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EN BANC

G.R. No. L-18924


October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. WONG CHENG (alias WONG
CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the
demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having
illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila
Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case.
The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be
erroneous according as said court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved,
committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule,
according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country
within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory;
and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated
under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two
rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United
States on this matter are authority in the Philippines which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to
society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or
within the territorial waters of any other country, but when she came within three miles of a line drawn from the
headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.;
Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign
subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common
Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or
those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the
public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local
jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that
felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case
in the regular way the consul has no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in
transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels
being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which
is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws
of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the
absence of an agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof,
we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed
belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United States of America, and all the territories of His Britanic
Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have
liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories
aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts
of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce;
and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and
security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1,
Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or
courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being
about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a
disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the
public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the AttorneyGeneral aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in
open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It
requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and
allow or solicit Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in
accordance with law, without special findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee, vs. LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried, kept, possessed and
had in his possession and control, 96 kilogrammes of opium," and that "he had been surprised in the act of selling 1,000 pesos
worth prepared opium."
The defense presented a demurrer based on two grounds, the second of which was the more than one crime was charged in the
complaint. The demurrer was sustained, as the court found that the complaint contained two charges, one, for the unlawful
possession of opium, and the other, for the unlawful sale of opium, and, consequence of that ruling, it ordered that the fiscal
should separated one charge from the other and file a complaint for each violation; this, the fiscal did, and this cause concerns
only the unlawful possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the
general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as August 19, 1909), several
persons, among them Messrs. Jacks and Milliron, chief of the department of the port of Cebu and internal-revenue agent of Cebu,
respectively, went abroad the steamship Erroll to inspect and search its cargo, and found, first in a cabin near the saloon, one sack
(Exhibit A) and afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium,
and the other, Exhibit B, the larger sack, also contained several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely and of his own will and accord
admitted that this sack, as well as the other referred to in Exhibit B and found in the cabin, belonged to him. The said defendant
also stated, freely and voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of selling them as
contraband in Mexico or Vera Cruz, and that, as his hold had already been searched several times for opium, he ordered two
other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute the corpus delicti.
Moreover, another lot of four cans of opium, marked, as Exhibit C, was the subject matter of investigation at the trial, and with
respect to which the chief of the department of the port of Cebu testified that they were found in the part of the ship where the
firemen habitually sleep, and that they were delivered to the first officer of the ship to be returned to the said firemen after the
vessel should have left the Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he had from
the Manila custom-house, were permitted to retain certain amounts of opium, always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this cause. With
regard to this the internal-revenue agent testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken to the office of the
governor to prove that the accused had opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale." But, with respect to
this answer, the chief of the department of customs had already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of opium and that the same
party knew that there was more opium on board the steamer, and the agent asked that the vessel be searched.
The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court only ordered that
the part thereof "that there was more opium, on board the vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C, contained opium and
were found on board the steamship Erroll, a vessel of English nationality, and that it was true that the defendant stated that these
sacks of opium were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the provincial fiscal, of a
Chinese interpreter (who afterwards was not needed, because the defendant spoke English), the warden of the jail, and four
guards, that the opium seized in the vessel had been bought by him in Hongkong, at three pesos for each round can and five pesos
for each one of the others, for the purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the
vessel arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to
sell an amount of the value of about P500; that the opium found in the room of the other two Chinamen prosecuted in another
cause, was his, and that he had left it in their stateroom to avoid its being found in his room, which had already been searched
many times; and that, according to the defendant, the contents of the large sack was 80 cans of opium, and of the small one, 49,
and the total number, 129.
It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it was bound for
Mexico, via the call ports of Manila and Cebu.
The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the same and the facts
concerned therein did not constitute a crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty of the
law be imposed upon the defendant, in view of the considerable amount of opium seized. The court ruled that it did not lack
jurisdiction, inasmuch as the crime had been committed within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional subsidiary imprisonment
in case of insolvency, though not to exceed one third of the principal penalty, and to the payment of the costs. It further ordered
the confiscation, in favor of the Insular Government, of the exhibits presented in the case, and that, in the event of an appeal
being taken or a bond given, or when the sentenced should have been served, the defendant be not released from custody, but
turned over to the customs authorities for the purpose of the fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made therein by the parties, it is found: That, although the mere
possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of
its own nationality, the same rule does not apply when the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the
land, with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court
established in that said place itself had competent jurisdiction, in the absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case, was considerable,
it does not appear that, on such account, the two penalties fixed by the law on the subject, should be imposed in the maximum
degree.
Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm in all other
respects the judgment appealed from, with the costs of this instance against the appellant. So ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
EN BANC
G.R. No. L-13005
October 10, 1917
THE UNITED STATES, plaintiff-appellee, vs. AH SING, defendant-appellant. Antonio Sanz for appellant. Acting AttorneyGeneral Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a violation of
section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, to pay a fine of P300 or to suffer
subsidiary imprisonment in case of insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China employed as a fireman on the steamship Shun
Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April 25, 1917, after a voyage direct from the
port of Saigon. The defendant bought eight cans of opium in Saigon, brought them on board the steamship Shun Chang, and had
them in his possession during the trip from Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917,
the authorities on making a search found the eight cans of opium above mentioned hidden in the ashes below the boiler of the
steamer's engine. The defendant confessed that he was the owner of this opium, and that he had purchased it in Saigon. He did
not confess, however, as to his purpose in buying the opium. He did not say that it was his intention to import the prohibited drug
into the Philippine Islands. No other evidence direct or indirect, to show that the intention of the accused was to import illegally
this opium into the Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands been proven?
Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there exists
inconsistently between the doctrines laid down in the two cases. However, neither decision is directly a precedent on the facts
before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the Chief Justice, it is
found
That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of
their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being

