "back fence of the
house" and saw accused-appellant raping complainant; that despite the fact that the supposed incident happened between 7:00 to 8:00 p.m., no
mention was made of any form of illumination of the place; and that accused-appellant made "push and pull movements" when the medical findings
show that complainant's hymen was intact, thereby proving that there could not have been any penetration by accused-appellant's organ.
These arguments have no merit. On cross-examination, Lonio said that he knew what would happen to complainant when accused appellant took her to
the empty house of Pinay Aguirre because his (Lonio's) own younger sister and the sister of complainant had been abused by accused-appellant before.
He said he saw how accused-appellant violated complainant against her will.
37

Answering questions of the trial court, Lonio categorically said:
COURT: (TO WITNESS)
Q You said that you followed the two, accused and the complainant, after they entered the gate of the house of Pinay Aguirre. Did accused
Decoroso not close the gate after they gained entrance to the gate?
A Decoroso closed the gate.
Q Was it locked?
A He just closed it without locking.
Q How far is the gate to the house of Pinay Aguirre? To the main door of her house?
INTERPRETER:
Witness pointing to a distance indicating 3 to 4 meters.
COURT:
Q What door was used when they entered the house? The back door, or front door, or side door .
A Side door.
Q How do you know that they were using the side door when they entered the house?
A Because I saw them.
Q The two were seeing you when you entered the gate following them?
A They did not see me.
Q Did you enter the house of Pinay Aguirre using the side door taken by the two when they entered the same house?
A No.
Q Where were [you] posted then?
A Inside the fence because I climbed over the bamboo fence.
Q Fence around the house of Pinay Aguirre?
A It only connected the gate because there was a poultry .
Q So, you did not enter the house of Pinay Aguirre where the complainant and the accused had entered at 7 :00 o'clock in the evening of
September 8, 1990?
A I did not.
Q Why did you say that Fritzie Aca-ac was already lying down and her short was pulled and her blouse was raised above her breast?
A I peeped.
Q There was a hole or there was a window?
A From a hole of a fence which is a hogwire.
Q How far was that fence made of hogwire to the house of Pinay Aguirre where the complainant and the accused entered?
INTERPRETER:
Witness indicating a distance of 3 to 4 meters.
COURT:
Q So that that portion of the house where the two entered was not surrounded by any walling in such a way that they could be seen from
the wire?
A No wall.
Q How do you describe the house? Is it two storeys, or a building without walls?
A A two-storey house. Only the first storey has no wall because it was already destroyed by a storm.
Q Was the place lighted, considering that it was already 7:00 o'clock in the evening the incident allegedly happened?
A It was well lighted because the opposite house was well lighted.
Q And the light would reach the house of Pinay Aguirre?
A Yes.
Q When you saw the complainant with her shorts already pulled down, did I hear you correctly that the accused with the bended knees
made a push-and-pull movement of the body of the complainant?
A Yes.
Q Was his penis exposed?
A Yes, I saw.
Q You said that the accused licked the vagina of the complainant. Which happened first, the licking of the vagina or the push-and-pull
movement?
A The licking of the vagina happened first and after that, the accused made a push-and-pull movement.
Q Since you said that the penis of the accused was exposed, did we understand from you that the accused also pulled down his trousers,
as well as his underwear?
A Yes.
Q Did you see the penis of the accused penetrate into the vagina of the complainant?
A I did not see because Fritzie was under .
Q In that precise moment, how far were you to the two?
INTERPRETER:
Witness indicating a distance of 3 to 4 meters.
COURT:
Q Did you hear any utterances [from] either of the two regarding the push-and-pull movement made by the accused? Did you hear
anything from the accused while making a push-and-pull movement?
A None.
Q From complainant Fritzie, did you hear anything from her while the accused was making a push-and-pull movement over her?
A I did not hear any word from Fritzie.
Q You said earlier that the accused and the complainant had several intercourse. This is also testified to by you during the cross-
examination. Do you know that the two were having sexual intercourse?
A Because of the movement of Decoroso.
Q After the push-and-pull movement, what transpired next?
A No more.
The alleged inconsistencies in the testimony of Lonio as to the details of the September 8, 1990 rape incident are inconsequential. It was evident that
Lonio was telling the truth. He cried after narrating to the court how he told his mother about the incident. When the trial judge asked him why he cried,
Lonio said that he was hurt because the same thing happened to his younger sister.
39
He also said that he kept his silence in the beginning because he
feared for his life.
40
The testimony of Lonio contains details that dovetails on material points with the testimony of complainant.
Fifth. While increasing the imposable penalty to reclusion perpetua in view of its conclusion that accused-appellant was guilty of statutory rape, the Court
of Appeals affirmed the trial court's award of P30,000.00 for moral damages and P20,000.00 for exemplary damages in favor of the complainant.
This ruling must be modified. In accordance with current rulings of this Court, the award of moral damages should be increased to P50,000.00.
41
In
addition, complainant should be paid P50,000.00 as civil indemnity.
42
On the other hand, the award of P20,000.00 as exemplary damages should be
deleted for lack of basis.
WHEREFORE, the decision of the Court of Appeals finding accused-appellant Decoroso Aca-ac y Cespon guilty of statutory rape and sentencing him to
suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay complainant Fritzie Aca-ac
P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award of P20,000.00 as exemplary damages is hereby
deleted.1wphi1.nt
SO ORDERED.
Bellosillo, Mendoza, Buena, De Leon, Jr., JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 114261 February 10, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BERLY FABRO y AZUCENA, accused-appellant.
KAPUNAN, J .:
Appellant Berly Fabro y Azucena, together with her common-law husband Donald Pilay y Calag ad Irene Martin, was charged with the crime of "violation
of Section 21 (b) Art. IV, in relation to Section 4, Art. II of Republic Act No. 6425, as amended," under Criminal Case No. 11231-R of the Regional Trial
Court of Baguio City, in an information that reads:
That on or about the 7th day of April 1993, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously sell and/or
deliver to PO2 ELLONITO APDUHAN, who acted as poseur-buyer, one (1) kilo of dried marijuana leaves, a prohibited drug without any
authority of law, in violation of the aforementioned provision of law.
CONTRARY TO LAW.
1

Upon arraignment, appellant and Donald Pilay pleaded not guilty to the crime charged.
2
A co-accused, Irene Martin, remains at large.
The prosecution's case against herein appellant is as follows:
At around 5:00 o'clock in the afternoon of April 7, 1993 in Camp Henry Allen, Baguio City, two "concerned individuals," later identified as Gloria and
Emma Borce,
3
reported to Chief Inspector Allyn Evasco of the 14th Narcotics Regional Field Office, that a couple living together as husband and wife in
Quirino Hill, Baguio City, was engaged, in selling marijuana. They added that sales usually took place between 5:00 and 6:00 p.m.
4

Acting on that report, Chief Inspector Evasco organized two teams to conduct a buy-bust operation. The first team was composed of SPO1 Modesto
Carrera, SPO3 Delfin Salaria, SPO1 Galutan and one civilian agent while the second team had Senior Inspector Franklin Mabanag and three (3)
members of the 191st Mobile Force Company.
5
Mabanag was to be the overall team leader with Batag as his assistant.
6
SPO2 Ellonito Apduhan was
designated poseur-buyer in the operation. After briefing the group, Chief Inspector Evasco gave P600.00 as purchase money to Apduhan. The amount
consisted of six P100-bills with their serial numbers duly listed down.
7

With the civil informers in tow, the group proceeded to Quirino Hill on board three vehicles. They arrived at around 5:45 p.m.
8
All of disembarked from
the vehicles except for Mabanag who stayed in his car. Apduhan, Gloria and Emma took a stairway down to the house of Pilay and appellant below
street level. Batag stationed himself on the top portion of the stairway about twenty (20) meters from Pilay's house.
9
Carrera positioned himself at the
upper portion of the road about thirty (30) meters away from the same house.
10
The back-up team deployed within the immediate vicinity in such a way
that they could clearly see the transaction between the suspected pushers and the poseur-buyer.
As Apduhan, Gloria and Emma drew near Pilay's residence, appellant met them. Her common-law husband who appeared drunk was inside the house
by the main door.
11
Gloria and Emma introduced Apduhan to appellant as a stranger in the place who wanted to buy marijuana. Appellant told them that
a kilo would cost them P700.00 but she agreed to Apduhan's price of P600.00.
12
After Apduhan had ordered a kilo of the contraband, appellant told them
to wait a while.
13
Appellant then went to a house just behind her own.
14

After a few minutes, she returned in the company of another woman who was later identified as Irene Martin. Appellant was holding something that
looked like a brick wrapped in newspaper and placed inside a transparent plastic bag.
15
Appellant handed the stuff to Apduhan. Her companion, Irene
Martin, demanded payment therefor. Apduhan gave her the P600.00. Apduhan removed the wrapped of the merchandise. After ascertaining that it was
a brick of marijuana, he made the pre-arranged signal of lighting his cigarette.
16
Immediately, the back-up team rushed towards their direction. However,
before the team could reach them, Irene Martin ran away. Apduhan held appellant so that she could not escape.
17
Donald Pilay was also arrested. The
buy-bust team in pursuit of Irene Martin ended up in her house with barangay councilman Dominic Dicoy. Since her house was locked, the team forcibly
opened it. Inside, they found Irene's husband, Eusebio Martin. The team obtained his consent to search the house.
18
The search proved futile neither
Irene nor marijuana was found there.
19
Thereafter, the team brought the suspects and the confiscated marijuana to their office at Camp Allen.
The police prepared the booking sheet and arrest reports as regards Donald Pilay and appellant.
20
SPO1 Carrera, SPO2 Apduhan and SPO3 Batag
executed a joint affidavit of arrest.
21
The police requested the PNP Crime Laboratory Service to examine the confiscated item. To identify it, Apduhan,
Batag and Carrera affixed their signatures thereon.
22
Forensic Chemist Lalaine Ong Rodrigo confirmed that the seized item weighing one (1) kilo was
indeed positive for marijuana.
23
However, since she could not go to Baguio City to testify, another forensic chemist, Alma Margarita Villaseor conducted
another test on 995.5 grams of specimen and found it to be positive for marijuana.
24

The defense presented a different version of the incident leading to the arrest of appellant and her common-law husband. Appellant denied having sold
marijuana to Apduhan, claiming that Gloria and Emma were the ones carrying the pack of marijuana when the team approached her. According to
appellant, at around 6:00 p.m. of April 7, 1993, she was busy cooking in her house at Middle Quirino Hill, Baguio City. Her "husband" Donald was then
drinking liquor with their neighbors Eusebio Martin, George Matias and others.
25

While cooking, appellant noticed Gloria and Emma Borce pass by. They went straight to the house of her neighbor Irene Martin which was just behind
her own house.
26
After a while, Irene summoned appellant to her house where she was introduced to Gloria and Emma. The two asked appellant if she
could do home service for them as appellant was a beautician. They added that they needed a favor from appellant. However, they were not able to tell
appellant what favor it was because appellant excused herself to go back home and resume cooking. Moments later, Gloria and Emma followed
appellant to her house. They reiterated their need for appellant's services as a beautician provided that she would do them a favor. Appellant replied that
she could not attend to them. Hearing this, the two women left her. Appellant noticed that Gloria and Emma carried a regular-sized black shoulder bag.
27

Gloria and Emma returned three minutes later. Gloria was no longer carrying the shoulder bag. Instead, she was holding something wrapped in a
newspaper.
28
Appellant overheard Emma telling Gloria to hold the marijuana.
29
Armed men also accompanied the two women. Despite her objections,
appellant was immediately handcuffed by one of the armed men.
30
A commotion ensued in the midst of which Gloria and Emma disappeared. Appellant
was led to a waiting vehicle and was brought to the investigating division of the 14th NARCOM unit in Camp Allen, Baguio City.
Appellants' co-accused, Donald Pilay recounted that on April 7, 1993, he and one Pelayos were at the house of Dr. Pilando to get their wages as the
latter's workers. Subsequently, they engaged in a drinking spree somewhere in Hilltop near the vegetable section. In the afternoon of the same day, they
transferred to Doro's place. They resumed their drinking session at the house of Eusebio Martin in Quirino Hill. On his way home, someone poked a gun
at him and placed him in the trunk of a vehicle. He was brought to Camp Allen where he saw his wife, appellant herein, with barangay councilman
Dicoy.
31

Dominic Dicoy, the other witness for appellant, testified on how Donald Pilay wrestled with four NARCOM agents on April 7, 1993 prior to his arrest. He
corroborated the testimonies of the arresting officers regarding the search conducted on the residence of Irene Martin.
On January 4, 1994, the trial court rendered the Decision disposing of Criminal Case No. 11231-R as follows:
WHEREFORE, the Court Finds the accused Berly Fabro guilty beyond reasonable doubt of the offense of Violation of Section 4 Article II of
Republic Act No. 6425 as amended (Sale and/or Delivery of Marijuana) as charged in the body of the Information, not its caption, and hereby
sentences her to Life Imprisonment and to pay a Fine of Twenty Thousand Pesos (P20,000.00) without subsidiary imprisonment in case of
Insolvency and to pay the costs.
The marijuana confiscated from accused Berly Fabro (Exh. H) being the subject of the offense is hereby ordered confiscated and forfeited in
favor of the State and referred to the Dangerous Drugs Board for immediate destruction.
The accused Berly Fabro being a detention prisoner is entitled to be credited in the service of her sentence 4/5 of her preventive imprisonment
in accordance with Article 29 of the Revised Penal Code.
For failure of the prosecution to prove his guilt beyond reasonable doubt, the accused Donald Pilay isAcquitted of the offense charged in the
Information with costs de oficio.
Let an alias warrant of arrest be issued against co-accused Irene Martin to be implemented by any law enforcing agency in the country so that
upon her arrest she shall have a separate arraignment and trial of her own.
SO ORDERED.
32

In this appeal, appellant assails her conviction on the ground that her guilt has not been proven beyond reasonable doubt. She contends that the
following circumstances create a doubt as to her culpability for the crime charged: (1) Contrary to the allegation of the prosecution, the amount of the
confiscated marijuana "weighed only 99.5 grams and not one (1) kilo;" (2) The marked money allegedly used in the buy-bust operation was not
recovered and presented during the trial; and (3) Based on the testimony of the NBI, the real possessor of the confiscated properties was her co-
accused Irene Martin.
The grounds relied on by the appellant are clearly without merit.
Appellant posits that the amount of marijuana confiscated weighed only 99.5 grams.
Appellant relies on the testimony of Forensic Chemist Alma Margarita Villaseor where she referred to the confiscated marijuana as weighing 99.5
grams:
33

Q Could you remember madame witness if your predecessor Sr. Inspector Lalaine Ong conducted her own examination of this item?
A It states on the chemical report that she conducted the examination.
Q And how many grams of this item did she use of the examination (sic)?
A I did not see the representative sample.
Q But when you received the item, how much did it weight?
A 99.5.
Q So it must be lesser now?
A Yes, sir.
34

However, it should be noted that in her written report Villaseor indicated that the specimen had a "total of 999.5 grams of dried suspected marijuana
fruiting tops."
35