considered as an extension of its own nationality, the same rule does no apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the commission
of the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an agreement under an
international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the present instance is readily observable. In
the Look Chaw case, the charge case the illegal possession and sale of opium in the present case the charge as illegal
importation of opium; in the Look Chaw case the foreign vessel was in transit in the present case the foreign vessel was not in
transit; in the Look Chaw case the opium was landed from the vessel upon Philippine soil in the present case of United States
vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which resolution turned, was that in a prosecution based on the
illegal importation of opium or other prohibited drug, the Government must prove, or offer evidence sufficient to raise a
presumption, that the vessel from which the drug is discharged came into Philippine waters from a foreign country with the drug
on board. In the Jose case, the defendants were acquitted because it was not proved that the opium was imported from a foreign
country; in the present case there is no question but what the opium came from Saigon to Cebu. However, in the opinion in the
Jose case, we find the following which may be obiter dicta, but which at least is interesting as showing the view of the writer of
the opinion:
The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was not necessary that
the opium discharged or that it be taken from the ship. It was sufficient that the opium was brought into the waters of the
Philippine Islands on a boat destined for a Philippine port and which subsequently anchored in a port of the Philippine Islands
with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an examination of the
applicable provisions of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any person who shall unlawfully import
or bring any prohibited drug into the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of the
United States have held that the mere act of going into a port, without breaking bulk, is prima facie evidence of importation. (The
Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the making entry of goods at the custom house, but
merely the bringing them into port; and the importation is complete before entry of the Custom House. (U. S. vs. Lyman [U. S.],
26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any person
unlawfully imports or brings any prohibited drug into the Philippine Islands, when the prohibited drug is found under this
person's control on a vessel which has come direct from a foreign country and is within the jurisdictional limits of the Philippine
Islands. In such case, a person is guilty of illegal importation of the drug unless contrary circumstances exist or the defense
proves otherwise. Applied to the facts herein, it would be absurb to think that the accused was merely carrying opium back and
forth between Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible to conceive that the accused
needed so large an amount of opium for his personal use. No better explanation being possible, the logical deduction is that the
defendant intended this opium to be brought into the Philippine Islands. We accordingly find that there was illegal importation of
opium from a foreign country into the Philippine Islands. To anticipate any possible misunderstanding, let it be said that these
statements do not relate to foreign vessels in transit, a situation not present.
The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the sentence of the trial
court being within the limits provided by law, it results that the judgment must be affirmed with the costs of this instance against
the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
EN BANC
Adm. Case No. 3086
February 23, 1988
ALEXANDER PADILLA, complainant, vs. THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of
Pasay City Branch 113, respondent.
RESOLUTION
PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs, Alexander Padilla,
against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly erroneous decision due, at
the very least, to gross incompetence and gross ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of the
Philippines vs. Lo Chi Fai", acquitting said accused of the offense charged, i.e., smuggling of foreign currency out of the country.
Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987, reciting his
"commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of Manila on December 4, 1962,
until his appointment eventually as RTC Judge on February 18, 1983; that at in the reorganization of the judiciary after the
February 26, 1986 revolution, he was reappointed to his present position; that his length of service as prosecutor and judge is
"tangible proof that would negate the allegations of the petitioner" (should be complainant), whereas the latter did not last long in
the service for reasons only known to him; that the decision involved in the complaint was promulgated by respondent on
September 29, 1986, but the complaint against him was filed only on August 6, 1987, a clear indication of malice and ill-will of
the complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision, of which he submits a
copy (Annex A) as part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and that if
there are mistakes or errors in the questioned decision, they are committed in good faith. Accordingly, respondent prays for the
dismissal of the petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross ignorance of the law in
rendering the decision in question. A judge can not be held to account or answer, criminally, civilly or administratively, for an
erroneous decision rendered by him in good faith.
The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was caught by a Customs
guard at the Manila International Airport while attempting to smuggle foreign currency and foreign exchange instruments out of
the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM officers on July 9, 1986, while on board
Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying with him
foreign currency and foreign exchange instruments (380 pieces) amounting to US$ 355,349.57, in various currency
denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any authority as provided by
law. At the time the accused was apprehended, he was able to exhibit two currency declarations which he was supposed to have
accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048, dated May 4, 1986 for
US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen
6,600,000.00.
An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6, Central Bank Circular No. 960,
as follows:
That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there wilfully, unlawfully and feloniously attempt to
take out of the Philippines through the Manila International Airport the following foreign currencies in cash and in checks:
Japanese Yen Y 32,800,000.00
Hongkong Dollar HK$ 15,630.00
(in checks)
Swiss Franc SW. FR 6,9000.00
HFL Guilder HFL 430.00
Australian Dollar A$ 7,750.00
Australian Dollar A$ 17,425.00
French Franc F/6,860.00
British Pound 700.00
Singapore Dollar S$ 9,945.00
US Dollar US$ 73,950.00
US Dollar US$ 17,630.00
Deutsche Marck DM 18,595.00
English Pound 5,318.00
Canadian Dollar C$ 990.00
Canadian Dollar CS 13,330.00
Malaysian Dollar M$. 14,760.00
without authority from the Central Bank.
Contrary to Law.
The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113, presided by herein
respondent Judge Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6.
Export, import of foreign exchange; exceptions. No person shall take out or transmit or attempt to take out or
transmit foreign exchange in any form, out of the Philippines directly, through other persons, through the mails or through
international carriers except when specifically authorized by the Central Bank or allowed under existing international agreements
or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in amounts not exceeding such
amounts of foreign exchange brought in by them. For purposes of establishing the amount of foreign exchange brought in or out
of the Philippines, tourists and non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in
other foreign currencies shall declare their foreign exchange in the form prescribed by the Central Bank at points of entries upon
arrival in the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:
Section 1. Blackmarketing of Foreign Exchange . That any person who shall engage in the trading or purchase and sale of
foreign currency in violation of existing laws or rules and regulations of the Central Bank shall be guilty of the crime of
blackmarketing of foreign exchange and shall suffer the penalty of reclusion temporal, (minimum of 12 years and I day and
maximum of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos.
At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the garment business,
in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines 9 to 1 0 times, although the only
dates he could remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his coming to the
Philippines was to invest in business in the Philippines and also to play in the casino; that he had a group of business associates
who decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze
Kai Kwan, who had their own businesses in Japan and Hongkong; that when he came to the Philippines on April 2,1986, he
brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank representative refused to
accept his declaration, until he could get a confirmation as to the source of the money, for which reason he contacted his bank in
Hongkong and a telex was sent to him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00
Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when
he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as per their agreement to invest in some
business with him in the Philippines, started putting their money for this purpose in a common fund, hence, every time anyone of
them came to the Philippines, they would declare the money they were bringing in, and all declarations were handed to and kept
by him; these currency declarations were presented at the trial as exhibits for the defense. When asked by the court why he did
not present all of these declarations when he was apprehended at the airport, his answer was that he was not asked to present the
declaration papers of his associates, and besides, he does not understand English and he was not told to do so. He also testified on
cross-examination that the reason he was going back to Hongkong bringing with him all the money intended to be invested in the
Philippines was because of the fear of his group that the "revolution" taking place in Manila might become widespread. It was

because of this fear that he was urged by his associates to come to Manila on July 8, 1986 to bring the money out of the
Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of Circular No. 960. The
fact that the accused had in his possession the foreign currencies when he was about to depart from the Philippines did not by that
act alone make him liable for Violation of Section 6.
What is imperative is the purpose for which the act of bringing foreign currencies out of the country was done the very intention.
It is that which qualifies the act as criminal or not. There must be that clear intention to violate and benefit from the act done.
Intent is a mental state, the existence of which is shown by overt acts of a person.
The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused had no wilfull
intention to violate the law. According to the respondent in his decision:
... this Court is persuaded to accept the explanation of the defense that the currencies confiscated and/or seized from the accused
belong to him and his business associates abovenamed. And from the unwavering and unequivocal testimonies of Mr. Templo
and all of currencies in question came from abroad and not from the local source which is what is being prohibited by the
government. Yes, simply reading the provisions of said circular will, readily show that the currency declaration is required for the
purpose of establishing the amount of currency being brought by tourist or temporary non-resident visitors into the country. The
currency declarations, therefore, is already (sic) intended to serve as a guideline for the Customs authorities to determine the
amounts actually brought in by them to correspond to the amounts that could be allowed to be taken out. Indeed, this Court is
amazed and really has its misgivings in the manner currency declarations were made as testified to by the Central Bank
employees. Why the Bureau of Customs representative never took part in all these declarations testified to by no less than five (5)
Central Bank employees? Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the
authorities must do something to remedy the evident flaw in the system for effective implementation of the questioned Central
Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused. This is due to its
steadfast adherence and devotion to the rule of law-a factor in restoring the almost lost faith and erosion of confidence of the
people in the administration of justice. Courts of Justice are guided only by the rule of evidence.
The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that to convict the accused for
violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the criminal intent to violate the
law. The respondent ought to know that proof of malice or deliberate intent (mens rea) is not essential in offenses punished by
special laws, which are mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the
accused to go scot free. The accused at the time of his apprehension at the Manila International Airport had in his possession the
amount of US$355,349.57 in assorted foreign currencies and foreign exchange instruments (380 pieces), without any specific
authority from the Central Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign
currency declarations in his possession. These were old declarations made by him on the occasion of his previous trips to the
Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular No. 960, the
respondent nonetheless chose to exonerate the accused based on his defense that the foreign currency he was bringing out of the
country at the time he was apprehended by the customs authorities were brought into the Philippines by him and his alleged
business associates on several previous occasions when they came to the Philippines, supposedly to be used for the purpose of
investing in some unspecified or undetermined business ventures; that this money was kept in the Philippines and he precisely
came to the Philippines to take the money out as he and his alleged business associates were afraid that the "attempted
revolution" which occurred on July 6,1986 might spread. Such fantastic tale, although totally irrelevant to the matter of the
criminal liability of the accused under the information, was swallowed by the respondent-judge "hook, line and sinker." It did not
matter to the respondent that the foreign currency and foreign currency instruments found in the possession of the accused when
he was apprehended at the airport-380 pieces in all-and the amounts of such foreign exchange did not correspond to the foreign
currency declarations presented by the accused at the trial. It did not matter to the respondent that the accused by his own story
admitted, in effect, that he was a carrier" of foreign currency for other people. The respondent closed his eyes to the fact that the
very substantial amounts of foreign exchange found in the possession of the accused at the time of his apprehension consisted of
personal checks of other people, as well as cash in various currency denominations (12 kinds of currency in all), which clearly
belied the claim of the accused that they were part of the funds which he and his supposed associates had brought in and kept in
the Philippines for the purpose of investing in some business ventures. The respondent ignored the fact that most of the CB
Currency declarations presented by the defense at the trial were declarations belonging to other people which could not be
utilized by the accused to justify his having the foreign exchange in his possession. Although contrary to ordinary human
experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that he and his alleged
business associates had brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very
substantial amounts in cash and checks in various foreign currency denominations) for the purpose of investing in business even
before they knew and had come to an agreement as to the specific business venture in which they were going to invest. These and
other circumstances which make the story concocted by the accused so palpably unbelievable as to render the findings of the
respondent judge obviously contrived to favor the acquittal of the accused, thereby clearly negating his claim that he rendered the
decision "in good faith." His actuations in this case amount to grave misconduct prejudicial to the interest of sound and fair
administration of justice.

He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least the amount of
US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture
proceedings had already been instituted by the Bureau of Customs over the currency listed in the information, which according to
the respondent should be respected since the Bureau of Customs "has the exclusive jurisdiction in the matter of seizure and
forfeiture of the property involved in the alleged infringements of the aforesaid Central Bank Circular." In invoking the
provisions of CB Circular No. 960 to justify the release of US$ 3,000.00 to the accused, the respondent judge again displayed
gross incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be taken as authority
for the trial court to release the said amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists
may take out or send out from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange
brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them
more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at points of entries upon
arrival in the Philippines. In other words, CB Circular No. 960 merely provides that for the purpose of establishing the amount of
foreign currency brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange he is
bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in other foreign currencies.
There is nothing in said circular that would justify returning to him the amount of at least US$3,000.00, if he is caught attempting
to bring out foreign exchange in excess of said amount without specific authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross incompetence, gross
ignorance of the law and grave and serious misconduct affecting his integrity and efficiency, and consistent with the
responsibility of this Court for the just and proper administration of justice and for the attainment of the objective of maintaining
the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be
DISMISSED from the service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited
with prejudice to his being reinstated in any branch of government service, including government-owned and/or controlled
agencies or corporations.
This resolution is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and
Grio-Aquino, JJ., concur.
Padilla, Narvasa, JJ., took no part.
EN BANC
G.R. No. L-47722
July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendantsappellants.
Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibaez and Assistant
Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of
homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to
two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of
P1,000. Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva
Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked
that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D.
Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried
to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this
group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where
Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour.
Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door
where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots,
Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at
him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal
Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector,
informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and

to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo
de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his
death.
These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene
Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of
police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further
inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room
thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed
Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards
the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are
Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued
firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed
Balagtas, who was then apparently watching and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a
natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired
at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other
hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that
when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the
appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating
averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by
both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in
bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still
lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we
believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the
two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not
concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which
were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not
feel ourselves justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and
Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest
performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining
this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We
are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through
specially mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15
Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or
carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the
door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed
and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been
placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded
the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was
marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his
money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was
loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an
innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make
a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited,
found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea.
This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were
instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by
him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People
vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in

the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested
shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer
cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.
vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice
and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his
arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid
down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by
such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere
fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a
basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here,
the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of
such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we
should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. 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, "para que se celifique un hecho de imprudencia es preciso que no
haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha
producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo
7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once 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; People vs. Bindor, 56 Phil., 16),
and 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) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is,
however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of
the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of
a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a
justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury
or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or
office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their
duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the
person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his
identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law
shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating
circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision
correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased
Serapio Tecson jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving
information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila
ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive".
Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and
Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of
Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather
information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded
to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then
gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by
Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching
the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man
who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out
that the person shot by Oanis and Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija,
however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate
penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs
of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the
Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest
belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a
record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest,
whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have
acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas
would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On
the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or
ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby
exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered
by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express
order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would
indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been
overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the
instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in
conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact
that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be
profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly
sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas
that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the
reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose
(Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not
Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith.
(U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although
the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the
person who was believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein,
who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from
criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case
involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein
killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not
have lawful instructions from superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without
regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something
which places his captors in danger of imminent attack. Precisely, the situation which confronted the accused-appellants Antonio
Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both
officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also
of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis
to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case,
Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned
honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was
supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of
Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a
man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his
intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of
persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the
part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who,
according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the
case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed
without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but
to take the facts as they appeared to them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which favored the accused-appellants,
arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the
Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This

incomplete justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts
in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not
proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that
the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in
view of the number and nature of the conditions of exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also
taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of
Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and
circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of
relatives, defense of strangers, state of necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5
of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its
scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870 which is
the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza inrresistible o
impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un
derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa
legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones
hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del
hecho es o no menor de nueve aos; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay
que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto
que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que establece; esto es,
que falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos,
toda vez que, en los casos referidos, la ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed by law
shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required by the law to justify
the same or exempt from criminal liability. The word "conditions" should not be confused with the word "requisites". In dealing
with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken
into account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury
or offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a bailarina named
Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both
found him with Irene, and the statement made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the acquittal of
appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio Tecson. Galanta was
armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the
unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a
corporal of the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had
been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from
his trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was
given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by
Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938,
when Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and
privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets exhibits F and O, the first being extracted from the head of
the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, had not been
fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the
accused Galanta to have substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that
the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why
Galanta should carry along another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as
above stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the
conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8
mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a
.45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be stated that no bullet

fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he should be declared criminally
responsible for said death.
EN BANC
G.R. No. L-5272
March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs. AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because
from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no
other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the
accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be
said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the
same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached
house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club.
No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of
which opened upon a narrow porch running along the side of the building, by which communication was had with the other part
of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not
furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside
of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair.
In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there
were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by
some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and
was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due
to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was
a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just
above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though
in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door
against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that
Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure
bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took
place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated
robberies he kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal
incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with
his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and
Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their
walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A
few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found
Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual
was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of
mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to
give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects
of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck
the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that The following are not delinquent and are therefore exempt from criminal liability:
xxx
xxx
xxx
4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.