As between a writing or document made contemporaneously with a transaction in which are evidenced facts pertinent to an issue, when admitted as
proof of these facts, is ordinarily regarded as more reliable proof and of greater probative value than oral testimony of a witness as to such facts based
upon memory and recollection. The reason behind this is obvious, human memory is fallible and its force diminishes with the lapse of time.
36
Hence, as
between Villaseor's testimony and her written report, the latter is considered as the more accurate account as to the amount of marijuana examined.
Moreover, the initial Chemistry Report conducted by Forensic Chemist Lalaine Ong Rodrigo on April 8, 1993, a day after its confiscation, recorded that
the specimen submitted for laboratory examination was "one (1) kilo of suspected dried fruiting tops."
37

This Court is convinced that despite Villaseor's testimony that the marijuana weighed 99.5 grams, there is overwhelming documentary and testimonial
evidence, as correctly appreciated by the trial court, pointing to the fact that the contraband weighed one (1) kilo when it was seized.
The prosecution's failure to present the marked money used in buying marijuana from appellant did not cause a dent on the prosecution's case. Such
failure was on account of Irene Martin's flight after taking the money used in the sale. It must be stressed, however, that failure to present the marked
money is of no great consequence. The Dangerous Drugs Law punishes the mere act of delivery of prohibited drugs after the offer to buy by the
entrapping officer has been accepted by the prohibited drug seller.
38
Rather, of importance are the facts that the prohibited drug given or delivered by the
accused was presented before the court and that the accused was clearly identified as the offender by the prosecution eyewitness.
39
Stated differently,
the buy-bust money is not indispensable to the conviction of an accused provided that the prosecution has adequately proven the sale of the dangerous
drug.
40

Appellant's contention that Irene Martin was the real culprit being the source of the contraband does not in any way absolve her of the crime of selling
marijuana. While it is true that it was Irene Martin who took the money, appellant was the one who negotiated with the poseur-buyers; fetched her co-
accused; carried and handed over the marijuana to Apduhan. The acts of Martin and appellant clearly show a unity of purpose in the consummation of
the sale of marijuana. In other words, between Martin and appellant, conspiracy in the commission of the crime was indubitably proven by the
prosecution.
A final note. The information denotes the crime as a "VIOLATION OF SECTION 21 (b) ART. IV IN RELATION TO SECTION 4/ARTICLE II OF
REPUBLIC ACT 6425 AS AMENDED".
41
This is an erroneous designation of the crime committed. Section 21 of R.A. 6425 reads:
Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of the offense shall be imposed in case of any .
. . conspiracy to commit the same in the following cases:
x x x x x x x x x
b) Sale, administration, delivery, distribution and transportation of dangerous drugs.
It is clear that Section 21 (b) of R.A. 6425 punishes the mere conspiracy to commit the offense of selling, delivering, distributing and transporting of
dangerous drugs. Conspiracy herein refers to the mere agreement to commit the said acts and not the actual execution thereof. While the rule is that a
mere conspiracy to commit a crime without doing any overt act is not punishable, the exception is when such is specifically penalized by law, as in the
case of Section 21 of Republic Act 6425. Conspiracy as crime should be distinguished from conspiracy as a manner of incurring criminal liability the
latter being applicable to the case at bar.
In any event, such error in the information is not fatal. The body of the information states that the crime for which the petitioner is charged is as follows:
the above-named accused, conspiring, confederating and mutually aiding one another, did there willfully, unlawfully and feloniously sell and/or
deliver to PO2 Elonito Apduhan, who acted as poseur buyer, one (1) kilo of dried marijuana leaves. . .
It has been our consistent ruling that what is controlling are the actual recital of facts in the body of the information and not the caption or preamble of the
crime.
42

Having considered the assignments of error and finding no basis which, from any aspect of the case, would justify us in interfering with the findings of
the trial court, it results that the appealed decision must be AFFIRMED in toto.
SO ORDERED.1wphi1.nt
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.





































Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 139179 April 3, 2002
PEOPLE OF THE PHILIPPINES, appellee,
vs.
WILFREDO TOLENTINO Y ESPERAT and JONATHAN FABROS Y CASTRO, accused,
JONATHAN FABROS Y CASTRO, appellant.
PANGANIBAN, J .:
An appeal in a criminal case opens the entire records to review. The appellate court may pass upon every circumstance favorable to the accused. In the
present case, the prosecution failed to prove the existence of conspiracy beyond reasonable doubt. Neither was it able to show that appellant was an
accomplice or accessory. Hence, he must be acquitted on reasonable ground.
The Case
Jonathan Fabros y Castro appeals the May 27, 1999 Decision
1
of the Regional Trial Court (RTC) of Zamboanga City (Branch 17) in Criminal Case No.
13698, finding him guilty of murder and sentencing him to reclusion perpetua. The dispositive portion of the Decision reads as follows:
"WHEREFORE, finding the accused Wilfredo Tolentino and Jonathan Fabros guilty beyond reasonable doubt of the crime of murder, and
taking into consideration the aggravating circumstance of dwelling (morada) without any mitigating circumstance to offset the same, the Court
hereby sentences the above-named accused separately to suffer the penalty of [r]eclusion [p]erpetua, to pay separately the heirs of the victim
the sum of P50,000.00 as moral damages, the sum of P50,000.00 as exemplary damages, and to indemnify the said heirs [in] the sum of
P15,000.00 as actual damages, and to pay the costs."
2

The Information, dated March 2, 1996, charged appellant as follows:
"That on or about February 28, 1996, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a piece of wood and knife, conspiring and confederating together, mutually aiding and assisting with one another,
by means of treachery and evident premeditation and with intent to kill, did then and there without any warning, assault, attack and stab with
the use of said weapons that they were armed with, at the person of HERNAN SAGARIO y CUESTA, thereby inflicting mortal wounds on the
different parts of the latter's body which directly caused his death, to the damage and prejudice of the heirs of said victim.
"That the commission of the above-stated offense has been attended by the following aggravating circumstances, to wit:
1. Abuse of superior strength; and
2. Dwelling."
3

With the assistance of counsel,
4
appellant pleaded not guilty when arraigned on June 7, 1996.
5
After due trial, the RTC rendered the assailed Decision.
The Facts
Version of the Prosecution
The prosecution's version of the facts is summarized by the Office of the Solicitor General as follows:
6

"On February 28, 1996 around 7:30 in the evening, appellant and his cousins, Sheila Guilayan and Merwin Ledesma, were at their house in
Luyahan, Pasonanca, Zamboanga City when their neighbor Wilfredo Tolentino called them. When asked what was it all about, Wilfredo simply
motioned to them to come to his house located just across the road. Once they were inside the house, Wilfredo immediately revealed his plan
to kill Hernan Sagario, Sheila's stepfather. Wilfredo explained that it was the only way to free Sheila's mother - appellant's aunt - of the
sufferings being caused by Hernan. Wilfredo then instructed Merwin to go back to the house and get the bolo of Hernan. Merwin obliged, got
the bolo, and gave it to Wilfredo. Thereafter, they were told by Wilfredo to go home and wait for Hernan.1wphi1.nt
"Around 8:30 in the evening, Hernan arrived. He went directly to the kitchen and fixed the bag of rice he was carrying. Meanwhile, appellant,
together with Sheila and Merwin, just stayed quiet in the living room. Moments later, Wilfredo with a 2"x2" piece of wood in his hand entered
the house. He then followed Hernan towards the kitchen. When about an armslength away from Hernan, Wilfredo, without saying a word,
immediately walloped Hernan on the right side of the neck sending the latter unconscious and falling face down to the ground. Wilfredo
immediately instructed appellant and Merwin to help him bring Hernan out of the house. Lifting Hernan out of the house, Wilfredo held him by
the neck while both appellant and Merwin grasped his feet. They then carried Hernan towards the creek about seven meters away from the
house.
"Upon reaching the creekside, the three stopped and moved closer to the water. At this juncture, Wilfredo successively stabbed Hernan on
different parts of the body causing the latter's instant death. After throwing the victim's lifeless body in the creek, the three immediately left.
"The post-mortem examination on the victim's cadaver disclosed that the cause of his death was cardio-respiratory arrest due to shock and
hemorrhage secondary to [a] stab wound penetrating the chest." (Citations omitted)
Version of the Defense
Appellant, on the other hand, presented the following version of the facts:
7

"Accused Jonathan Fabros and Wilfredo Tolentino both denied killing the victim. Instead, they pointed to each other as the one who killed
Hernan Sagario. Fabros pointed to Tolentino as the assailant and the latter also fingered the former as the killer of Sagario.
"Relying on his lone testimony and corroborating the testimony of prosecution witness Sheila Guilayan, accused Fabros narrated that he is a
resident of Luyuhan, Pasonanca, particularly in the house of his auntie Amparo Guilayan (the common-law wife of Hernan Sagario), together
with his cousins Merwin Ledesma and Sheila Guilayan.
"On 28 February 1996, at around 7:00 p.m., he returned home to Luyahan after his work at Astoria Hotel as a waiter. Sheila was at home
when he arrived. Shortly thereafter, their neighbor, accused Tolentino, came over and called for Sheila. Sh[ei]la stood up and went to the
house of Tolentino, leaving behind Fabros and Merwin Ledesma. After a while, he and Ledesma heard Sheila crying and the two went to the
house of Tolentino. At the house of Tolentino, Fabros and Ledesma asked Sheila why she cried. [She] disclosed Tolentino's plan to kill her
stepfather Hernan Sagario. When asked for his motive to kill Hernan Sagario, Tolentino merely reasoned that he just wanted to help their
auntie Amparo get rid of her problems. When they expressed apprehension [about] being implicated and tried to prevent Tolentino from
pursuing his plan, the latter told them not to worry; for he will take care.
"When Tolentino saw their uncle Hernan coming towards the house, he ordered them to go home and they obeyed. As he arrived, Hernan
ordered Fabros to boil water. Afterwards, Hernan went out of the house to buy Ovaltine. When Hernan returned, Tolentino approached him
and they talked for about two minutes. Afterwards, Tolentino went to his house while their uncle Hernan told him (Fabros) to check if the water
was already boiling. Jonathan went to the kitchen while their uncle placed the rice he brought in a container. At that instance, Jonathan heard
the sound 'pok', and saw Tolentino holding a piece of wood (2" x 2"). Then, he saw his uncle f[a]ll down slowly, his chest hitting the corner
edge of a table. Tolentino approached his uncle and kicked him. Then he ordered Fabros to come near him and carry Hernan by his feet.
Afraid that Tolentino will hit him with the piece of wood, Fabros held his uncle by the feet while Tolentino pulled Hernan by the shirt and he just
followed Tolentino. Tolentino brought Hernan near the river. When Jonathan noticed that his uncle regained consciousness, he ran away
towards a banana plantation and from there he saw Tolentino [stab] Sagario on the chest. After stabbing the victim, Tolentino pushed and
waded him into the water. Scared, Jonathan ran home. About twenty minutes later, Tolentino arrived and with thumbs up sign, he said, 'Okey
na!'. Jonathan also observed that there was blood on the shoulder of Tolentino. The latter then called the three (3) and warned them that if
they will tell other people, he will kill them. Out of fear, they just followed whatever Tolentino told them.
"By reason of fear of Tolentino's threat, Jonathan told the police that he did not know what happened. On 01 March 1996, however, he was
arrested for the death of Hernan Sagario on account of an information received by the police identifying him as the assailant. He was brought
to the Sta. Maria Police Station and thereat he was told by the police that if he will not admit, they will show him the witness, which the police
later did by showing to him his co-accused Tolentino. On seeing Tolentino, he declared that he (Tolentino) was the one who killed the victim.
"However, on 14 July 2000, long after the trial court's decision had become final and executory on his part, Wilfredo Tolentino, apparently
conscience-stricken, executed an affidavit admitting sole responsibility for the death of Hernan Sagario and retracted his testimony implicating
accused-appellant Jonathan Fabros. His affidavit is herein reproduced as follows:
'I, WILFREDO TOLENTINO y ESPERAT, 65 years old, widower, Filipino, a convicted prisoner with the San Ramon Prison and
Penal Farm in Zamboanga City, after having been duly sworn to in accordance with law hereby depose and state:
'That I was convicted for the crime of Murder in Criminal Case No. 13698 entitled 'The People of the Philippines, Plaintiff, versus,
Wilfredo Tolentino y Esperat and Jonathan Fabros y Castro, accused,' which Decision was promulgated on May 30, 1999 and ha[s]
become final;
'That of the four years I have been in prison, I have contemplated on the consequences of my acts and have been conscience
stricken causing me sleepless nights and deep pity [for] my co-accused Jonathan Fabros whom I have wrongfully imputed to be the
killer of the victim Hernan Sagario y Cuesta. As he appealed the Decision, [maybe] I still have the chance to rectify the wrong I have
done to him and tell the Honorable Court what actually happened [o]n the night of February 28, 1996, as hereunder narrated;
'That I had known Hernan Sagario earlier in 1994 when he was still a security guard and he attempted to shoot me with his service
firearm and although we had amicably settled the matter between us, when he came to be my neighbor, I would remember that
incident and my old grudge against him would be rekindled;
'That earlier that night of February 28, 1996, I came home quite drunk [after] my drinking spree with my relatives across the river and
one of the topics we discussed was about the incident when Hernan Sagario attempted to shoot me. As I recalled that incident, my
old grudge against him resurfaced and I resolved right then and there to take my revenge on Hernan. So when he came home and
he was in the kitchen, I took hold of a piece of wood and hit him with it and when he fell down unconscious, I dragged his body
outside of the house, ordering Jonathan Fabros who was then in the kitchen to help me carry the body of Hernan outside or else he
would also become my victim. Jonathan unwillingly assisted me carry the body of Hernan outside and upon my direction, we
dragged the body of Hernan towards the river where to finish him off, I stabbed [him] in the chest and pushed him down into the
water to hide his body. For his part, Jonathan left me when the body reached the river;
'That after [the] killing, I threatened Jonathan Fabros, Neneng (the daughter of Hernan's live-in-partner) and Weng-weng, a cousin of
Neneng and Jonathan[,] never to report the incident to any one or else they could become my next victim;
'That during the investigation of the killing, I pointed to Jonathan as the killer of Hernan, thinking that I would not be implicated. Even
when I was also charged for the killing, I was confident that I would be acquitted if I would point to Jonathan as the killer. During the
trial of the case, I bribed Jonathan and even gave P20,000.00 to a middle man to effect the pay off but Jonathan returned the money
to me saying he could not admit what he did not commit;
'That my conscience ha[d] been greatly troubled by denying Jonathan his future by [my] own evil acts and by this affidavit hopes to
correct the wrongs I had done to Jonathan Fabros;
'That I am executing this affidavit [to] attest to the truth of the foregoing narration of facts and to appeal to the Court authorities to
rectify the wrongs I had done to Jonathan Fabros and I am willing to testify in court o[n] these statements narrated.'"
Ruling of the Trial Court
The trial court held that the prosecution's evidence positively identified Wilfredo Tolentino as the person who had hit the victim with a piece of wood and
later stabbed him with a bolo. It also ruled that the killing was qualified by treachery and attended by the aggravating circumstance of dwelling.
The court a quo observed that overt and positive acts of appellant manifested his approval of the killing and the concurrence of his acts with those of the
other accused.
8
Thus, the RTC concluded that Fabros was a co-conspirator and should be held equally responsible for the murder.
Hence, this appeal.
9