(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal
liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a
dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thricerepeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that
in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor
any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such
"unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was
no real "necessity" for the use of the knife to defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a
mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to
be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time
when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances
there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent
which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in
crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand
a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him,
even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's
Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice
or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the
Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein
defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or
with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various
definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or
other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general
rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely
contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the
general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of
all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful
thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the
affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a
disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the
other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of
the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm"
(Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed
the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed
be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary
act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal
intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were
expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco,
Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility
when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence,
nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention
there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order
to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the
sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in
which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will
and an intent to cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the
inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because
of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is
he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following language:
. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined
and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial
court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and
misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be
punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall
constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of
arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained
in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider
proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference
from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence,
and imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in
English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes
means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate
the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to
mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe
the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and
"malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between
them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual,
and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed
"voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a
criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter
mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between
private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a
criminal mind. So that
There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without
which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age
allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is
of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine
confirmed by
Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has
supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention

were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like
sort. In this, as just said, criminal jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a
man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind
keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the
innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act
from his neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment
for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment
which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr.
Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the
utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from
which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal
Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from
the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice
could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the
courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard
to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158,
notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's
fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law,
and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases
cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with
otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat
("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,
190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have
proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault
or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they
appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N.
Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex.
Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the
mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other
wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing
or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does
believe them he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the
law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked
and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol
demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol
leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will
doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and
wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the
facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the
"act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1
of the code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that
supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be

either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief.
(Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand,
and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a
club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the
pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is
more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would
entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party
killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full
because the facts are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other
light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a
person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which
he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on
the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as
he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The
accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted
in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the
Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists
rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned
him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the
supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the
accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and
beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no
other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of selfdefense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was
the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there
was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the
lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not
apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada,
Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a
point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you
money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his
assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing
that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense
under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means
employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.)
(Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window
at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money,
otherwise his house would be burned" because of which, and observing in an alley adjacent to the mill four individuals, one of
whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites
of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in
favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity
for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon

appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at
night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and
family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from
whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in
view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the
facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or
in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his
property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the
crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the
crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the
victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however,
executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under
the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore
incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable
motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty
of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an
indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.
EN BANC
G.R. No. L-16486
March 22, 1921
THE UNITED STATES, plaintiff-appelle, vs. CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant. Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission of the offense of homicide which is under discussion in the present
appeal are these:
At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a short distance from
the lighthouse and not far from where the river debouches into the Manila Bay, a small boat was sent out to raise the anchor. The
crew of this boat consisted of the accused, Calixto Valdez y Quiri, and six others among whom was the deceased, Venancio
Gargantel. The accused was in charge of the men and stood at the stern of the boat, acting as helmsman, while Venancio
Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly began to abuse the
men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it would be better, and they would work
better, if he would not insult them. The accused took this remonstrance as a display of insubordination; and rising in rage he
moved towards Venancio, with a big knife in hand, threatening to stab him. At the instant when the accused had attained to
within a few feet of Venancio, the latter, evidently believing himself in great and immediate peril, threw himself into the water
and disappeared beneath its surface to be seen no more.
The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant, say, 10 paces from
the Vigan. Two scows were moored to the shore, but between these and the boat intervened a space which may be estimated at 18
or 20 yards. At it was full midday, and there was nothing to obstruct the view of persons upon the scene, the failure of Venancio
Gargantel to rise to the surface conclusively shows that, owing to his possible inability to swim or the strength of the current, he
was borne down into the water and was drowned.
Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused told the remaining
members of the crew to keep quiet or he would kill them. For this reason they made no movement looking to rescue; but
inasmuch as there witnesses are sure that Venancio did not again come to the surface, efforts at rescue would have been fruitless.
The fact that the accused at his juncture threatened the crew with violence is, therefore, of no moment except tho show the
temporary excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the body, in the hope
that it might come to the surface and could thus be recovered. Though his friendly vigil lasted three days nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the house of an
acquaintance; and his personal belongings have been delivered to a representative of his mother who lives in the Province of
Iloilo. His friends and relatives, it is needless to say, take it for granted that he is dead.

The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that Venancio Gargantel may
have survived; and we think that the trial judge did not err in holding that he is dead and that he came to his death by drowning
under the circumstances stated. The proof is direct that he never rose to the surface after jumping into the river, so far as the
observers could see; and this circumstance, coupled with the known fact that human life must inevitably be extinguished by
asphyxiation under water, is conclusive of his death. The possibility that he might have swum ashore, after rising in a spot hidden
from the view of his companions, we consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for it is obvious that
the deceased, in throwing himself in the river, acted solely in obedience to the instinct of self-preservation and was in no sense
legally responsible for his own death. As to him it was but the exercise of a choice between two evils, and any reasonable person
under the same circumstances might have done the same. As was once said by a British court, "If a man creates in another man's
mind an immediate sense of dander which causes such person to try to escape, and in so doing he injuries himself, the person
who creates such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of The AttorneyGeneral, as follows: It appeared that upon a certain occasion an individual, after having inflicted sundry injuries upon another
with a cutting weapon, pointed a shotgun at the injured person and to escape the discharge the latter had to jump into a river
where he perished by drowning. The medical authorities charged with conducting the autopsy found that only one of the wounds
caused by a cut could have resulted in the death of the injured person, supposing that he had received no succour, and that by
throwing himself in the river he in fact died of asphyxia from submersion. Having been convicted as the author of the homicide,
the accused alleged upon appeal that he was only guilty of the offense of inflicting serious physical injuries, or at most of
frustrated homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even though the death
of the injured person should not be considered as the exclusive and necessary effect of the very grave wound which almost
completely severed his axillary artery, occasioning a hemorrhage impossible to stanch under the circumstances in which that
person was placed, nevertheless as the persistence of the aggression of the accused compelled his adversary, in order to escape
the attack, to leap into the river, an act which the accused forcibly compelled the injured person to do after having inflicted,
among others, a mortal wound upon him and as the aggressor by said attack manifested a determined resolution to cause the
death of the deceased, by depriving him of all possible help and putting him in the very serious situation narrated in the decision
appealed from, the trial court, in qualifying the act prosecuted as consummated homicide, did not commit any error of law, as the
death of the injured person was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and he was properly
convicted of the offense of homicide. The trial judge appreciated as an attenuating circumstance the fact that the offender had no
intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the judge
sentenced the accused to undergo imprisonment for twelve years and one day, reclusion temporal, to suffer the corresponding
accessories, to indemnify the family of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance
with law; and it being understood that the accessories appropriate to the case are those specified in article 59 of the Penal Code,
the same is affirmed, with costs against the appellant. So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.
Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the steamer Vigan subject
to the orders of the accused Calixto Valdez and who at the time was engaged in the work of raising the anchor of that vessel,
which was then lying at the Pasig River, a short distance from the lighthouse and not far from its mouth at the Manila Bay, upon
seeing that the accused was approaching him, armed with a big knife, and in the attitude of attacking him, threw himself into the
water and disappeared from the surface and had not been seen again. This event took place at noon on November 29, 1919, the
boat being then about 30 or 40 yards from land and about 10 steps from the Vigan, there being two lighters moored to the shore
and at a distance of about 18 or 20 yards from the boat. All of these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and alleging that as a
result of his having thrown himself into the river under the circumstances mentioned, Venancio Gargantel was drowned, was
presented on December 8, 1919, that is, nine days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same thing, that he had died.
From November 28, the day when the event occurred, until December 8, when the information was filed, it cannot in any manner
be maintained that the necessary time had passed for us to properly conclude, as is alleged in the information, that said Gargantel
had died by drowning, as a consequence of his having thrown himself into the water upon seeing himself threatened and attacked
by the accused. Neither does it appear in the evidence that all the precaution necessary for us to assure ourselves, as a sure and
proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any evidence that it would have been
impossible for him, by swimming or by any other means to rise to the surface at a place other than the Pasig River or that where
the boat was, from which he threw himself into the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the accused di not take the
stand, it only appears that Venancio Gargantel, after having jumped from the boat, did not rise again to the surface. Such was the
statement of two of those witnesses who were members of the boat's crew at the time. Another witness also declared that
Gargantel was afterwards not again seen at the house where he lived in this city, No. 711 San Nicolas Street, where he kept his
trunks and some effects, a fact which caused his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon

being informed of it and upon the failure of Venancio to appear in said place, to give special power on the 28th of that month of
December, that is, one month afterwards, to a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house.
Sid Garzon himself testified, upon being asked whether Venancio Gargantel had returned to the house of his parents since
November 29, 1919, that he had no information about it, and another witness, Pedro Garcia, of the prosecution, stated that he had
probably died, because he had not seen Venancio Gargantel.
Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon being threatened with
a knife by the accused, his whereabouts has remained unknown even at the moment of rendering judgment in this case, or,
February 9, 1920, that is, two and one-half months after the occurrence of the event.
It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless in the record no
statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of the municipality of Guimbal,
merely stated in the power of attorney executed in favor of Ignacio Garzon that the latter should take steps in order that the city
fiscal might investigate the death of her son which, according to information, was caused by another members, of the crew of the
steamer Vigan; and none of his friends, that is, none of the two members of the party in the boat at that time and of the crew of
the steamer Vigan, nor Maximo Gumbog, the owner of the house in which Gargantel lived in this city, nor Pedro Garcia, another
member of the crew of that steamer, and finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for the
simple reason that this was not possible, for they only knew that he did not again rise to the surface and was not seen again after
having thrown himself into the river from the boat.
For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all reasonable possibility
that Venancio Gargantel could have survived and that the circumstance that never rose to the surface after having jumped into the
river, as witnessed by the persons present, together with the admitted fact that human life is necessarily asphyxiated under the
water, is conclusive that he died. Then, there is nothing more than a deduction that Gargantel had died based upon those facts and
circumstances.
In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility that Gargantel
had risen to the surface at some place away from the where he threw himself into the river and had embarked on some other
vessel in the same river or out of it in the bay and had gone abroad, or to some province of these Islands and is found in some
municipality thereof, cannot be denied. And this is very probable inasmuch as it does not appear in the record that the necessary
investigation has been made in order to determined even with only some measure of certainty, not to say beyond all reasonable
doubt, that it was and is impossible to find said person or determined his whereabouts.
Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption may exist, according
to section 334 of the Code of Civil Procedure, it is necessary that no information about him should have been received for seven
years from his disappearance upon his throwing himself into the river, which occurred on November 29, 1919, that is, only about
one year and four months ago. And if, in order that a finding of a civil character in favor of or against some person, may be made,
by virtue of that presumption, it is necessary that seven years should have elapsed without any notice being received of the person
whose whereabouts is unknown, it is not just, reasonable, or legal that the period of one year and four months from his
disappearance or since Venancio Gargantel threw himself into the water should suffice for us to impose upon the accused Calixto
Valdez such a grave penalty as that of twelve years and one day of reclusion temporal, merely assuming without declaring it, as a
proven fact, that Gargantel has died and at the same time finding said accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882, cited by the
majority opinion is not applicable. The first, is not applicable because in the present case it is not proved, beyond reasonable
doubt, that some damage resulted to Gargantel, just as it cannot be considered as proved that he had died, or that he had been
injured or that he had suffered some injury after having thrown himself into the river as a result of the threat of the accused. The
second is not applicable because the decision of the Supreme Court of Spain refers to a case, in which the injured party had
already been wounded with a cutting instrument by the accused before throwing himself into the river upon the latter aiming at
him with his gun, it having afterwards been proved upon his being taken out of the river that the wound inflicted upon him by the
accused was mortal; and, consequently, it was declared by said court that, even if the death of the deceased be considered as not
having resulted exclusively and necessarily from that most grave wound, the persistence of the aggression of the accused
compelled his adversary to escape it and threw himself into the river, by depriving him of all possible help and placing him in the
serious situation related in the judgment appealed from -a case which, as is seen, is very different from that which took place in
the present case.
For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the accused Calixto Valdez
y Quiri cannot be found guilty of homicide and should be acquitted.
EN BANC
DECISION
September 7, 1931
G.R. No. 35006
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PURIFICACION ALMONTE, defendant- appellant.
Teodosio R. Dio for appellant.
Attorney-General Jaranilla for appellee.
IMPERIAL, J.:
Purificacion Almonte is charged with the crime of homicide, the information reading as follows:
The undersigned provincial fiscal charges Purificacion Almonte with the crime of homicide, committed as follows:

That on or about October 1, 1930, in the municipality of Sorsogon, Province of Sorsogon, Philippine Islands, and within the
jurisdiction of this court, the aforementioned accused did willfully, unlawfully, and feloniously beat, attack, and assault one Felix
Te Sue with a knife, which she carried, producing a wound in the abdomen which was the immediate cause of the death of the
said Felix Te Sue.
Contrary to law.
Sorsogon, Sorsogon, November 7, 1930.
(Sgd.) JACINTO YAMZON
Provincial Fiscal
The accused pleaded not guilty, and after the trial, at which she was represented by counsel, she was convicted of the said crime
of homicide, and sentenced to fourteen years, eight months, and one day of reclusion temporal, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs. The defendant appealed.
The facts which have been proved beyond question are as follows:
Until a week before the crime, the accused lived maritally with the Chinaman Felix Te Sue who was a married man. Because one
Miguela Dawal, with whom he had also lived maritally, threatened to bring suit against him unless he rejoined her, the Chinaman
and the accused voluntarily agreed to separate. From that time on Te Sue lived in the barrio of Guinlajon, municipality of
Sorsogon, Province of Sorsogon, together with the said Miguela Dawal. On the morning of October 1, 1930, the accused visited
her former paramour and on entering the house, found him with Miguela. When Te Sue saw her, he approached and told her to go
away at once because her new paramour might get jealous and do her harm. The accused insisted upon remaining, and on being
pushed by Te Sue and Miguela, feeling that she was being unjustly treated, took hold of a small penknife she carried and stabbed
the man in the abdomen. Horrified, perhaps, at her deed, she fled to the street, leaving the blade sticking in her victims abdomen,
and, taking the first bus that chanced to pass, finally went home. The injured man was at once taken to the provincial hospital
where he was given first aid treatment, and Doctor Ortega performed a slight operation upon him, cleaning and sewing up his
wound. It was not serious, according to the doctor, and might be healed in a week; but on the sixth day the patient succumbed to
complications which we shall treat of later on. The relatives of the deceased paid a little over P200 for the hospital treatment and
the expenses of his last illness.
In this instance the defense assigns the following alleged errors as committed by the trial court in its judgment:
I. The trial court erred in holding that the unnecessary movements of the deceased while in the provincial hospital of Sorsogon
for medical treatment were caused by the pain of the wound inflicted by the accused.
II. The trial court erred in holding the accused criminally responsible for the secondary hemorrhage which caused the death of the
deceased.
III. The trial court erred in holding the accused responsible for the death of the offended party as the direct and immediate
consequence of the wound inflicted by the accused.
IV. The trial court erred in holding the accused of the crime of homicide as charged in the information instead of lesiones leves as
supported by the evidence in this case.
The first three assignments of error raise questions of fact and what really caused the death of the deceased. It is strongly argued
that the judgment appealed from is erroneous in finding that the deceaseds movements, which Doctor Ortega declares were the
cause of the secondary hemorrhage that produced his death, were due to the pain felt after the operation and during his illness. It
is contended that according to the record, the real cause of the movements was, so the deceased himself declared, the excessive
warmth of the bed and the fact that he was unaccustomed to such a bed. To ascertain this important point requires a careful
examination of the evidence upon this particular.
Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital, a physician of admitted ability and skill, speaking of the
patients physical condition when he entered the hospital, testified as follows:
Q.What was the result of your examination? ?
A.I found a wound in the abdomen, on the left side near the umbilical region; it was not deep and did not penetrate very far, but it
passed through the muscle tissue.
Q.What caused the death of Felix Te Sue? ?
A.He died of a secondary internal hemmorhage.
Q.How? ?
A.The wound was caused by a certain blow, because the penknife was not very sharp; the force of the blow which introduced the
knife into the flesh produced a secondary congestion of the internal organ so that any unnecessary movement on the patients part
would cause congestion of the veins, or would make them more congested and cause them to bleed.
Q.And in the case of Felix Te Sue, did they bleed? ?
A.He began to bleed after he had been twenty-four hours in the hospital.
Q.Why do you call it a secondary hemorrhage? ?
A.There are many kinds of hemorrhages: Primary, in this particular case, if the wound had reached the internal organs and
severed the veins of those organs it would be called a primary hemorrhage because it was directly caused by the wound; but there
was no immediate hemorrhage after the wound was inflicted, but twenty-four hours later; in other words, there was what is called
a secondary hemorrhage.
Q.You also said that Felix Te Sue had made an unnecessary movement? ?
A.Yes, sir.
Q.Can you tell the court what were those unnecessary movements? ?