The Issue
In his Brief, appellant assigns the following alleged errors for our consideration:
I
"The Court a quo gravely erred in convicting herein Accused-appellant Jonathan Fabros of the crime charged notwithstanding the categorical
statement of Prosecution Witness Sheila Guilayan that it was Accused Wilfredo Tolentino who actually killed the victim, Hernan Sagario.
II
"The Court a quo gravely erred in convicting accused-appellant notwithstanding Wilfredo Tolentino's categorical admission of guilt [of] the
crime charged."
10

The errors boil down to the sufficiency of the prosecution evidence.
This Court's Ruling
The appeal is meritorious; appellant should be acquitted.
Main Issue:
Sufficiency of Prosecution Evidence
The RTC held that the assistance of appellant in bringing the body of the victim from the house to the river bank where the latter was allegedly stabbed
to death positively showed that the former had conspired in the commission of the crime.
11
In its abbreviated nine-page Brief, the Office of the Solicitor
General agrees that conspiracy has been duly proven. On the other hand, appellant argues that his "fleeting participation" in helping carry the victim's
body to the river bank did not indicate unity of purpose or design. We agree with him.
An appeal in a criminal action opens the whole case to review. This implies that the Court may pass upon every circumstance favorable to the accused.
In People v. Manambit,
12
the Court explained thus:
"Indeed, the Supreme Court is clothed with ample authority to review matters, even those not raised on appeal, if it finds that their
consideration is necessary in arriving at a just disposition of the case. It is a matter of justice that the two other appellants be exonerated of the
charges. This we do because an appeal in a criminal action opens the whole case for review and this includes the review of the penalty and
indemnity. Every circumstance in favor of the accused shall be considered."
13

No Conspiracy
Even the Office of the Solicitor General admits that appellant did not directly kill the victim. It, however, urges us to convict him on the basis of
conspiracy.
In theory, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.
14
To prove
conspiracy, the prosecution must establish the following three requisites: (1) two or more persons came to an agreement, (2) the agreement concerned
the commission of a crime, and (3) the execution of the felony was decided upon.
15
Once conspiracy is established, the act of one becomes the act of
all.
16

Well-settled is the rule that the existence of conspiracy cannot be presumed.
17
Quite the contrary, the evidence for it must be shown beyond reasonable
doubt.
18
As this Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures.
19
Prior agreement or
assent is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of
sentiments or community of interests.
20
Mere presence at the scene of the crime or even knowledge of the plan or acquiescence thereto are not
sufficient grounds to hold a person liable as a conspirator.
21
Therefore, the task in every case is to determine whether the particular acts established by
the requisite quantum of proof reasonably yield that inference.
22

In the case before us, we agree that the culpability of Tolentino was clearly established, but we are also convinced that the evidence fails to show the
culpability of appellant beyond reasonable doubt.
23
Because, unquestionably, the latter did not personally inflict any of the fatal flows, he can be held
liable as a principal, only if conspiracy is proven.
24
To recall, Sheila Guilayan, the prosecution eyewitness, narrated the circumstances surrounding the
killing of Hernan Sagario as follows:
"Q On February 28, this year, 1996, at around 7:30 o'clock in the evening, can you still remember where were you?
A Yes, I could still remember, I was in our house.
Q You were in your house, are you referring to your house in Pasonanca, Luyahan?
A Yes.
Q Can you also remember who were with you in that evening of February 28, 1996 in your house at Pasonanca, Luyahan?
A Yes, I can still remember, my companions were Jonathan Fabros and Melwin Ledesma.
x x x x x x x x x
Q And you said while you were in the sala sitting down, writing, there was an incident that transpired, will you please tell us what
transpired?
ATTY. JIMENEZ:
That will ask for narration, what transpired?
COURT:
Be more specific on that.
PROSECUTOR ORILLO:
Q What happened?
A I was called by Tolentino and he requested me to go to their house.
Q You are referring to Wilfredo Tolentino?
ATTY. JIMENEZ:
Leading, Your Honor.
COURT:
Sustained.
PROSECUTOR ORILLO:
Q What did you do after you were called by this Tolentino?
A So I went with him to their house.
Q Where is his house?
A Just beside our house or near our house.
COURT:
Q Where was Tolentino when he called you to go with him?
A He was by the door of our house although he was still outside but he was at the door of our house when he called me.
COURT:
Continue.
PROSECUTOR ORILLO:
Q And you said you went with him to his house, now what happened there in his house?
A There in their house he told me just to keep quiet because he [was] going to kill my step-father.
Q And what did you do next after he told you about that?
A After he told me that I cried and I told him not to do that because we will be implicated.
Q What else did you do aside from crying and telling him not to do it because we will be implicated, what else did you do?
A Well, I just cried until my two cousins heard me and they, the two, also went to the house of Tolentino.
Q While your two cousins were already in the house of Tolentino, what happened next?
A My cousins asked me why I was crying.
Q And then?
A They asked Tolentino why I was crying.
Q What did you do next?
A I just cried and kept on telling him not to do it because we will be implicated and also my mother [was] not [t]here.
Q And how about Tolentino, what did he do?
A Well, he again told me just not to tell it to anybody because if I [was] going to tell it to anybody, he will also kill us.
Q How about your two cousins, what did they do?
A My cousins also told him not to do it because they said they [were] the only persons [t]here and for sure we will be implicated.
Q And thereafter, what happened next?
A Tolentino said he will just take care.
Q So what happened next after that?
A And then Tolentino asked Melwin Ledesma to get the bolo of my stepfather in our house.
Q And what did your cousin Melwin Ledesma do after he was ordered by Tolentino to get the bolo?
A Then Melwin Ledesma went to the house and got the bolo and brought the same to the house of Tolentino.
Q And after bringing the bolo to the house of Tolentino, what happened next?
A Then when my step-father was on his way to our house, Tolentino told us to go home."
25

"Q What happened next after you said your step-father went out to buy ovaltine?
A Then several minutes thereafter my stepfather again arrived in our house then he got inside the house and he went directly to the
kitchen.
Q And what did your step-father do?
A After that he transferred the rice he brought which was placed on a plastic cellophane to another plastic container.
Q And what else happened?
A And then after that Tolentino entered our house and went directly to the kitchen and there he hit my step-father.
Q And what instrument did Tolentino use in hitting your step-father?
A A piece of wood.
Q Will you please describe this piece of wood?
A A round piece of wood.
Q How about the length of this piece of wood?
A (Witness extended her both hands to demonstrate the length which when measured gave us twenty inches in length).
Q You said it was a round piece of wood, can you more or less tell us the diameter of this piece of wood?
A (Witness again made a circle to demonstrate the diameter which [was] three and a half inches x x x).
PROSECUTOR ORILLO:
Q And where was your step-father hit by that piece of wood used by Tolentino?
A He was hit on the right side of his neck x x x extending to his right jaw.
Q Will you please tell this Honorable Court your particular position when you saw Tolentino hit with the piece of wood your step-father?
A I was in a sitting position in the sala but you know in our house even if you are seated in the sala you can see the kitchen from there.
Q Before you saw that, where did Tolentino come from?
ATTY. JIMENEZ:
Witness is incompetent, Your Honor.
PROSECUTOR ORILLO:
If she knows, Your Honor.
ATTY. JIMENEZ:
She was seated in the sala, how can [she] know?
COURT:
According to her she went home and she was in the sala. If she went to the sala, probably she will know. If she knows she may
answer.
A I did not know where he came from but I just saw him getting inside our house and [going] directly to the kitchen.
PROSECUTOR ORILLO:
Q When you saw Tolentino hit your step-father, where was your step-father facing?
A He was facing forward while Tolentino came from behind him.
Q And what happened next after your step-father was hit by that piece of wood used by Tolentino?
A After he was hit he fell [face] down x x x, he fell down first on the table and after that to the ground. From the table he continued to fall to
the ground.
Q And while your step-father was already on the ground, what if any did Tolentino do?
A Then when my step-father was already at the cemented pavement Tolentino stepped on his head several times.
Q And then what happened next?
A After that I cried but he told me to keep quiet because if I [was] not going to keep quiet he will also kill us.
Q After that, what happened?
A And then he asked my cousins to help him to bring the body of my step-father outside of the house.
Q And then?
A Then they brought my step-father outside of the house and Tolentino held him on the collar of his shirt and my cousins held him on his
feet.
Q And while already outside the house, towards what direction did they bring your step-father?
ATTY. JIMENEZ:
Witness is incompetent, we object, Your Honor.
COURT:
Sustained.
PROSECUTOR ORILLO:
Q What else happened after you saw your cousins Jonathan Fabros and Tolentino carrying your step-father?
ATTY. FABIAN:
Objection, Your Honor, there was no mention of any Jonathan Fabros in her testimony.
COURT:
Cousin only.
ATTY. FABIAN:
Yes, Your Honor, cousin only, no mention of Jonathan Fabros.
COURT:
I do not know if it was cousin or cousins.
ATTY. JIMENEZ:
I heard cousins, Your Honor.
COURT:
Cousins, with 'S'. She may answer. Yes, according to her it was only her cousins who were with her.
ATTY. FABIAN:
I heard the name Jonathan Fabros being mentioned by the prosecution, Your Honor.
COURT:
That is why I told the prosecutor to change it to cousins.
ATTY. FABIAN:
Yes, Your Honor.
A It was only Jonathan and Tolentino who carried him.
Q So what happened next after you saw them carrying your step-father?
A They brought my step-father to the creek.
Q How far is this 'sapa' or creek from your house?
A Maybe from here (witness again by the use of the witness stand as reference point, pointed to the fourth bench from the front,) about 6.5
meters, because from the witness stand to the main door is measured 7.5 meters, so if it is from here, it is only 6.5 meters.
ATTY. JIMENEZ:
That is about 7 to 8 meters.
COURT:
That is about 7 meters already from the witness stand to the fourth bench, more or less 7 meters.
PROSECUTOR ORILLO:
Q This 'sapa' or creek that you are referring to, please describe to this Honorable Court this creek which according to you is only 7 meters
more or less away from your house?
A This is a wide creek.
Q And what else did you see?
A Well, since it was clear from our house although I stayed inside our house and since the walling of our house, the portion of this is made
of screen, I saw Tolentino when they were carrying my step-father in the act of stabbing my step-father (witness demonstrated as if she was
holding something and thrust[ing it] forward).
Q What else did you see?
A And then after that, I only saw Tolentino [place] the body of my step-father on the water and there I did not see my cousin anymore.
Q And then what transpired next?
A Then a few minutes thereafter my cousin returned to the house.
Q And what did you do when your cousin returned to the house?
A And then when he arrived home I just cried and I told him, because his nickname is Nonong, so I said: 'Nonong, we will be really
implicated and he said nothing and instead he just went to his previous position and sat down.
Q How about the other cousin of yours Melwin Ledesma, where was he?
A He was also beside me and he was embracing me from behind.
Q What happened next?
A Then another few minutes after, Tolentino arrived in our house.
Q And when he arrived at your house, what did he do?
A And then there inside our house he flashed a thumb's up and he said it is already okey.
Q What else did he do?
A Then he approached me and told me not to report [t]his incident because if I [was] going to report [it] he [was] going to kill me.
Q And that particular time when he arrived at your house, what if any did you notice from his person, this Tolentino?
ATTY. JIMENEZ:
Leading, Your Honor.
COURT:
Sustained.
PROSECUTOR ORILLO:
What if any have you noticed from Tolentino?
COURT:
Will you please be more specific with your question.
PROSECUTOR ORILLO:
At the time when Tolentino arrived at your house and told you 'okey na', with thumb's up, that particular time, what if any have you
noticed on his person?
ATTY. JIMENEZ:
It is [a] very general question, Your Honor.
COURT:
Anything she noticed, she may answer.
A I noticed that his shortpants was wet and there [were] bloodstains on his shirt."
26

The above testimony shows that Tolentino attacked Hernan Sagario. The assault was carried out without the participation of appellant,
27
who did not
personally hit or stab the victim, but only subsequently helped carry the latter from the house to the nearby creek.
28
Nothing in the testimony conveyed a
coordinated action, concerted purpose or community of design to commit the criminal act.
29
It must be emphasized that Tolentino's plan to kill the victim
was concocted in the absence of appellant.
30
The latter's participation, as shown by the foregoing testimony, was made when the decision to kill was
already a fait accompli.
31

Further, conspiracy cannot be inferred from the overt acts of appellant.
32
He did nothing to assist Tolentino in the actual commission of the
murder.
33
Neither did the former bear any weapon, much less use one to inflict injury on the victim.
34
In fact, appellant, showing clearly his lack of support
for the criminal intent of Tolentino, even tried to prevent the latter from hacking the victim, according to the eyewitness.
35

Indeed, the trial court based its finding of conspiracy on mere presumptions, not on solid facts indubitably indicating a common design to commit
murder.
36
Such suppositions do not constitute proof beyond reasonable doubt.
37

Because of the lack of a united purpose, appellant cannot be considered a principal by indispensable cooperation.
38
Absent a conspiracy, his
responsibility, as well as that of his co-accused, is individual -- not collective -- and each is to be punished only for his own separate acts.
39

Not an Accomplice
Neither can appellant be convicted as an accomplice. Article 18 of the Revised Penal Code defines accomplicesas "those persons who, not being
included in Article 17,
40
cooperate in the execution of the offense by previous or simultaneous acts." To be convicted as an accomplice, it is necessary
that the accused be aware of the criminal intent of the principal and then cooperate knowingly or intentionally by supplying material or moral aid for the
efficacious execution of the crime.
41

To consider a person an accomplice in the commission of the offense, the following must concur: (1) community of design -- knowing the criminal design
of the principal by direct participation, one concurs therein; (b) cooperation in the execution of the offense by previous or simultaneous acts, with the
intention of supplying material and moral aid in the execution of the crime in an efficacious way; and (c) a relation between the acts done by the principal
and those attributed to the person charged as accomplice.
42

To be deemed an accomplice, one needs to have had both knowledge of and participation in the criminal act.
43
In other words, the principal and the
accomplice must have acted in conjunction and directed their efforts to the same end.
44
Thus, it is essential that both were united in their criminal
design.
45

In the case before us, appellant did not concur in or lend support to the nefarious intent of Tolentino.
46
The mere fact that the former had prior knowledge
of the latter's criminal design did not automatically make him an accomplice.
47
This circumstance, by itself, did not show his concurrence in the principal's
criminal intent.
48

That appellant helped Tolentino carry the victim from the house to the creek did not necessarily demonstrate concurrence of wills or unity of purpose or
action.
49
Quite the contrary, the former's attempt to dissuade the latter from killing Sagario was attested to by the prosecution witness.
50
With the nominal
role appellant played in the drama that had been thrust upon him, we cannot declare that he was an accomplice in the crime charged.
51

Not an Accessory Either
Appellant cannot be convicted as an accessory either. Article 19 of the Revised Penal Code defines an accessory as one who had knowledge of the
commission of the crime and did not participate in its commission as principal or accomplice, yet took part subsequent to its commission by any of three
modes: (1) profiting oneself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects
or instruments thereof, in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided
the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crime. To convict an accused as an accessory, the following elements must be proven: (1)
knowledge of the commission of the crime and (2) subsequent participation in it by any of the three above-cited modes.
52

Under paragraph 2 of said codal provision, the concealment or the destruction of the body of the crime or of the effects or the instruments thereof must
have been done in order to prevent the discovery of the crime.
53
That, precisely, is wanting in the present case.
54

In his testimony,
55
appellant stated that because he was afraid his co-accused would hurt him if he refused, he agreed to assist the latter in carrying the
victim towards the river. The fact that appellant left thereafter likewise indicated his innocence of the charge.
56
Verily, he adequately explained his
conduct prior to the stabbing incident as one born of fear for his own life.
57
It is not incredible for an eyewitness to a crime, especially if unarmed, to
desist from assisting the victim if to do so would put the former's life in peril.
58

Thus, in People v. Verzola,
59
we explained as follows:
"x x x. It must be noted that Josefina testified that she helped her co-appellant bring the body of the deceased down the stairs because of fear.
Even if she assisted her co-appellant without duress, simply assisting Verzola in bringing the body down the house to the foot of the stairs and
leaving said body for anyone to see, cannot be classified as an attempt to conceal or destroy the body of the crime, the effects or instruments
thereof, must be done to prevent the discovery of the crime."
60

The presumption of innocence in favor of appellant has not been overcome by proof beyond reasonable doubt.
61
Thus, he must be acquitted.
62

WHEREFORE, the appeal is GRANTED and the assailed Decision SET ASIDE. Appellant is ACQUITTED on reasonable doubt. He is
ordered RELEASED from custody immediately, unless legally held for another cause. In this regard, the director of the Bureau of Corrections is directed
to report to this Court his compliance with this Decision within five (5) days from receipt hereof.
SO ORDERED.
Melo, Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., abroad on official business.




















































Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 128900 July 14, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO S. ANTONIO, SPO4 JUANITO N. NIETO and SPO1 HONORIO CARTALLA, JR., accused-appellants.
D E C I S I O N
YNARES-SANTIAGO, J .:
This is an appeal from the Decision dated April 30, 1997, rendered by the Regional Trial Court of Pasig City, Branch 156 in Criminal Case No. 111232-
H, for Murder, the dispositive portion of which is quoted hereunder, to wit:
WHEREFORE, finding accused ALBERTO S. ANTONIO @ "Ambet", GUILTY beyond reasonable doubt of the crime of Murder, qualified by treachery as
charged in the Information, and there being no mitigating or any aggravating circumstance, he is hereby sentenced to suffer the penalty of reclusion
perpetua, pursuant to Sec. 6 of Republic Act No. 7659 entitled "An Act to Impose The Death Penalty On Certain Heinous Crimes" and Art. 63, paragraph
2 of the Revised Penal Code.
In the service of his sentence, accused ALBERTO S. ANTONIO @ "Ambet" shall be credited in full with the period of his preventive imprisonment.
The guilt of both accused JUANITO NIETO y NEMER and HONORIO C. CARTALLA, JR., as accessories, having also been established beyond any
reasonable doubt, each of them is hereby sentenced to suffer the indeterminate penalty of two (2) years, four (4) months and one (1) day of prision
correcional as minimum to eight (8) years and one (1) day of prision mayor as maximum.
Accused ALBERTO S. ANTONIO @ "Ambet" is likewise hereby ordered to pay, unto the heirs of Arnulfo B. Tuadles, the following sums:
a. P50,000.00, as indemnity for the death of Arnulfo B. Tuadles;
b. P226,298.36, as actual damages;
c. P7,200,000.00, representing compensable earnings lost by reason of Arnulfo B. Tuadles death;
d. P3,000,000.00 or the stipulated P1,000,000.00 each for the three (3) children of Arnulfo B. Tuadles, and another P500,000.00 for the
widow, Ma. Odyssa "Suzette" Tecarro-Tuadles, as moral damages;
e. P50,000.00, as exemplary damages;
f. Costs.
In case of insolvency of accused ALBERTO S. ANTONIO @ "Ambet", accused JUANITO NIETO y NEMER and HONORIO C. CARTALLA, JR., shall be
liable to pay, jointly and severally, one-third (1/3) of the above-adjudicated sums or the amount of P3,675,432.78 unto the said heirs of Arnulfo B.
Tuadles.
In any event, the foregoing civil liabilities shall all be without subsidiary imprisonment in case of insolvency.
Being instruments of the crime, let the caliber .9mm Beretta Mode 92F with Serial Number BER-041965-Z, including its black magazine and five (5) live
bullets, which are presently under the custody of the Court, be confiscated and forfeited in favor of the Government and turned over to the Firearms and
Explosives Office, Camp Crame, Quezon City.
Let a Commitment Order be issued for the transfer of accused ALBERTO S. ANTONIO @ "Ambet" from the San Juan Municipal Jail to the Bureau of
Corrections, Muntinlupa City.
SO ORDERED.
1

On that fateful morning of November 2, 1996, what should have been an amiable game of cards between two erstwhile friends turned into a deadly
confrontation resulting in the fatal shooting of one by the hand of the other. The victim, Arnulfo "Arnie" Tuadles, a former professional basketball player,
succumbed instantaneously to a single gunshot wound right between the eyes, inflicted with deadly precision by the bullet of a .9mm caliber Beretta
pistol.
Convicted of murder by the trial court as the killer is Alberto "Ambet" S. Antonio, a one-time chairman of the Games and Amusement Board (GAB). It
was during his stint as such that he and Tuadles became socially acquainted. They somehow lost touch, but later became reacquainted when they both
started frequenting the International Business Club (IBC), located along Wilson Street in San Juan, Metro Manila, which houses amenities such as a
dining room, music bar and gameroom. Often, the two would meet with other members and friends to play cards in the gameroom at the second floor of
the club. Their preferred games were poker or "pusoy dos", ordinary poker or Russian poker. Their bets always ran into the tens of thousands of pesos.
The tragic events began to unravel in the final hours of November 1, 1996. Antonio, Tuadles, and a certain Danny Debdani, then president of the IBC,
had agreed to meet at the club for another poker session, their third night in a row. Antonio arrived at the club first, followed by Tuadles at around
midnight. Debdani, however, failed to appear, so after waiting for sometime, Antonio and Tuadles decided to play "pusoy dos", a game for two (2)
players only. They continued playing until morning, pausing only when either of them had to visit the restroom. They stopped playing at around 9:00
oclock in the morning of November 2, 1996, to eat breakfast.
When it came time to tally their scores and collect the winnings from the loser, an argument arose. It is at this point where the prosecution and the
defense presented two very different scenarios. The prosecution alleged and sought to prove that in the course of an argument, without warning or
cause, Antonio pulled his gun from behind his back and shot Tuadles at very close range, thus employing treacherous means to accomplish the
nefarious deed. The pivotal evidence presented by the prosecution was the testimony of one Jose Jimmy T. Bobis, a security guard who testified as to
how the shooting of Tuadles occurred.
On the other hand, the defense hinged its opposing arguments on the testimony of accused Antonio himself, who testified that their argument was
caused by Tuadles refusal to pay Antonios winnings. In the middle of a heated altercation where they traded expletives, Tuadles suddenly grabbed
Antonios gun from atop a sidetable. Fearing for his life, Antonio claimed that he reached for Tuadles hand and they grappled for possession of the gun.
As they wrestled, a single shot roared, Tuadles fell face down to the floor, and Antonio was left too stunned to recall who had actually pulled the trigger.
In fine, Antonio alleged that the shooting was accidental, and his only motivation was to defend himself. He also refuted the testimony of the
prosecutions eyewitness, averring that SG Bobis could not have seen the actual shooting since he (Bobis) and co-accused SPO4 Juanito Nieto, who
were alerted by Antonios yells, reached the scene when Tuadles had already been shot and was lying on the floor.
While Tuadles lay bloodied and still, no one remembered to call an ambulance or check if he was still alive. Instead, and there is no dispute in these
succeeding events, Antonio convinced the two (2) security guards, prosecution eyewitness SG Bobis included, to accompany him to his home in
Greenmeadows Subdivision, Quezon City, after which they proceeded to the San Juan Police Station. With them was SPO4 Nieto, a member of the San
Juan Police Force. They remained at Antonios residence for several hours, during which time Antonio made phone calls and summoned his lawyer. At
around 3:00 oclock in the afternoon, Antonio, accompanied by SPO4 Nieto, placed himself and his gun in the custody of San Juan Mayor Jinggoy
Estrada and the police authorities. Later, the two security guards and SPO4 Nieto were driven back to the club where they waited for the police
investigators. Sometime thereafter, SG Bobis narrated the events and executed his statement at the police station, a statement which he would
repudiate three (3) days later.
On November 18, 1996, an Information was filed against Antonio for the crime of murder. Also charged as accessories were SPO4 Nieto and SPO1
Honorio Cartalla, Jr. The Information alleged that:
On or about November 2, 1996, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused Antonio, armed with a gun,
did then and there wilfully, unlawfully and feloniously, with intent to kill and with treachery, attack, assault and use personal violence upon the person of
Arnulfo "Arnie" Tuadles, by then and there suddenly, unexpectedly, deliberately and without provocation, shooting Arnulfo "Arnie" Tuadles on his
forehead, right between the eyes, thereby inflicting upon the latter mortal wound which was the direct and immediate cause of his death;
The accused Nieto, without having participated in said crime of murder, either as principal or accomplice, did then and there wilfully, unlawfully and
feloniously take part subsequent to its commission, with abuse of his public functions and position as a public officer, by harboring or assisting the
accused Antonio, by then and there failing to arrest and surrender immediately the said accused Antonio to the authorities and by giving false
information which tended to deceive the investigating authorities; and
The accused Cartalla, Jr., without having participated in said crime of murder either as principal or accomplice, did then and there wilfully, unlawfully and
feloniously take part subsequent to its commission, with abuse of his public functions and position as a public officer, by concealing or destroying the
effects or instruments of the body of the crime, in order to prevent its discovery, by then and there removing the laser sight of the gun used in shooting
Tuadles, deliberately omitting to take steps to preserve the evidence at the scene of the crime, and purposely failing to call on the crime laboratory
service of the proper agencies for appropriate action.
Contrary to law.
2

Upon arraignment, co-accused SPO1 Cartalla, Jr. entered a plea of "Not Guilty." Accused Antonio and SPO4 Nieto both refused to enter a plea, and the
trial court entered a plea of "not guilty" for both of them.
After trial on the merits, all three accused were found guilty as charged, imposing on them the appropriate penalties and ordering them to pay to the
heirs of Tuadles various amounts as and for indemnity and damages, set forth in the dispositive portion quoted above. All three accused filed separate
appeals assailing the trial courts findings and disposition.
Appellant Antonio assails the trial courts judgment on the following assigned errors:
I
THE TRIAL COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF JOSE "JIMMY" BOBIS WHICH CONFLICTS
DRASTICALLY NOT ONLY WITH HIS INITIAL DECLARATIONS BUT ALSO WITH HIS PREVIOUSLY EXECUTED STATEMENT, AND
WHICH TESTIMONY IS TAINTED WITH SERIOUS INCONSISTENCIES, INCREDIBILITIES, AND OMISSIONS ON SUBSTANTIAL
MATTERS.
II
THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY ATTENDED THE COMMISSION OF THE OFFENSE CHARGED.
III
THE TRIAL COURT ERRED IN NOT GIVING CREDENCE TO THE VERSION OF APPELLANT ALBERTO "AMBET" ANTONIO.
IV
THE TRIAL COURT ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER.
V
THE TRIAL COURT ERRED IN NOT FINDING THAT SUFFICIENT PROVOCATION ON THE PART OF THE VICTIM ARNULFO "ARNIE"
TUADLES IMMEDIATELY PRECEDED THE COMMISION OF THE IMPUTED ACT, AND IN NOT APPRECIATING THIS MITIGATING
CIRCUMSTANCE.
VI
THE TRIAL COURT ERRED IN AWARDING THE SUM OF P7,200,000.00 AS COMPENSABLE EARNINGS LOST BY REASON OF ARNIE
TUADLES DEATH, DESPITE INADEQUATE EVIDENCE TO SUPPORT SUCH AWARD.
VII
THE TRIAL COURT ERRED IN AWARDING PALPABLY EXCESSIVE MORAL DAMAGES TO THE HEIRS OF ARNIE TUADLES.
VIII
THE TRIAL COURT ERRED IN FINDING APPELLANT ALBERTO "AMBET" ANTONIO GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF MURDER.
3

Appellant SPO4 Nieto likewise questions the trial courts decision, arguing that:
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING NIETO AS AN ACCESSORY
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED BY THE PRINCIPAL ACCUSED ANTONIO WAS
MURDER
4

Appellant Cartalla, Jr. also challenged the said decision on the following grounds:
I
THE COURT OF ORIGIN HAS COMMITTED A BLATANT ERROR IN CONVICTING SPO1 HONORIO CARTALLA, JR. AS ACCESSORY TO
THE CRIME CHARGED DESPITE THE FACT THAT THE RECORD IS SO REPLETE WITH EVIDENCES THAT THERE ARE REASONABLE
DOUBTS TO HOLD HIM AS SUCH.
II
THE COURT A QUO COMMITTED A GRAVE ERROR AND HAS NOT SHOWN FAIRNESS IN NOT CONSIDERING FULLY THE GOOD
FAITH, DILIGENCE AND HARD WORK EXERTED BY SPO1 HONORIO CARTALLA, JR. WHEN HE INVESTIGATED THE CASE ON HAND
TILL THE TIME HE DELIVERED THE SPECIMEN OR PIECES OF PHYSICAL EVIDENCE OF THE CRIME TO THE PNP-CLS, CAMP
CRAME, QUEZON CITY.
III
THE LOWER COURT HAS COMMITTED A SERIOUS MISTAKE IN DISREGARDING THE SIXTEEN (16) YEARS OF ACTIVE POLICE
SERVICE OF SPO1 HONORIO CARTALLA, JR. SHOWN WITH DEDICATION AND LOYALTY THERETO SUSTAINING MORE HIS
INNOCENCE OF THE CRIME CHARGED HEREIN.
5