A.Those movements were the following: The patient began by moving from side to side; then he would sit up at night, and
perhaps jump out of bed, and begin walking about; when asked why he did that, contrary to medical instructions, he explained
that he could not lie down because the bed was to warm, and that he was not used to lying to bed.
Q.Do you mean to say that the patients movements brought on the secondary internal hemorrhage? ?
A.Yes, sir, they produced the secondary internal hemorrhage.
Q.And he died because of that secondary internal hemmorhage? ?
A.Yes, sir.
Q.Was the wound alone, as treated by you, sufficient to cause the death of Felix Te Sue? ?
A.If the patient had lain in bed quietly, in order to avoid increasing the congestion of the internal veins, there would have been no
secondary hemorrhage.
Q.But the wound you treated could have been healed? ?
A.Yes, sir; it could have been.
Q.In how many days could it have been healed? ?
A.That wound, if there had been no secondary infection, would have healed up in a week.
Q.You said that Felix Te Sue had been asked why he moved about contrary to the physicians instructions; what instructions did
you give him? ?
A.As soon as he had been admitted into the hospital, he was examined, and then made to lie in bed. Medical treatment was then
administered, and he was given to understand that he should remain in bed, for any unnecessary movement might aggravate his
condition, and that what he needed was complete rest.
Q.If he had not made those movements, do you think death would have ensued? ?
A.I am very sure he would not have had that secondary hemorrhage, because as a matter of fact, during the first twenty-four
hours he had no symptoms of having an internal hemorrhage.
Q.And that internal congestion of the veins, although those veins contained more blood than usual, would not have caused the
hemorrhage? That is to say, the veins would not have burst, if the patient Felix Te Sue had not moved about, as you have said? ?
A.Yes, sir; that internal congestion would have not burst if the patient had not moved about.
Q.Can you tell us, doctor, why strangers who know nothing about the care of the sick are placed in charge of a patient so delicate
that his moving may cause his death, as indeed it did, in this case? ?
A.The patient was not placed in the care of strangers; we have nurses to attend and see to the patient as often as it is needed,
besides the physicians visits to him; but even in the presence of the doctor and the hospital attendants, and after we had put the
patient to bed, he continued to struggle with us.
Q.Do you mean to say, then, that Felix Te Sue was fastened in his bed, and in spite of that he was able to leave it a walk about? ?
A.He left his bed the first day after the operation, and immediately after it, when he was not fastened in because he did not seem
to be violent. (Pages 16-22, transcript of the stenographic notes.)
From the foregoing testimony it may be inferred: That the deceased was stabbed on the left side of the abdominal region, near the
navel; that the wound did not involve any internal organ; that upon arriving at the hospital, he was submitted to a minor operation
which consisted in cleaning, medicating, and suturing the wound; that upon his arrival, the patient was in a nervous state; that
during the operation they tied down the patient; that immediately after the operation Doctor Ortega admonished him to keep quiet
because any movement he might make would change his pathological state for the worse and bring about dangerous
complication; that in spite of this admonition the deceased moved about, sitting up in bed, getting up and pacing about the room;
that because of this, the internal vessels, already congested because of the wound, bled, and the hemorrhage thus produced caused
his death.
The defense contends, with which the Attorney-General agrees, that according to Doctor Ortegas testimony the determining
cause of Te Sues death was not he wound inflicted by the accused, but his own carelessness in moving about against the doctors
orders, which produced the internal hemorrhage. We agree with both parties that according to Doctor Ortega, the immediate and
determining cause of the death was none other than the internal hemmorhage produced by the rupture of the abdominal blood
vessels; but we cannot agree, in view of the evidence, that the real cause of said death was not the wound inflicted upon the
victim. Carefully analyzing Doctor Ortegas testimony, we reach the inevitable conclusion that the internal veins were congested
from the beginning because of the force of the blow which produced the wound, for that is what the doctor means when he says
that the wound was caused by a certain blow, because the penknife was not very sharp, the force of the blow which introduced
the knife into the flesh produced a secondary congestion of the internal organ so that an unnecessary movement on the patients
part would cause congestion of the veins, or would make them more congested, causing them to bleed; and that what really
impelled the patient to violate the doctors orders, by sitting up in bed and pacing about the room, was not, as the defense
insinuates, a desire to aggravate the criminal liability of the accused, but simply his nervous condition, which was noted from the
moment he entered the provincial hospital. It was not the warmth of the bed or his not being used to it that made the patient act as
he did, but the pathological state created by the illness brought on by the wound from which he was suffering. We are convinced
that under normal conditions, if the patient had not been ill, he would not have violated the doctors orders, knowing, as he did,
that the slightest movement might occasion a complication or internal hemorrhage capable of causing death.
The point raised by Viada in volume 3 of his work, pages 41 and 42, involves facts similar to those established in this case, and
we believe the decision of the Supreme Court of Spain is perfectly applicable to this case:
Even when the doctors say that the death was due not so much to the wound, which in a better constituted person would have
healed in thirty or forty days, as to the patients purely nervous temperament, his irritability and other causes, all of which depend
upon his physical constitution: ? should such a death be qualified as HOMICIDE? The Supreme Court has ruled affirmatively:

Inasmuch as a man is responsible for the consequences of his act ? and in this case the physical condition and temperament of
the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but
by the result actually produced and as the wound which the appellant inflicted upon the deceased was the cause which determined
his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide,
etc. (Decision of April 3, 1879, published in the Gazette on the 16th of June.)
In the case cited the doctors were of the opinion that death was not an immediate consequence of the wound received, but was
rather due to the victims purely nervous temperament, his irritability and other causes, peculiar to his physical constitution. In
the case in question, it is sought to attribute the internal hemorrhage that directly caused death, not to the wound or injury, but the
patients movements, overlooking the fact that they were due to his nervous condition, and that this state of nervousness could
only be the result of the wound inflicted by the appellant. We hold, therefore, that the real cause of death in this case was not the
bodily movements referred to, but the congestion of the internal veins produced beforehand by the force of the blow which
caused the wound and the nervous condition of the deceased.
In United States vs. Sornito (4 Phil. 357), we held that In crimes against the life of a human being the results and effects of the
criminal acts must necessarily be taken into consideration in order to establish the seriousness and extent of the evil or injury
produced and to define the crime in accordance with the law. It must also be taken into consideration that the guilty parties are
responsible under the law for all the unlawful acts executed by them in violation of its principles and for all the consequences of
those acts.
In United States vs. Montes (6 Phil. 443), we also held that Where a person voluntarily and with intent of injuring another
commits an act which is notoriously unlawful, he shall be held responsible for the consequences of his criminal action, even
though when such wrongful act constitutes the crime of homicide it appears that he had no intention of killing the deceased.
In United States vs. Navarro (7 Phil. 713), we reaffirmed the same principle holding that `the firm and unalterable jurisprudence
of the Supreme Court (interpreting the Penal Code now in force and effect) is that the crime of homicide is committed when
death ensues or follows, as the result of a wound inflicted by another, whether the death be the precise and necessary
consequence of the injuries or wounds, or whether death resulted from accidents caused or brought on by reason of such wounds
or injuries received by the patient. (Judgment of the Supreme Court of Spain, May 8, 1890.) `It is the firm and unalterable
doctrine, and so held by the Court of Cassation, that the aggressor is responsible for all the natural consequences of the
aggression when these consequences do not owe their origin to acts or malicious omissions imputable to the assaulted party.
(Judgment of the Supreme Court of Spain, May 30, 1892.)
The same doctrine was laid down in United States vs. Monasterial (14 Phil. 391). Here it was held among other things, persons
who are responsible for an act constituting a crime are also liable for all the consequences arising therefrom and inherent therein,
other than those due to incidents entirely foreign to the act executed, or which originate through the fault or carelessness of the
injured person, which are exceptions to the rule not arising in the present case.
At this juncture it is well to remember that, as we stated in the beginning, the patients nervous condition when the complication
or internal hemorrhage which caused death set in, was an inherent physiological condition produced by the wound in the
abdomen. It goes without saying that if he had not been wounded he would not have undergone that extraordinary state and
condition, nor have had to leave his bed during the critical stage of his illness.
Lastly, in United States vs. Zamora (32 Phil. 218), we held that One who performs a criminal act should be held to liability for
the act and for all of its consequences, although both were inflicted upon a person other than the one whom the felon intended to
injure.
The cases which the Attorney-General cites in his brief are not applicable, for the reason that in them all the deaths were due to
alien acts, malicious and imprudent, performed by the injured persons themselves. We have shown that in the case at bar the real
and actual cause of death of the deceased was the hemorrhage of the internal veins, which had already been congested by the
wound produced and the patients nervous condition, rather than the so-called bodily movements, and that these, if they were the
immediate cause of his death, were the direct consequence of the patients pathological condition or nervousness. At any rate,
they are both traceable to the wound inflicted by the accused.
The last assignment of error is but a corollary to the first three, which have just been refuted, and it is contended that the accused
can only be convicted of slight physical injuries, instead of the serious crime of homicide. If the appellant must answer for all the
consequences of her acts voluntarily performed, as we have shown, it necessarily and logically follows that she must be
convicted of the graver offense.
The appellant is entitled to the mitigating circumstances of not having intended to commit so serious a crime as that committed,
and of having acted with passion and obfuscation. The first is shown by the fact that she made use of a small penknife, and the
second, by the fact that before the attack she had been pushed out of the room where the victim was, and that she considered such
treatment as an offense or abuse. The penalty must therefore be reduced one degree or to prision mayor.
Wherefore, the judgment appealed from is modified and the appellant is sentenced to eight years and one day of prision mayor, to
indemnify the heirs of the deceased in the amount of P500, to suffer the accessory penalties of article 61 of the Penal Code, and
to pay the costs of both instances. So ordered.
Avancea, C.J., Johnson, Street, and Villamor, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
It appears from the testimony of Dr. Eduardo Ortega that immediately after being wounded by the accused, Felix Te Sue went to
the hospital of Sorsogon where he was examined by said doctor, who found that he had a wound on the left side of the abdomen
near the umbilical region, which while it penetrated the muscle tissue, was not deep and did not produce a primary hemorrhage,

for it did not reach the internal organs, and might be healed in seven days. A minor operation was performed upon him, but in
order to do so, he had to be tied down, because he was afraid. After the operation he was put to bed, given medical treatment, and
to told to keep quiet because he needed complete rest and any unnecessary movement might have aggravate his condition.
Besides the hospital nurses and attendants, two relatives to the injured person watched him night and day.
As the penknife was not sharp, the force of the blow by which it was introduced into the flesh produced a secondary congestion
in the internal organ, which, through any unnecessary movement on the patients part might cause congestion of the veins. After
twenty four hours had passed without any indication if an internal hemorrhage, it set in with the bursting of the congested veins,
because the patient, disobeying the doctors orders, moved from side to side, sat up in a bed at night, got up, and paced about the
room, notwithstanding the warnings of the nurses and relatives, who attended him, saying that he could not remain lying down
because the bed was too warm for him, and that he was not used to that kind of furniture. In the opinion of the physician, the
patient would not have suffered a secondary hemorrhage and death would not have occurred, if he had not moved about.
In finding the defendant-appellant guilty of the crime of homicide and not merely of slight physical injuries, the majority rely
upon the holding that the movements made by the patient against the doctors orders, which caused the rupture of the veins
already congested by the impact of the blow, were due to his nervous condition and not to the excessive warmth he felt or to his
not being used to sleeping in a bed.
The doctor who examined the deceased, and upon whose testimony the majority base their conclusion, said nothing about the
victims nervous temperament, nor has the latter said he was so. The doctor said quite plainly ? and we have no reason to doubt
him ? that the patients restlessness was due to the fact that the bed was to warm for him, and that he was not used to it. One need
not have a nervous temperament in order to look for coolness and comfort in sleeping. If the injured man, for the sake of a cooler
and more comfortable bed, wished to risk his life ? by a purely conscious and voluntary act ? violating the doctors instructions
and refusing to listen to his warnings and those of the persons attending him, he alone must be held responsible for his own death,
which resulted from his carelessness; and such death cannot be attributed to the person who wounded him slightly, and who is,
indeed, responsible for the natural and logical consequences of such a voluntary act, but not for the death, which as we have seen,
was not a natural and logical consequence of the wound.
Very similar to this are the cases cited by Viada in volume V of the fifth edition of his commentaries, where the Supreme Court
of Spain laid down the following doctrines:
QUESTION 22. If the immediate cause of death was traumatic erysipelas complicated with meningoencephalitis arising form the
erysipelas itself, and the remote and original cause of the latter was the wound inflicted by the defendant on the upper part of the
offended partys left parietal bone, although if the victim were not predisposed to erysipelas, had not gone out in the open, and
had been given proper medicine, it is probable the accident would have been avoided and the wound healed in thirty days. Is the
person who inflicted the wound guilty of homicide or of physical injuries? The Supreme Court has held in favor of the latter and
lighter offense, arguing to make the special circumstances stated above qualify the act prosecuted as consequences of grossly
imprudent acts and omissions of the injured person, which unfortunately brought on his death, and which in all justice and reason
can only be imputed to the latter, and not to the defendant, who had no share in them and could not have prevented them.
(Decision of June 15, 1874, Gazette for August 26th.) 5 Viada, 5th edition, page 80.
QUESTION 23. When a wound in the head, which is essential a less serious physical injuries, gives rise to traumatic erysipelas,
which in turn produces cerebral meningitis from which the person injured dies in eleven days, and the doctors declare that the
erysipelas may have been due to the patients carelessness in constantly exposing himself to a draft: Is the act homicide or merely
less serious physical injuries? The Audiencia of Granada held in favor of the former, but upon appeal on the ground that articles
419 and 433 of the Code had been violated, because the crime of less serious physical injuries was penalized as if it were
homicide, the Supreme Court held that the appeal had been well taken, because according to the opinion of the doctors, the
erysipelas which preceded the meningitis that produced death may have been due to the patients carelessness in constantly
exposing himself to a draft, contrary to said doctors orders; and as it is not alleged that the other causes which might have
contributed to it actually occasioned the death, there is some doubt, for a crime is determined by the act wherein it consists, and if
this be so, the crime in question is none other than less serious physical injuries. (Decision of December 17, 1878, Gazette of
February 7, 1879.) 5 Viuda, 5th edition page 81.
QUESTION 24. If the verdict it is stated that the wounds inflicted upon the deceased by the defendant would have healed, with
the loss of the arm, had it not been for complications due to make mistakes committed by the doctor in the surgical operation and
treatment: Is the crime homicide? It was so held by the Audiencia of Jaen; but upon appeal taken by the accused, the Supreme
Court only found him guilty of the crime of serious physical injuries : Whereas, although as this court has repeatedly held, a
person is liable for all justiciable acts contrary to law and for all the consequences thereof, having inflicted physical injuries, from
which or from whose direct or immediate consequences death results, either incidentally or accidentally, the offender must
answer for the ultimate result of his act, i. e., for the death resulting from the injury he inflicted, ? yet this principle is not
applicable where it clearly appears that the injury would not have caused death, in the ordinary course of events, but would have
healed in so many days, and where it is shown beyond all doubt that the death is due to the malicious or careless acts of the
injured person or a third person, because it is a more and equitable principle universally recognized and constantly applied, that
one is accountable for his own acts and their natural or logical consequences, and not for those which bear no relation to the
initial cause and are due to the carelessness, fault, or lack of skill of another, whether it be the injured man himself or a third
person: Whereas, the proper jury having been found, upon the strength of the evidence before it, that the wounds inflicted by the
appellant Jeronimo Navarro upon Bartolome Martinez would have healed, with the loss of an arm, had it not been for certain
complications due to the mistakes committed by the doctor in the surgical operations and treatment thereof, it is obvious that
following the doctrine set forth in the foregoing reasonings, the appellant should not have been convicted of the crime of