Considering that appellant Antonio is the principal accused, we shall deal first with the issues raised in his appeal, foremost of which is the credibility of
the prosecutions sole eyewitness, SG Jose Jimmy Bobis. Appellant Antonio challenges SG Bobis worth and credibility as an eyewitness on two (2)
grounds.
First, SG Bobis, in his first sworn statement before the San Juan authorities averred that he did not see the actual shooting since he was still ascending
the stairs leading to the second floor where the crime took place when he heard the gunshot. Days later, in a second statement taken at the Eastern
Police District (EPD) and in his testimony before the trial court, SG Bobis negated his earlier statement, this time averring that he had indeed seen
appellant Antonio pull his gun from behind, and with neither warning nor provocation, aim the gun at the head of Tuadles and shoot the latter pointblank.
This complete turnabout in SG Bobis testimony, according to appellant Antonio, is a sure sign of the said witness unreliability, incredibility, and
unworthiness. He also points out the contradictions and inconsistencies between SG Bobis first and second statements and court testimony.
Second, appellant Antonio belittles SG Bobis reasons for giving the San Juan Police investigators false information in his first statement, saying that
nobody threatened SG Bobis if he testified against appellant Antonio. On the other hand, appellant Antonio suggests that it was Colonel Lucas
Managuelod of the EPD who coerced SG Bobis to change his statement and testimony so that the murder charge against appellant Antonio would be
strengthened.
There is no question that SG Bobis second statement and court testimony, on the one hand, contradicted what he previously narrated in his first
statement, on the other hand. The question therefore is: Which is more credible and of more value to the courts in ascertaining the guilt or innocence of
the accused?
It is a matter of judicial experience that affidavits or statements taken ex parte are generally considered incomplete and inaccurate. Thus, by nature, they
are inferior to testimony given in court, and whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony
commands greater weight.
6
Moreover, inconsistencies between the declaration of the affiant in his sworn statements and those in open court do not
necessarily discredit said witness.
7
Thus, the trial court followed precedents in giving more credence to SG Bobis testimony given in open court despite
his having executed an earlier statement which was inconsistent with his testimony.
Besides, when confronted with his first contradictory statement, SG Bobis explained the reasons why he was moved to give false information in his first
statement. He had testified that moments after he saw appellant Antonio shoot Tuadles, the appellant warned him: "Ikaw, wag kang tumistigo,
ha."
8
Later, he and the other security guard, SG Olac, were allegedly coerced to go to the appellants house in Quezon City. He also testified that while
they were there, appellant Antonio and his lawyer instructed him (Bobis), should the police investigator ask him who shot Tuadles, to say that what
happened was only an accident.
9

At the police station, appellant SPO4 Nieto allegedly told SG Bobis to say that they were both outside the club when the trouble started, saying:
"kailangan ipalabas natin na nasa labas tayo ng club."
10
Bobis stated that he was confused and afraid, and, therefore, told the police investigator,
appellant Cartalla, Jr., on November 2, 1996, that he did not see appellant Antonio shoot Tuadles because he was still ascending the stairs when the
gun went off.
Apparently, it was not only fear that ruled his thoughts and actions at that time, but also remorse and confusion. As found by the trial court:
He admits that he had acted contrary to the ethical standards and code of conduct of private security guards when he did not make a formal report to his
superior about the shooting incident of November 2, 1996 at the Club but countered that this was because accused Antonio had taken him to the latters
house. This being so, neither was he able to put said accused Antonio under arrest.
Added to this was the fact that even accused Nieto, a policeman in active service who was with them at the time and who should have done so, had also
failed to arrest accused Antonio, more so with him and SG Olac who are just ordinary security guards. ("Dahil po maam, si SPO4 Nieto, pulis na po ang
kasama namin, hindi niya po nagawa na arestuhin si Mr. Ambet Antonio mas lalo po kami na ordinary guard lang po.")
True, he had his service .38 caliber in his possession at the time. Nevertheless, because accused Antonio looked: "parang galit pa sila sa amin" he can
not, as in fact he did not, insist that instead of going to the house of accused Antonio, he will effect the arrest.
11

Nevertheless, Bobis stated that his conscience bothered him, and seeing Tuadles widow crying on television, he gathered enough resolve and courage
to finally tell the truth to the police authorities at the EPD. When he testified in open court, SG Bobis did not waver in his declaration that he witnessed
appellant Antonio suddenly pull his gun from behind and shoot Tuadles three (3) feet away.
Rule 132, Section 13 of the Rules of Court provides that:
Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him
concerning them. (Underscoring ours).
Thus, this Court has uniformly held that:
Previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he
was then given an opportunity to explain them. It is only when no reasonable explanation is given by a witness in reconciling his conflicting declarations
that he should be deemed impeached.
12

We find no reason to discredit the trial courts finding that the reasons given by SG Bobis sufficiently explained the conflicting declarations he made in
his two (2) sworn statements and in his court testimony. Therefore, he cannot be impeached as an eyewitness. This Court also recognizes that the initial
reticence of witnesses to volunteer information about a criminal case and their aversion to be involved in criminal investigations due to fear of reprisal is
not uncommon, and this fact has been judicially declared not to adversely affect the credibility of witnesses.
13

Apart from the issue of SG Bobis having given an earlier contradictory statement, his direct testimony and answers under cross-examination appear
clear and convincing. We agree with the trial court when it held:
But it is SG Bobis whom the Court finds credible.
Why he had executed a first, then a second statement, totally in conflict with each other, SG Bobis had fully explained to the satisfaction of the Court. His
lowly station in life had been taken advantage of by accused Antonio and Nieto. These two (2) had thought that they had succeeded in completely
prevailing upon SG Bobis. For did not SG Bobis tell their lies?
Still, the conscience of a good man had won over.
SG Bobis had redeemed himself. He gave spontaneous and straightforward answers to the gruelling questions propounded on him and had stuck to his
truth.
The Court had painstakingly, taken note of each of the witnesses demeanor on the stand. While SG Bobis was steadfast with his words, accused
Antonio and Nieto were evidently recalling from a script. The other prosecution witnesses, SG Olac and Romeo M. Solano were, like SG Bobis,
untainted in their testimonies.
14

Finding nothing that would compel us to conclude otherwise, we respect the findings of the trial court on the issue of the credibility of SG Bobis as an
eyewitness, especially considering that the trial court was in a better position to decide the question, having heard the witness himself and observed his
deportment and manner of testifying during the trial.
15

In the recent case of People v. Pili, this Court had occasion to rule that:
It is doctrinally settled that the assessments of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of
its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. These are the
most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its
observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and
which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or circumstances of weight
have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.
16

And in People v. Deleverio, this Court ruled that:
It is axiomatic to point out, furthermore, that in an appeal, where the culpability or innocence of an accused would hinge on the issue of credibility of
witnesses and the veracity of their testimonies, findings of the trial court are entitled to and given the highest degree of respect.
17

Moreover, in People v. Reynaldo, we reiterated the principle that:
The matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate
magistrates, can weigh the testimony of a witness in the light of his demeanor, conduct and attitude as he testified, and is thereby placed in a more
competent position to discriminate between the true and the false.
18

There are other reasons why the eyewitness testimony of SG Bobis was given full faith and credit. SG Bobis, a mere security guard, realized he was no
match to appellants Antonio and SPO4 Nieto. The former, a wealthy businessman, is known as an intimate friend of people in power. Appellant Antonio
admitted in court that he surrendered himself and his gun to Mayor Jinggoy Estrada, who was his good friend. Hours later, he went to see then Vice
President Joseph Estrada in Tagaytay City so he (Antonio) could tell his friend, the Vice President, what happened in his own words.
19

Appellant SPO4 Nieto was a member in active duty of the San Juan Police Force who was close to appellant Antonio. Considering SG Bobis lowly
station in life, as compared to that of the said appellants, it is understandable that his initial reaction to the shocking events would be one of intimidation,
if not fear. SG Bobis believed then, and no one can fault him for thinking so, that going against the instructions and dictates of appellant Antonio and
SPO4 Nieto would make life very difficult for him, knowing they were well-connected to the powers that be. This perceived threat, whether real or
imagined, compelled him to take the easy way out and just repeat what appellants told him to say.
There is an oft-quoted adage that a person may be able to avoid his enemies, but he can never run away from himself. SG Bobis may have momentarily
avoided incurring the wrath of the appellants by acceding to their dictates, but he could not escape the proddings of his conscience. He realized he had
to right a wrong, and this he did with selflessness and at great risk to himself.
Furthermore, appellants could not impute any ill motive on the part of SG Bobis except the statement that it was Colonel Lucas Managuelod of the EPD
who told him how to testify. Thus, his positive and categorical declarations on the witness stand under solemn oath without convincing evidence to the
contrary deserve full faith and credence.
20

Appellant Antonio, however, would seek to completely avoid culpability by claiming that the shooting of Tuadles was caused by mere accident without
his fault or intention of causing it, or that he acted in self-defense.
Well-entrenched in our jurisprudence is the rule that where an accused admits having killed the victim but invokes self-defense to escape criminal
liability, he assumes the burden of proof to establish his plea of self-defense by clear, credible and convincing evidence.
21
To successfully interpose self-
defense, appellant Antonio must clearly and convincingly prove: (1) unlawful aggression on the part of the victim; (2) the reasonable necessity of the
means employed to prevent or repel the attack; and (3) the person defending himself must not have provoked the victim into committing the act of
aggression.
22

Without granting that his testimony is an accurate narration of the events that took place, we shall discuss the points raised by appellant Antonio only for
the purpose of determining whether the requisites of self-defense were attendant as claimed. In his testimony appellant Antonio alleged that Tuadles
committed an act of aggression when he (Tuadles) grabbed the gun which was on top of a sidetable. Appellant Antonio then concluded that Tuadles had
the sole intention of using the gun against him (Antonio), so he grappled with Tuadles to prevent the latter from shooting him. His bare testimony,
uncorroborated as it is, does not convince us that Tuadles would, so to speak, beat him to the draw. The testimony of Bobis shows that Tuadles was
calm in answering Appellant Antonios loud invectives, and it would be hard to imagine Tuadles as the aggressor under such a situation. And even if
Tuadles had grabbed the gun, it could very well have been that Tuadles intended to keep the gun away from appellant Antonio to prevent the latter from
using it against him considering the state of mind and the foul mood appellant Antonio was in. This would be a more believable scenario since even
appellant Antonio admitted that he was suffused with anger, his temper short due to three (3) consecutive sleepless nights.
Appellant Antonio never said that Tuadles aimed or pointed the gun at him. There is no evidence, apart from appellant Antonios uncorroborated
testimony, that Tuadles made an attempt to shoot him. Hence, there is no convincing proof that there was unlawful aggression on the part of Tuadles.
For unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a
threatening or intimidating attitude.
23
The burden of proving unlawful aggression lay on appellant Antonio, but he has not presented incontrovertible proof
that would stand careful scrutiny before any court. Lacking this requirement, appellant Antonios claim of self-defense cannot be appreciated. He cannot
even claim it as an extenuating circumstance.
24

Besides, it cannot be said that appellant Antonio did not provoke Tuadles, if indeed the latter had grabbed the gun from the table. Antonio himself
admitted that he was shouting and cursing Tuadles while in a furious rage. Such a threatening stance could be interpreted as a provocation which could
have prompted Tuadles to get the gun so that appellant Antonio, in his anger, would not be able to use it against Tuadles. If ever there was provocation,
it was certainly coming from appellant Antonio, not from Tuadles.
In the alternative, appellant Antonio claims that the shooting of Tuadles was an accident. He further argues that Tuadles was killed while he, Antonio,
was performing a lawful act with due care, and without fault or intention of causing it. Having ruled that appellant Antonio failed to prove his claim of self-
defense, (i.e., there was no unlawful aggression on the part of Tuadles and provocation coming from Antonio himself), there is no basis for us to argue
with appellant Antonio that he was performing a lawful act when he shot Tuadles.
25

We note that appellant Antonios version of how the shooting took place leaves much room for conjecture. It is true that there is no fixed dictum on the
reaction of a person under the circumstances of a sudden death he may have caused. He could react in a variety of ways, some of them even irrational.
However, we respect the trial courts findings. The trial court upheld the prosecutions version thus sustaining the theory that if Antonio indeed shot
Tuadles by accident, the natural reaction expected of him would be to immediately see to it that Tuadles be brought to a hospital or get medical attention
at the quickest time possible. Instead, appellant Antonio left Tuadles, who was supposed to be his good friend, lying dead on the floor for several hours.
If indeed he and Tuadles both had their hands on the gun and there was no telling who actually pulled the trigger, we agree that appellant Antonio
should have seen to it that no one else would touch the gun barehanded to preserve the fingerprints on it. Instead, he gave the gun to SPO4 Nieto who
had no concern for preserving the fingerprints on the gun. Not only that, appellant Antonio also handed the gun to Mayor Jinggoy Estrada. Thus, one
tangible piece of evidence that could have proven his claim of self-defense or accident was unfortunately lost due to his lack of presence and due care.
Appellant Antonios ambivalence in his choice of defenses is clear from the records. First, he denies that he pulled the trigger because it was Tuadles
who was holding the gun. Then he says that he cannot recall who fired the gun so it could have very well been either him or Tuadles who did it. Next, he
admits firing the gun, but he did it in self-defense. Only, he could not indubitably prove that there was unlawful aggression on the part of Tuadles. Failing
there, he again admitted shooting Tuadles, but that it was an accident. Again, he failed to prove that he was in the process of performing a lawful act
when he shot Tuadles.
When an accused invokes self-defense or claims that it was an accident to escape criminal liability, he admits having caused the death of the victim. And
when he fails to prove by clear and convincing evidence the positiveness of that justifying circumstance, having admitted the killing, conviction of the
accused is inescapable.
26
Appellant Antonio had to rely on the strength of his evidence and not on the weakness of the prosecutions evidence for, even
if the latter were weak, his invoking self-defense is already an open admission of responsibility for the killing.
27
As it was, appellant Antonios testimony is
not only uncorroborated by independent and competent evidence, but also doubtful by itself
28
for being ambivalent and self-serving.
29

Having admitted responsibility for the killing of Tuadles, appellant Antonio claims the mitigating circumstance of voluntary surrender. On this score, we
find merit in his claim considering that all the elements in order that voluntary surrender may be appreciated were attendant in his case. First, he had not
been actually arrested;Second, he surrendered himself to a person in authority; and Third, his surrender was voluntary. It is of no moment that appellant
Antonio did not immediately surrender to the authorities, but did so only after the lapse of about six (6) hours. In the case of People v. Bautista,
30
the
voluntary surrender of the accused to a police authority four (4) days after the commission of the crime was considered attenuating. There is no dispute
that appellant Antonio voluntarily surrendered to the mayor, a person in authority, before he was arrested, hence the mitigating circumstance of voluntary
surrender should be considered in appellant Antonios favor.
31

Appellant Antonio also claims the mitigating circumstance of sufficient provocation on the part of Tuadles. To avail of this mitigating circumstance, it must
be shown that the provocation originated from the offended party.
32
However, apart from his own testimony, appellant Antonio has not proven by
convincing evidence that he was provoked by Tuadles. He claimed that Tuadles provoked him when the latter refused or could not pay his winning.
Refusal to pay cannot be a mitigating provocation for appellant Antonio to kill Tuadles. An unpaid debt cannot, and never will, be a reason to shoot the
debtor dead. Besides, appellant Antonio had no other proof that he won and that the argument arose from Tuadles refusal to pay. His bare testimony is,
at best, self-serving. Accordingly, appellant Antonio is not entitled to the benefit of the mitigating circumstance of sufficient provocation.
33

There is, however, a significant and consequential aspect of the case which the trial court overlooked and disregarded.
As earlier stated, we find no sufficient reason to disagree with the trial court when it relied on the testimony of SG Bobis. However, we have carefully
examined said testimony, the records of this petition, and the justifications of the trial court upon which it based its decision.
There is no basis for the trial courts conclusion "that accused Antonio consciously and deliberately adopted his mode of attack to insure the
accomplishment of his criminal design without risk to himself."
34
It ruled that treachery qualified the killing to murder. The trial court did not explain the
basis for the qualification except for a terse citation that there was a sudden attack and the victim had no opportunity to defend himself or to retaliate. As
stated by counsel for appellant, out of the 71-page decision, typed single space, the trial court devoted only a few sentences to the issue of treachery.
There was no treachery in this case.
It is not only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate adoption of the mode of attack for a specific
purpose.
All the evidence shows that the incident was an impulse killing. It was a spur of the moment crime.
The precedents are many. They are consistent. Among them:
"Mere suddenness of attack is not enough to constitute treachery where accused made no preparation or employed no means, method and form of
execution tending directly and specially to insure the commission of a crime and to eliminate or diminish risk from defense which the victim may take."
35

"A sudden and unexpected attack would not constitute alevosia where the aggressor did not consciously adopt a mode of attack intended to perpetrate
the homicide without risk to himself."
36

"A sudden and unexpected attack constitutes the absence of alevosia where it did not appear that the aggressor had consciously adopted a mode of
attack intended to facilitate the perpetration of the homicide without risk to himself, as where the appellant followed the victims when the latter refused
appellant's invitation to have some more alcoholic drinks."
37

"The mere suddenness of attack does not, of itself suffice for a finding of alevosia if the mode adopted by the accused does not positively tend to prove
that they thereby knowingly intended to insure the accomplishment of their criminal purpose without any risk to themselves arising from the defense that
might be offered."
38

"The aggravating circumstance of treachery is not present when decision to attack was arrived at on the spur of the moment."
39

The annotations are similarly consistent. It is not enough that the means, methods, or form of execution of the offense was without danger to the
offender arising from the defense or retaliation that might be made by the offended party. It is further required, for treachery to be appreciable, that such
means, method or form was deliberated upon or consciously adopted by the offender.
40
Such deliberate or conscious choice was held non-existent
where the attack was the product of an impulse of the moment.
41

The trial court's ruling that the mere suddenness of an attack makes the killing a murder because of treachery is not consistent with the decisions of this
Court.
42
Conscious deliberation or conscious adoption of the mode of attack has to be proved beyond reasonable doubt. For it is likewise an established
principle that the quantum of evidence to prove a person's being guilty of a crime is also required to prove treachery. The same degree of proof to dispel
any reasonable doubt is required before any conclusion may also be reached respecting the attendance of treachery, whether as qualifying or
aggravating, in a criminal case.
43
There is no such proof in this case.
There is no dispute that prior to the shooting, appellant Antonio and Tuadles spent several hours having fun playing "pusoy dos." The situation turned
ugly, however, when Tuadles could not pay to appellant Antonio his alleged winnings. An argument arose, with appellant Antonio and Tuadles standing
face to face three (3) feet away from each other, a fact attested to by the defense and even by the prosecution eyewitness himself.
Accordingly to SG Bobis, Tuadles and Antonio were arguing. Antonio even called out: "Sarge! Sarge! Sarge!" Just before the shooting, Bobis heard
Antonio saying: "Putang ina ka kasi." The argument precluded the presence of treachery. If Antonio had consciously adopted means and methods to kill
Tuadles, there was no reason to call for a Sergeant or any eyewitness for that matter.
To the point is our ruling in the case of People v. Alacar,
44
where we held that there was no treachery where the attempt to kill resulted from a verbal
altercation. More recently, in People v. Salvador, we pronounced that:
"There would be no treachery when the victim was placed on guard, such as when a heated argument preceded the attack, or when the victim was
standing face to face with his assailants and the initial assault could not have been unforseen."
45
(Underscoring Ours)
Even if it could be said that the attack was sudden, there would still be no treachery.1wphi1 In People v. Chua,
46
we reiterated our consistent view that:
"While the killing itself appears to have occurred on sudden impulse, it was preceded by acts of appellant showing hostility and a heated temper that
indicated an imminent attack and should have put the deceased on guard."
Thus, treachery could not be appreciated where the victim was forewarned and could have anticipated the aggression of the accused. Since the sudden
shooting of Tuadles was preceded by a heated verbal altercation between Tuadles and appellant Antonio, as admitted by both prosecution and defense,
then it cannot be concluded that the shooting was committed with treachery.
It is also clear that appellant Antonio did not set out or plan to kill Tuadles in the first place. His criminal act was an offshoot of their argument which
neither of them had foreseen. Hence, there was no treachery because treachery requires that the mode of attack must have been thought of by the
offender and must have sprung from an unforeseen occurrence.
47

In People v. Nitcha,
48
we held that:
"To establish treachery, the evidence must show that the accused made some preparation to kill the victim in such a manner as to ensure the execution
of the crime or to make it impossible or hard for the person attacked to defend himself. A killing done at the spur of the moment is not treacherous."
(Underscoring ours)
It was Antonio's sudden anger and heated passion which drove him to pull his gun and shoot Tuadles. Said passion, however, cannot co-exist with
treachery. In passion, the offender loses his reason and control. In treachery, on the other hand, the means employed is adopted consciously and
deliberately. One who, in the heat of passion, loses his reason and self-control, cannot consciously employ a particular means, method or form of attack
in the execution of the crime.
49
Thus, the killing of Tuadles by appellant Antonio was not attended by treachery.
That the treachery, which was alleged in the information and favorably considered by the trial court to elevate the killing to murder, was not proven by
convincing evidence
50
is advocated by the Solicitor General in the Appellee's Brief. He agreed with Appellant Antonio's contention on the matter:
On the basis of the evidence at hand, appellee is constrained to agree with this particular submission of Antonio. Antonio and Tuadles engaged in
"pusoy dos". In the beginning, they were heard laughing and kidding each other (nagtatawanan at nagkakantiyawan). Later, the banter turned into verbal
altercation.
Under the circumstances, Tuadles became aware of the incipient violence. Hence, Tuadles could have braced himself with the aggression of Antonio.
There is no treachery when the killing results from a verbal altercation or spat between the victim and the assailant such that the victim must have been
forewarned of the impending danger. In this case, Bobis testified that he saw Antonio and Tuadles facing each other before Antonio raised his hand and
shot Tuadles on the forehead. The proximate distance of three feet between Tuadles and Antonio immediately before the fatal shooting allowed and
gave Tuadles opportunity to defend himself.
51

Consequently, Antonio can only be convicted of the lesser crime of homicide under Article 249 of the Revised Penal code.
Having been found guilty of the crime of homicide, the penalty that should be imposed on appellant Antonio should be reduced to reclusion
temporal under Article 249 of the Revised Penal Code. There being one (1) mitigating circumstance of voluntary surrender, the penalty to be imposed
shall be the minimum period of reclusion temporal, that is, from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying
the Indeterminate Sentence Law, the minimum of the penalty to be imposed shall be the penalty next lower which isprision mayor in any of its
periods.
52
Therefore, appellant Alberto Antonio is hereby sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum.
Appellant Antonio challenges the award of compensatory and moral damages to the heirs of Tuadles, arguing that said award was unsupported by
adequate evidence. In arriving at the amount of P7,200,000.00 as compensatory damages, the trial court relied completely on the testimony of the
victim's widow, Suzette Tuadles, who stated that at the time of his death, Tuadles was earning P50,000.00 a month from his construction business.
Applying the formula laid down by this Court in the cases of Villa Rey Transit v. CA,
53
and People v. Quilaton,
54
the trial court arrived at the amount of
P7,200,000.00 as compensatory damages for loss of earning capacity. Appellant Antonio argues that the trial court cannot just rely on the sole testimony
of Suzette Tuadles, otherwise, it would be basing its computation on mere speculation, conjecture, or guess work.
In People v. Silvestre
55
and People v. Verde,
56
we held that the absence of documentary evidence to support the prosecution's claim for damages for
loss of earning capacity of the deceased does not preclude recovery of said damages. There, we awarded damages for loss of earning capacity
computed on the basis of the testimonies of the victim's wives. This was reiterated in People v. Dizon,
57
where we held that:
"As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. In People vs. Verde (G. R. No.
119077, February 10, 1999), the non-presentation of documentary evidence to support the claim for damages for loss of earning capacity did not prevent
this Court from awarding said damages. The testimony of the victim's wife as to the earning capacity of her murdered husband, who was then 48 years
old and was earning P200.00 a day as a tricycle driver, sufficed to establish the basis for such an award. x x x As in People vs. Verde, the Court is
inclined to grant the claim for damages for loss of earning capacity despite the absence of documentary evidence." (Underscoring ours)
In the case at bar, however, the award for compensatory damages should be calculated as follows:
Net earning capacity (x) = life expectancy x gross annual income - living expenses
(50% of gross annual income)
x =
2(80-40)

3
x [P600,000.00 - 300,000.00]

= 26.67 x P300,000.00


= P8,001,000.00

Considering that moral damages may be awarded without proof of pecuniary loss, the Court shall take into account the circumstances obtaining in the
case and assess damages according to its discretion.
58
We agree with appellant Antonio that the trial court's award of moral damages was excessive.
While there is no hard and fast rule in the determination of what would be a fair amount of moral damages, each case must be governed by its own
peculiar circumstances.
59
And though moral damages are incapable of pecuniary estimation to compensate the claimants for actual injury, they are not
designed to enrich the complainants at the expense of the accused.
60

Applied to this case, we recognize that Tuadles was the sole support of his family and they will also be deprived of his love and companionship. No
amount of money could ever compensate for their loss. While the award of moral damages may help ease the emotional and psychological trauma that
they continue to suffer, this Court has not granted so large an amount as moral damages. Accordingly, we find that the amount of P3,000,000.00 granted
by the trial court in this case is excessive, and the same is therefore reduced to P500,000.00. Moreover, there being no aggravating circumstances
attendant in this case, the award of exemplary damages should also be deleted.
61

We now come to the errors assigned by appellant SPO4 Juanito M. Nieto. He argues that the trial court erred in convicting him as an accessory. The
trial court's grounds for finding him guilty are: (1) he failed to arrest appellant Antonio; and (2) he gave false information tending to deceive the
investigating authorities.
62

The Revised Penal Code in Article 19 defines an accessory as one who has knowledge of the commission of the crime, yet did not take part in its
commission as principal or accomplice, but took part in it subsequent to its commission by any of three modes: (1) profiting himself or assisting the
offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof in order to prevent
its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public
functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually
guilty of some other crime.
63

Under paragraph 3 of Article 19 of the Revised Penal Code, there are two (2) classes of accessories, one of which is a public officer who harbors,
conceals or assists in the escape of the principal. Such public officer must have acted with abuse of his public functions, and the crime committed by the
principal is any crime, provided it is not a light felony. Appellant SPO4 Nieto is one such public officer, and he abused his public function when he failed
to effect the immediate arrest of accused Antonio and to conduct a speedy investigation of the crime committed.
The evidence in the case at bar, insofar as appellant Nieto's culpability is concerned, shows that in the middle of the argument between appellant
Antonio and the deceased, Antonio called Nieto by shouting, "Sarge! Sarge!" Hearing this, SG Bobis woke Nieto up and the latter went upstairs.
Immediately thereafter, appellant Antonio shot Tuadles, and then ordered Nieto to get the scoresheet and the cards from the table, which Nieto did.
Antonio, Nieto and Bobis went downstairs. Antonio told guards Bobis and Ernesto Olac to go with them, and they all boarded Antonio's Mercedes Benz
van, including Nieto. They arrived at Antonio's residence in Greenmeadows Subdivision at around 11:30 o'clock in the morning. There, they had coffee
while Antonio made some telephone calls. Soon after, a certain Atty. Abaya arrived and talked to the two security guards, while Nieto was present. Nieto
then told Bobis that in his statement, he should say that the two of them, i.e., Bobis and Nieto, were seated outside the entrance of the Club when the
incident took place. At 5:00 o'clock in the afternoon, Nieto, Bobis and Olac returned to the Club. They waited outside until members of the San Juan
police, together with Mayor Jinggoy Estrada and Vice Mayor Philip Cezar, arrived at 6:00 o'clock in the evening. After the police investigated the scene,
they proceeded to the police station. There, Nieto reiterated his instruction to Bobis to say that the two of them were outside the club. While Bobis gave
his statement to the police, Nieto remained in front of him and dictated to him what he should answer to the questions of the police investigator.
64

The foregoing facts were culled from the testimony of SG Bobis. Appellant Nieto's actuations immediately after the commission of the crime demonstrate
his liability as an accessory. Being a police officer in the active service, he had the duty to arrest appellant Antonio after the latter committed a crime in
his presence, and which he himself witnessed. Unfortunately, he failed to do what was incumbent upon him to do. Instead, he rode with the offender to
the latter's house where they stayed for more than five (5) hours. In the early case of U. S. v. Yacat, et al., it was held:
65

It is, however, unquestionable that Pedro Ureta, who was the local president of the town of Cabiao at the time the crime was committed, has incurred
criminal liability. Abusing his public office, he refused to prosecute the crime of homicide and those guilty thereof, and thus made it possible for them to
escape, as the defendant Pedro Lising did in fact. This fact is sufficiently demonstrated in the records, and he has been unable to explain his conduct in
refusing to make an investigation of this serious occurrence, of which complaint was made to him, and consequently he should suffer a penalty two
degrees inferior to that designated by paragraph 2 of article 405 of the Code, by virtue of article 68 thereof.
Appellant Nieto knew of the commission of the crime. Right before the shooting, appellant Antonio called him and he immediately went upstairs. He saw
that appellant shot Tuadles. Despite this knowledge, he failed to arrest appellant and, instead, left the crime scene together with the latter. To this extent,
he assisted appellant Antonio in his escape.
66

Furthermore, as correctly found by the trial court, appellant Nieto provided false information to deceive the investigating authorities. He instructed Bobis
to answer falsely to the questions of the investigating officer, in order to make it appear that there were no eyewitnesses to the incident and thus make it
more difficult for the police to solve the crime.
Accordingly, the court a quo was correct in convicting appellant as an accessory to the crime, and he should be sentenced to suffer the penalty
prescribed by law. Applying the Indeterminate Sentence Law, we impose on appellant Nieto the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years ofprison correccional, as maximum.
Finally, we come to appellant SPO1 Honorio Cartalla, Jr.'s appeal. After carefully reviewing the facts and issues raised therein, we find that the trial court
erred in finding said appellant guilty as an accessory.
The trial court's sole reason for convicting appellant SPO1 Cartalla, Jr. was his failure to produce the laser sight of the gun as evidence during the trial.
However, such omission does not amount to concealing or destroying the body of the crime or effects or instruments thereof to prevent its discovery.
The laser sight had been surrendered to the police authorities so there was no more need for discovery. Its loss thereafter does not make appellant
SPO1 Cartalla, Jr. an accessory. At most, as custodian thereof, he may be made answerable administratively.
In his testimony, he made clear that the loss was not intentional. He further stated:
Q Finally, Mr. Cartalla, what can you say about the charge against you as alleged in the information that you tried to conceal or destroy the effects or
body of the crime to prevent its discovery?
A It's not true, sir.
Q Why?
A Because I did not conceal anything, I did not destroy anything on the body of the crime and as far as I know, I did all my job as investigator and I
worked for it up to the wee hours of the morning up to the next morning, I still did it and I gathered evidence and I submitted it to the Crime Laboratory
and even when at the time, I have been hearing that I will not be the one who will investigate, they got it from me without proper notice, that they will take
over the investigation, I still did my job, and on the fifth, I was asked by Prosecutor Llorente to retrieve the slug and what I did was even the investigation
is not with me, I still did it, I still went to the IBC and I still worked hard, I even remember
Atty. Flaminiano
We want to make of record that the witness is now in tears at this moment.
COURT
Continue.
A The companion of Inspector de Leon and PO2 Rojas even said that this policeman is very hardworking, even the investigation is not with him
anymore, but still, he's working and I answered him, whatever, whatever they will charge to me, maybe it's just their job and so, I will also do my job.
Because as far as I know, I will not be implicated because I have not done anything, I have not done the charges that they filed against me, I was
surprised when I was given a confirmation that I was an accessory that is why my youngest child even told me "kala ko Papa, Mabait ka?" and I told him
that it's not true. For me, I have not done anything like that.
Atty. Fernandez
That's all for the witness, your Honor.
COURT
The way I look at your case, you are indicted here as an accessory because according to one of the witnesses, the gun together with the laser sight was
handled to you and when that gun reached Crame, the laser sight was no longer there, answer me, what happened?
A The truth, your Honor, is, when the gun was submitted to me by Inspector Cabrera, the laser sight was there, I immediately made the transmittal for
the laboratory and I described what is there, together with the laser and after that, I placed it in a brown envelope, I placed it in my drawer. On the
second day, I was really busy on that day because I was the only one. I was asking for assistance because I would go out, I will investigate and then I
just found out when I was about to submit the laser to the laboratory, I gave the envelope together with the transmittal and when it was being received,
he checked it and he said "Sgt. Where is the laser sight?" and I said "it's there, attached." And he said "please look at it."
COURT
Who told you that?
A The person who received, your Honor.
COURT
But in your transmittal, you wrote there that there was a laser?
A Yes, your Honor. When I saw the envelope, there was no laser, I was planning to go back right away but I just said, "okay, I will just cross it" out and I
did not erase because I want that I will not hide anything. It has happened because maybe somebody is interested or I might have left in my drawer.
Because I will not hide it. That's why I did not sno-pake it and I just crossed it out so it can be read together with my initial and when I came back, I
asked them who touched my things.
COURT
What answer did you get?
A There was no answer. Nobody was answering me, nobody was talking.
67

From the foregoing, it is clear that appellant SPO1 Cartalla, Jr. did not intentionally conceal or destroy the laser sight, and the prosecution failed to prove
that he did so with intent to derail the prosecution of the principal accused. On the other hand, while the laser sight was an accessory device attached to
the gun, it was not essential to the commission, investigation and prosecution of the crime. The gun itself, which was the instrument of the crime, was
surrendered to the authorities and presented as evidence in court. The failure of appellant SPO1 Cartalla, Jr. to present the laser sight as part of the
evidence did not in any way affect the outcome of the trial, much less prevent the discovery of the crime. Furthermore, there is no showing that appellant
SPO1 Cartalla, Jr. profited by the non-presentation of the laser sight.
Thus, under the definition of an accessory under the Revised Penal Code and jurisprudence, appellant Cartalla, Jr.'s omission does not make him liable
as an accessory to the crime committed by appellant Antonio. Even the Solicitor General submits that there are no grounds to convict appellant Cartalla,
to wit:
At the time the laser sight was turned over to Cartalla, the crime or its corpus delicti had been discovered. Hence, the loss of the laser sight could not
have prevented the discovery of the crime. The essential instrument of the crime, namely, a caliber .9 mm Beretta Model 92F with serial number BER-
041965-7 and black magazine had been preserved and presented as evidence.
Neither could Cartalla be said to have profited with the non-presentation of the laser sight as this was not proved by the prosecution. Either way,
concealing or profiting, there is no convicting motive for Cartalla to have so committed. More so, as Cartalla was the investigating officer on the case.
It is submitted that the non-production of the laser sight by Cartalla did not make him an accessory to the crime committed by Antonio, although he may
be administratively liable for the loss of a part of the evidence for the prosecution in this case.
68

WHEREFORE, in view of all the foregoing, the appealed Decision in Criminal Case No. 111232-H is hereby MODIFIED. Accused-appellant Alberto
"Ambet" Antonio is found GUILTY beyond reasonable doubt of the crime of HOMICIDE and is correspondingly sentenced to suffer the indeterminate
penalty of ten (10) years and one (1) day of prision mayor, as minimum to fourteen (14) years and eight (8) months of reclusion temporal, as maximum.
Accused-appellant Juanito Nieto y Nemer is likewise found GUILTY beyond reasonable doubt as accessory to the crime of HOMICIDE, and is
correspondingly sentenced to suffer the indeterminate penalty of six (6) months ofarresto mayor, as minimum, to four (4) years of prision correccional, as
maximum.
Accused-appellant Antonio is likewise ordered to pay to the heirs of Arnulfo B. Tuadles the following sums:
(1) P50,000.00 as indemnity for the death of Arnulfo B. Tuadles;
(2) P226,298.36 as actual damages;
(3) P8,001,000.00 as compensatory damages for loss of earning capacity;
(4) P500,000.00 as moral damages; and
(5) Costs.
For failure to prove accused-appellant SPO1 Honorio Cartalla, Jr.'s guilt beyond reasonable doubt as accessory to the crime, he is ACQUITTED and
absolved of all liability, both criminal or civil.
In case of insolvency of appellant Alberto S. Antonio @ "Ambet", appellant Juanito Nieto y Nemer shall be liable to pay one-half (1/2) of the above-
adjudicated sums or the amount of P4,388,649.18 unto the said heirs of Arnulfo B. Tuadles.
In all other respects, the judgment of the trial court is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J. (Chairman), joins Justice Puno in his concurring & dissenting opinion.
Puno, J., see concurring & dissenting opinion.
Kapunan, and Pardo, JJ., concur.










Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No.134847 December 6, 2000
PEOPLE OF THE PHILIPPINES, plaintiff- appellee,
vs.
RUBY MARIANO y LARA and RUTH MARIANO y LARA, accused-appellants.
D E C I S I O N
PER CURIAM:
Heinous crimes are grievous, odious and hateful offenses which, by reason of their inherent wickedness, viciousness, atrocity and perversity, are
repugnant to the common standards and norms of decency and morality in a just, civilized and ordered society.
1
To this genre belong the acts charged in
the instant case - a bizarre and nauseating tale of outrageous cruelty and brutality. The Court is now called upon to determine whether the accused are
responsible therefor.
Driven by grinding poverty in her home province and lured by the prospect of a lucrative employment in the big city, Michelle Priol, then only sixteen (16),
left home for Manila in January 1996 to work as a domestic help. Soon enough Michelle found herself hired at the household of the sisters Ruth Mariano
and Ruby Mariano in Bambang, Pasig City.
Jenny Priol, Michelle's older sister, testified that she often visited Michelle at the Mariano.residence. However, whenever she would visit Michelle, she
and her sister could not freely talk as Ruth and Ruby were always hovering about.
2
Apparently unhappy with the manner she was allowed to visit
Michelle - they being constantly watched by the Mariano sisters and denied their privacy - Jenny never went to her sister again after her last visit in
November 1996.
3
Sometime afterwards, Ruth and Ruby brought Michelle to her sister Jenny to complain to her that their rice cooker no longer
functioned and heaped the blame on Michelle. On that occasion Jenny noticed that Michelle's hair was unevenly cut to the scalp. When asked what
happened, Michelle told her that it was Ruby who gave her the ugly haircut.
4
Concerned with the condition of her sister, Jenny confronted Ruby. But the
latter angrily replied: "Why are you so bold to ask me that question; why don't you ask your sister!"
5
Jenny then told Ruby that she was going to take her
sister back from them but the furious Ruby hurriedly left with Ruth, taking Michelle with them. That was the last time Jenny saw her younger sister alive.
On 17 August 1997 at around 6:00 o'clock in the evening, SPO2 Edgardo Hernandez of the Pasig Police Station received an anonymous call reporting
that a woman was seen in Bambang, Pasig City, carrying a rectangular box with a human leg protruding. The caller further informed SPO2 Hernandez
that the woman then placed the box inside the compartment of a car bearing plate number UPR-561.
6
On the basis of this information SPO2 Hernandez
together with SPO1 Ruben Fidelino immediately conducted a "stake-out and surveillance operation" in the vicinity of Bambang as reported. After a
couple of minutes, the police officers spotted two (2) women boarding a car with the reported plate number. They turned out to be accused-appellants
Ruth Mariano y Lara and Ruby Mariano y Lara.
7
The vehicle was owned and driven by Ruby. The law enforcers, riding in their patrol car with SPO1
Fidelino on the wheels, followed the vehicle. But the women, perhaps sensing that they were being trailed, drove fast. Alarmed by the suspects' reaction
to their presence, the policemen sounded their siren. After a brief chase, the officers overtook the suspects' vehicle and blocked its path. SPO2
Hernandez and SPO1 Fidelino alighted, from their patrol car and introduced themselves as police officers. They ordered Ruth and Ruby to alight from
their vehicle.
8

The lawmen then announced that they would be conducting a visual search of the luggage compartment of the vehicle. Initially, Ruby refused saying that
only dirty clothes were in the compartment but later relented the police officers insisted.
9
Upon opening the compartment, SPO2 Hernandez was greeted
by a putrid odor emanating from a decomposing body inside the box. Ruth and Ruby identified the body as that of their maid Michelle Priol.
10
Ruth and
Ruby were then arrested and taken to the Pasig Police Station. Their vehicle was driven to the station by SPO2 Hernandez.
Senior Police Inspector Emmanuel L. Aranas, Medico-legal Officer of the PNP Crime laboratory, conducted an autopsy on the cadaver of Michelle. The
result was appalling and beyond belief. The body was found to be poorly nourished and already in a state of decomposition. The skin and underlying soft
tissues on the chest appeared to have been gnawed by rats apparently attracted to the exposed scalded flesh resulting from the repeated splashing of
boiling water, and that the victim had died two (2) to three (3) days prior to the autopsy. The autopsy findings were: (a) healed and healing lacerated
wounds on the upper lip caused by hard blunt object or fist blows healed lacerated wound on the lower lip; (c) multiple lacerated swelling wounds on the
right and left ear; (d) two (2) healing wounds on the left illiac region; and, (e) the cause of death was multiple traumatic wounds, and first and second
degree scalding burns on the head, trunk, upper and lower extremeties comprising about 72% of the body surface, caused by hot liquid within the range
of boiling point inflicted at various times prior to the death of the victim.
11

With the foregoing findings, Ruth and Ruby were charged with murder. Ruth denied the charge claiming that the victim "died because she got sick, and
not because I mauled her."
12
Nevertheless, by her own narration and admission during the trial, Ruth described in lurid details what really happened to
Michelle. According to Ruth, Michelle was kind, industrious and respectful at first. However, sometime November 1996 she and her sister Ruby caught
Michelle stealing money and jewelry from their bedroom. Thus, they brought her to the police but later desisted from prosecuting Michelle when she
pleaded for a second chance and promised that she would not do it again.
13
After that incident, Michelle's attitude changed completely. Ruth claimed that
she often caught her stealing money from them and destroying the appliances whenever she cleaned the house, and that whenever she scolded
Michelle she would answer back, triggering a fight between them.
14

Ruth confessed in her testimony that she doused boiling water on Michelle several times whenever she was angry.
15
In those occasions, according to
her, they were quarrelling and Michelle would fight back.
16
Ruth further said that only by pouring boiling water on Michelle could she (Ruth) "pacify her
(and stop her) from fighting back."
17

Ruth likewise admitted having pulled Michelle's hair and banged her head (inuumpog ang ulo),
18
and that in the month of July 1997 alone they fought at
least six (6) times. She added that she was remorseful afterwards for what she had done and treated Michelle's seared flesh with antibiotics and washed
her wounds with guava leaves. As if explaining the fresh-looking wounds on the body of Michelle, Ruth said that Michelle sometimes scratched her
wounds thereby removing the scabs and exposing the fresh wounds. But by August 1997 Michelle lost her appetite and her condition started to
deteriorate. Not long thereafter, she died. Ruth further testified, that when she was about to wake Michelle up in the morning of 17 August 1997 she
discovered Michelle's body already bent and flexed forward (nakabaluktot) lying in bed, lifeless.
19
So she panicked and hurriedly placed the body in a
box, which she then loaded inside the luggage compartment of Ruby's car. According to Ruth, she was afraid that her 74-year old mother who was
suffering from a heart ailment would see the body, thus she concealed the corpse in the trunk of the vehicle.
20
When Ruby arrived that evening, Ruth
met her at the gate of their house and told her that she had a problem. Ruth then asked Ruby to drive and promised to tell her about it on the way. It was
then that they were apprehended by elements of the Pasig Police force.
On 22 June 1998 Ruth arid Ruby were convicted of murder by the trial court. Accordingly, Ruth was sentenced to death while Ruby was found guilty as
an accomplice and sentenced to reclusion temporal. The trial court explained its Decision -
With such evidence on record, there is no doubt that Ruth was responsible for the death of Michelle Priol and the killing was aggravated with (sic) cruelty
making it a crime of murder. Splashing boiling water six (6) times a month, even when the previous injuries were not yet healed, is cruelty of the highest
order. Splashing boiling water while the previous scalding burns were not yet healed was deliberately done. Such act was inhumanly augmenting the
suffering of the victim. Ruth Mariano admitted this in her oral testimony and in her counter-affidavit x x x x therefore, Ruth Mariano should be held to
answer for the crime of murder as defined and penalized under Article 248 of the Revised Penal Code x x x x
As to the liability of Ruby Mariano, the evidence appears to be circumstantial. [She] knew of the death of Michelle Priol prior to the time her body was put
in a box and loaded in the car x x x x she [was] living with Ruth in the same apartment and as such, that place is not too big not to see or know that a
member of the household is (sic) dead.
Moreover, as admitted by Ruth Mariano in her testimony in Court that she poured boiling water on Michelle Priol six (6) times a month. That alone must
have been known to Ruby Mariano. For her failure to prevent Ruth from pouring boiling water on Michelle Priol, which according to Dr. Aranas was the
cause of Priol's death, that constitute cooperation on her part in killing Michelle Priol.
All the foregoing circumstances taken together constitute violation of Article 18 of the Revised Penal Code, hence, Ruby Mariano is liable as an
accomplice.
Considering that the act of putting the cadaver of victim Michelle Priol in a box and loading it in the baggage compartment of a car is an outraging act, or,
an act of scoffing at her person or corpse which is an aggravating circumstance coupled with evident premeditation and taking advantage of superior
strength, the fact that the accused Ruth Mariano is a big buxom matured woman while the victim Priol was a slim teenager, such aggravating
circumstances, and there being no mitigating circumstance, the imposition of the death penalty would be proper as against accused Ruth Mariano y
Lara.
21

Hence, this automatic review of the death penalty imposed by the trial court.
The errors assigned by accused-appellants in their brief may be subsumed under the basic contention that the trial court erred in convicting them as
principal and accomplice to the crime of murder notwithstanding the fact that the prosecution evidence was grossly insufficient to prove their guilt beyond
reasonable doubt.
Aware that the life of a human being is here at stake, we have carefully examined every piece of evidence on record as well as the arguments raised by
accused-appellants in their pleadings no matter how specious and ridiculous they may appear to be, but we fail to find any compelling reason to overturn
the findings of fact and conclusions of the court a quo, except as may be stated hereunder.
First, on the criminal liability of Ruth Mariano. The defense at once crumbles in the face of accused-appellant's own admission in open court that she
employed violence on Michelle, dousing her with boiling water and battering her into insensibility in the course of their supposed quarrels. She virtually
painted in her testimony a harrowing portrait of the barbaric episode culminating in the death of the victim, thus -
A: Whenever I scolded her, she became angry and told me that I'm (sic) not the one who is (sic) paying her salary and I am (sic) "masungit."
Q: And what else transpired, if any?
A: We have (sic) exchanges of word and that started our quarrel.
Q: When you said quarrel, what do you mean quarrel, just by exchanging words or what? You have any physical contact?
A: We were engaged in physical fight.
Q: What else happened, if any?
A: If she fought back and I'm (sic) being hurt and if I'm (sic) already angry, I splashed (nasasabuyan) her with boiling water x x x x
22

Q: When for the first time did you have any occasion of splashing hot water on the person of Priol?
A: July 1997.
Q: When was the second time?
A: I cannot remember.
Q: Also in the month of July?
A: Every time she fought against me.
Q: When was the third time?
A: I cannot remember anymore.
Q: More or less, how many times did you splash her with hot water?
COURT: Hot or boiling water?
PROSECUTOR LEONARDO: Boiling water.
A: Twice (2x) x x x x
23

Q: You splashed her frontally?
A: Yes, Ma'am.
Q: Facing each other?
A: Yes, Ma'am xxxx
Q: She does not run away when you saw her holding the airpot?
A: When I splashed her she told me, that is (sic) enough, I will (sic) not fight anymore.
24

Q: Just answer my question.
A: No, your honor.
Q: She waits (sic) until you poured the boiling water on her?
A: Yes, your honor.
Q: And when she tried to pull your hair, what do you do?
A: I pulled her hair also and sometimes banged (inuumpog) her head.
25

Accused-appellant's brutality was confirmed by Dr. Emmanuel L. Aranas who concluded in his autopsy report that the cause of death of the victim was
"multiple traumatic wounds, and first and second degree scalding burns covering 72% of the body surface," which were the very same injuries accused-
appellant admitted she had inflicted on the victim. Dr. Aranas testified -
Q: And after conducting the examination, what was the cause of death that you found?
A: Well, the cause of death Ma'am, is the multiple traumatic injuries, as well as the scalding burns, first to second degree recovering 72% of the surface
area.
Q: Combined together?
A: Yes, your honor. All these are contributory to the death of the deceased.
26

These medical findings when combined with accused-appellant's judicial admission, certainly wove a tight web of evidence as to accused-appellant's
culpability. They clearly established her guilt to a moral certainty, for which she could not escape punishment.
Accused-appellant however, by way of avoidance, maintains that she did not kill the victim, insisting that the latter "died because she got sick, and not
because I mauled her."
The Court is not persuaded. It is evident that the death of the victim was the direct, natural and logical consequence of the injuries she sustained in the
hands of accused-appellant Ruth Mariano. The wounds inflicted on the victim were of extremely dangerous nature, i.e., calculated to destroy life,
although they did not immediately result in the victim's death. A person is to be held to contemplate and be responsible for the natural consequences of
her own acts. If she inflicts wounds of such gravity as to put the life of the victim in jeopardy, and death follows as a consequence of her felonious and
wicked acts, it does not alter the nature nor diminish the criminality of the acts to prove that other causes cooperated in producing the fatal result. Es que
es causa de la causa es causa del mal causado. He who is the cause of the cause is the cause of the evil caused.
Accused-appellant further asserts that (a) her acts of'pouring boiling water on Michelle were accidental; (b) she was unaware of the effects or danger of
pouring boiling water on a human being; and, (c) she treated the wounds and burns of the victim with antibiotics (Bactrim Forte) and washed it with
guava leaves until she got well.
The artificiality of these assertions is self-evident. They are but fabrications to explain away the numerous mortal wounds of the victim. As to the alleged
accidental pouring of boiling water, the physical evidence shows that the victim suffered first and second degree scalding burns covering 72% of the
body surface, caused by accused-appellant's repeated acts of pouring boiling water on the victim while they were allegedly embroiled in a quarrel.
Clearly, the sheer number, and severe nature and extent of the wounds suffered by the victim attest to their deliberate infliction.
As regards her claim that she was unaware of the effects or danger of pouring boiling water on a human being, accused-appellant must have seen how
the boiling water she poured the first time on Michelle seered the flesh of the victim, permanently disfiguring her body even as she agonized in pain.
Accused-appellant, who was thirty-four (34) years old then, was not shown to be a person of diminutive intelligence as not to realize the lethal effects
ofrepeatedly dousing boiling water on a human being. Neither can we attach any importance to her pretension that she administered antibiotics and
herbal medicine on the burns of Michelle until she recuperated, for it is contrary to the findings of Dr. Aranas who observed that there was no evidence of
medical intervention notwithstanding the character and number of the victim's injuries.
27

To compound accused-appellant Ruth Mariano's woes, her confessed act of putting the lifeless body of Michelle in a box and loading it in the luggage
compartment of a car is obviously inconsistent with her profession of innocence. As observed by the Solicitor General, to which we agree, "an innocent
person would have lost no time in reporting to the police her discovery, right in her own house, of the death of a household member instead of taking
pains in concealing it."
28

Quite obviously, accused appellant exceeded the limits of her credibility, as she was plainly incredible. Her attempts to lessen the impression of sadism
and viciousness of her crime only assault the intelligence of this Court. We are not that naive and gullible as the defense perhaps thought.
Second, on the complicity of accused-appellant Ruby Mariano. There is no solid evidence on record effectively linking accused-appellant Ruby Mariano
to the gruesome killing of Michelle Priol. There is no showing that she ever laid hands on the deceased nor was she ever seen helping her sister Ruth on
those occasions when Ruth reportedly manhandled Michelle, nor was there any positive act of assent or cooperation on her part with Ruth ever
satisfactorily established or proved by the prosecution. All that can be gathered from evidence are: (a) Ruth and Ruby were staying with Michelle in the
same apartment, together with their 74-year old mother and Ruby's children; (b) the victim had been dead for two (2) to three (3) days when placed in
the car; and, (c) Ruby owns the vehicle where the body of the victim was concealed and was in fact driving the vehicle when the police intercepted them
and found the body of Michelle in the trunk of their vehicle. While these circumstances strongly indicate that Ruby had knowledge of what her sister Ruth
did to Michelle, they are too insufficient to support a finding that Ruby had something to do with the crime so that she should likewise be answerable.
With her nominal role, we cannot conscientiously declare that Ruby was a principal or even an accomplice in the crime. The presumption of innocence in
her favor has not been overcome by proof beyond reasonable doubt.
We cannot agree with the Solicitor General that Ruby should have been convicted as an accessory after the fact -
x x x x since her act of driving the car where the corpse of Michelle was hidden, her resistance to stop the car when chased by the police and to
immediately open the luggage compartment as requested by the police, her act of lying to the police by claiming that the box in the compartment
contained only dirty clothes, and her refusal to open said box sufficiently indicate knowledge of the crime and assistance to Ruth Mariano in concealing
the corpus delicti to prevent its discovery.
Accused-appellant Ruby Mariano is the sister of accused-appellant Ruth Mariano. As such, their relationship exempts appellant Ruby Mariano from
criminal liability under Art. 20 of The Revised Penal Code -
Art. 20. Accessories who are exempt from criminal liability. - The penalties prescribed for accessories shall not be imposed upon those who are such
with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same
degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the preceding article (underscoring supplied).
The reason for exemption is obvious; it is based on ties of blood and the preservation of the cleanliness of one's name, which compels one to conceal
crimes committed by relatives so near as those mentioned in the above-quoted article. This Court is thus mandated by law to acquit accused-appellant
Ruby Mariano.
Third, the crime committed by accused-appellant Ruth Mariano was evidently murder, the killing of the victim being qualified by cruelty. The autopsy
report of Dr. Aranas abundantly shows irrefutable evidence of cruelty -
FINDINGS: Poorly nourished, fairly developed female cadaver, in the beginning stage of decomposition. Embalmed. The skin and underlying soft tissues
on the chest gnawed by small animals. HEAD, TRUNK AND EXTREMITIES: Healed lacerated wound, upper lip, measuring 1 by 0.7 cm., 1.5 cm., right
of the anterior midline; Healing lacerated wound, upper lip, measuring .07 by .3 cm., left of the anterior midline; Healed lacerated wound, non-coaptated,
lower lip, measuring 1 by 1 cm., just left of the anterior midline; Multiple lacerated wounds, right ear, with multiple contusions and swelling; Multiple
lacerated wounds, left ear, with multiple contusions and swelling.
CONCLUSION: Cause of death is multiple traumatic injuries and scalding burns, 1st and 2nd degrees, 72% of the body surface area.
The wounds and scalding burns listed in the autopsy report were inflicted at different times but did not immediately result in death, as some of the
wounds were still in the process of healing at the time of the autopsy. This clearly suggests that the victim was still alive even after those injuries were
sadistically and inhumanly inflicted on her. The nature and extent of those injuries undoubtedly caused terrible sufferings on the victim for a long period
of time resulting in a slow, painful death. Explaining his medical findings on the cadaver of the victim, Dr. Aranas testified -
Q: In such a situation where there are several injuries, would you tell the Court how long after the infliction of those injuries will the victim die?
A: Well, your Honor, there is evidence of a slow regression of the physical condition of the deceased, so, the moment that injuries were inflicted on her a
few days or may be a week prior to death, there is already a regression of the body of the deceased considering the presence or the observation of a
collapsed lung and the presence of yellowish fluid on the lungs. This only means that there was already a slow regression on the physical condition.
COURT: In a layman's language, what do you mean by slow regression?
A: Well, your Honor, there is an evidence of the process of weakening of the system of the body and slowing down the function of the vital organs of the
deceased.
Q: In other words, you would like to tell the Court that the victim has suffered for a long time before she actually died?
A: Precisely, your Honor.
Q: Can you tell the Court, with the injuries that you have found in the body of the victim, how long did that victim suffer before she died?
A: Well, your Honor, there are healed wounds and these would have been inflicted a week or more prior to the death; and there are healing wounds and
these were inflicted within a week prior to the death; there were fresh wounds which were inflicted may be a few hours or day prior to the death. So, she
has been suffering for quite a long time prior to the death.
29

Indeed, to the trained eye of medico-legal specialists, the inanimate remains of the dead give an eloquent testimony of their own, and that is true even of
the young victim, Michelle, who in life could not have been as articulate. The test in appreciating cruelty, as a qualifying circumstance is whether the
accused deliberately augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victim's sufferings or
outrage, or scoffed at his person or corpse.
30
The prosecution evidence surmounted this test beyond any peradventure of doubt.
We also find that the circumstance of abuse of superior strength aggravated the killing of the victim.1wphi1 There was gross physical disparity between
the age, built and strength of accused-appellant Ruth Mariano viz-a-viz the victim Michelle. The former is a big and burly matured woman in her thirties,
several inches taller than the victim, and "who could subdue her [victim] even without a weapon."
31
While the latter was merely a teenager, five (5) feet
tall, slim and poorly nourished and weighed less than 100 pounds according to Dr. Aranas.
32
The records also show that accused-appellant Ruth
Mariano pulled the victim's hair, banged her head, and repeatedly doused boiling water on her. On those occasions, the victim was not shown to be
equipped with reasonable means of defense. Abuse of superior strength depends upon the age, size and strength of the parties. To take advantage of
superior strength is to purposely use excessive force out of proportion to the means of defense available to the person attacked.
33

Abuse of superior strength is a generic aggravating circumstance which is capable of being proved and taken into consideration in imposing the
sentence, even if it was not alleged in the information. The evidence of its existence merely forms part of the proof of the actual commission of the
offense and does not violate the constitutional right of the accused to be informed of the nature and cause of the accusation against him.
We are not in accord with the trial court, however, in appreciating evident premeditation as an aggravating circumstance. The essential elements of
evident premeditation are: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the culprit had clung to his
determination; and, (c) a sufficient interval of time between the determination and execution of the crime to allow him to reflect upon the consequences
of his act.
34
These requisites must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as an aggravating
circumstance.
35
In the instant case, the records are bereft of any evidence to show the nature of accused-appellant Ruth Mariano's planning and
preparation to slay her victim, or how much time had elapsed before it was carried out. Evident premeditation must be based on external facts which are
evident, not merely suspected, and which indicate deliberate planning. Mere presumptions and inferences, no matter how logical or probable they might
be, would not be enough to sustain a finding of this aggravating circumstance.
36

Article 248 of The Revised Penal Code, as amended by Sec. 6, RA 7659, punishes murder with reclusion perpetuato death. The presence of the
aggravating circumstance of abuse of superior strength warrants the imposition of the higher penalty of death on accused-appellant Ruth Mariano in
accordance with Art. 63 of The Revised Penal Code.
37
In addition, the same accused-appellant should be made to pay the heirs of the victim P50,000.00
for civil indemnity, comformably with prevailing jurisprudence,
38
P35,000.00 for actual damages, and P300,000.00 for moral damages. Moreover, since
there is present an aggravating circumstance, and considering the peculiar circumstances of this case, an award of P50,000.00 for exemplary damages
is proper.
Finally, we cannot write finis to this case without expressing our abhorrence to the manner by which the crime was perpetrated. Accused-appellant Ruth
Mariano's atrocious character, which transfixes the soul with such horror and revulsion, truly merits the severest condemnation of this Court. By her
savagery and ruthlessness - by a woman to another woman - she forfeits her rightful place in civilized society. Michelle, even in death, is entitled no less
to the full measure of justice as any other victim of a gruesome and senseless killing.
WHEREFORE, the Decision of the court a quo of 22 June 1998 is MODIFIED. Accused-appellant Ruth Mariano is found guilty beyond reasonable doubt
of the crime of MURDER qualified by extreme cruelty and is sentenced to DEATH. She is further ORDERED to pay the heirs of victim Michelle Priol y
Beronio the following amounts: P50,000.00 for civil indemnity, P35,000.00 for actual damages, P300,000.00 for moral damages, another P50,000.00 for
exemplary damages, and to pay the costs.
As for accused-appellant Ruby Mariano, the Court finds the evidence insufficient to establish beyond reasonable doubt her guilt as an accomplice in the
commission of the said crime. Neither can she be held liable as an accessory after the fact, as she is exempt from criminal liability by reason of her
relationship with her co-accused pursuant to Art. 20 of The Revised Penal Code. Consequently, she is ACQUITTED of the crime charged and her
immediate release from custody is ordered unless she is being detained for some other lawful cause. The Director of Prisons is DIRECTED to report to
this Court the action taken hereon within five (5) days from receipt hereof.
Four (4) members of the Court, although maintaining their adherence to the view that RA 7659, insofar as it prescribes the death penalty, is
unconstitutional, nevertheless, bow to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should
accordingly be imposed. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon the finality of this Decision, let the
records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ., concur.