homicide, but merely of serious physical injuries with the loss of a principal member, this being the only consequence imputable
to him in view of his act, inasmuch as the death was due wholly to another persons carelessness or lack of skill, etc. (Decision
of April 2, 1903, Gazette of May 23rd.) 5 Viada, 5th edition, page 81.)
In the first two cases cited, it will be observed that the deceased received less serious physical injuries and that death was due to
their own carelessness or abuses committed by them. In the third case, the deceased had been seriously injured, but died as a
result of the mistakes of the doctor in the surgical operation and treatment of the injuries. The Supreme Court of Spain held them
criminally liable for the crime of less serious physical injuries in the first two, and of serious physical injuries in the third,
because these, and not homicide were the natural consequences of their unlawful acts, inasmuch as death was the result of
carelessness and abuses committed by the injured persons themselves, and of the mistakes of the doctor in the surgical operation
and treatment of the wounds.
In United States vs. Embate (3 Phil. 640), where the real cause of death could not be determined, this court, through Chief Justice
Arellano, held:
All the witnesses attribute the death of the child to the illness it was suffering, but the doctor, who did nothing more than to
examine the body and gives his certificate as to certain bruises on the thighs, in his testimony states that the body showed
unequivocal signs of a serious disease of the heart, and that the bruises could not have caused the death of the child, but might
have contributed to accelerate the fatal result of that illness, which was a serious affection of the heart. Being asked by the judge
whether the gravity of the childs illness, owing to the affection of the heart, was such that it might have died without the blows
which were inflicted upon him, the witness replied that if in the first place the age of the child is taken into consideration, and in
the second its surrounding circumstances, its condition was such as to lead one to expect a fatal result, no physician being in
attendance.
Upon being further questioned as to whether he believed that the blows inflicted upon the child and which produced the bruises
were the cause of its death, he replied that as no other approximate cause is known than the great excitement produced by those
blows, it may be inferred that they were the sole cause which precipitated the fatal result of the illness of the child.
We do not find in this testimony, given solely upon the result of the examination of the body, sufficient evidence as to the true
cause of the death of the child. But it is true that the accused did strike him for the purpose of inflicting punishment, and as by
this he committed a misdemeanor which should not go unpunished, and which can be punished in this same cause under the
provisions of section 29 of General Orders, No. 58, . . .
For all the foregoing, I am of the opinion that the defendant- appellant can only be made to answer for the misdemeanor of slight
physical injuries as defined and penalized in article 587 of the Penal Code, inasmuch as the wound inflicted by her might have
been healed in seven days, the penalty fixed being arresto menor.
Malcolm and Romualdez, JJ., concur.
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. SC966). 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 laborrecruiter, 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,
(4)
Susana C. Hernandez, 46,
(6)
Modesta R. Brondial 58,
housewife, Ginlajon, Sorsogon.
married, housekeeper, Jose
married, housekeeper, Legaspi City.
(2)
Antonio B. Mabisa, 28,
Panganiban, Camarines Norte.
(7)
Elena B. Erminio 10,
married, laborer, Guinayangan,
(5)
Teodoro F. Bautista, 72,
student, 12 Liberty Avenue, Cubao,
Quezon.
married, Nawasa employee, San
Quezon City and
(3)
Isabelo S. Dando, 45,
Juan, Rizal.
(8)
Teresita B. Escanan, 25,
married, Paracale, Camarines Norte.
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


(3)
Salvador A. Maqueda 52,
avoid being killed. They were:
married, farmer, Lopez, Quezon and
(1)
Timoteo U. Dimaano, 53
(4)
Shirley A. Valenciano, 27,
married, carpenter, Miguelin,
married, housekeeper, 657-D Jorge
Sampaloc, Manila. .
Street, Pasay City (Exh. C-4. C-5,
(2)
Miguel C. Oriarte, 45,
C-6, C-10, J, J-1, J-2, K to K-2, M
married, Dalagan, Lopez, Quezon.
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 copassengers, who did not anticipate that the twins would act like juramentados 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.
Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Antonio, Esguerra, Fernandez and Muoz Palma, JJ., concur.
Makasiar, J., took no part.
Footnotes
1
That initial stabbing was described by Corazon Bernal-Astrolavio in her statement dated January 9, 1965 in this manner
(page 16 of the Record):
"4.
T:
May nasaksihan ba kayong hindi pangkaraniwang pangyayari na naganap nang gabing iyon at kung mayroon
maaari ba ninyong maisalaysay sa maikli ngunit maliwanag na pananalita?
"S:
Mayroon po. Nakaupo ako nuon sa bandang hulihan nang tren. Nagpapasuso ako nuon nang aking anak nang biglang
nagkagulo. Iyong katabi kong lalaki na may katandaan na ay biglang sinaksak iyong kaharap kong babae sa upuan. Nabuwal
iyong kanyang sinaksak, at ako naman ay nagtatakbo na dala ko iyong dalawa kong anak. Sumiksik kami doon sa may kubeta
nang tren na nang mangyari iyon ay lumalakad. Hindi ko alam na iyong aking kanan sintido ay nagdurugo. Nang tahimik na ay
dinala kami sa ospital sa Calamba at doon ay ginamot ako roon.
"5.
T:
Sinabi ninyo na nang biglang magkagulo samantalang lumalakad ang tren ay iyong katabi ninyong lalaki na
may katandaan na ay biglang sinaksak iyong kaharap ninyong babae sa upuan, nakita ba ninyo kung ano ang ipinanaksak nang
lalaking ito?
"S:
Hindi ko na po napansin dahil sa aking takot."
2
Mrs. Mapa's statement (Exh. E) reads:
"4.
T:
Sino po ang sumaksak sa inyo?
S:
Iyon pong lalaking mataas na payat na bisaya. Hindi ko po kilala pero kung makikita ko ay makikilala ko. Ito pong
sumaksak sa akin na ito ay dinala rin sa ospital sa Calamba, Laguna. Nauna po lamang ako at nakita kong siya ang isinunod na
may saksak din.
5.
T:
Bakit naman ninyo namukhaan itong sumaksak sa inyong ito?
S:
Kahelera po namin iyan sa upuan.
6.
T:
Maaari po ba ninyong isalaysay sa maikli ngunit maliwanag na pananalita ang buong pangyayaring inyong
nasaksihan?
S:
Opo. Nagpapasuso ako nuon nang aking anak, nang walang ano-ano ay nakita ko na lamang iyong nakasaksak sa akin
na biglang tumayo sa kanyang kinauupuan at biglang sinaksak iyong kaharap niyang sa upuan na babae na natutulog. Itong katabi
nang nanaksak na ito ay tumayo rin at nanaksak din nang nanaksak at ang lahat nang makitang tao ay hinahabol at sinasaksak.
Bata, matanda ay sinasaksak nang dalawang ito at madaanan. Nang bigla kong tayo ay natamaan iyong aking kanang kamay nang
kabig niya nang saksak. Nagtuloy ako sa kubeta sa tren at doon ako sumiksik. Nang payapa na ang lahat ay dinala ako sa
Calamba sa ospital doon, at ako'y ginamot nang pangunang lunas.
7.
T:
Itong katabi na lalaking sinasabi ninyong nanaksak din ay kung makita ninyong muli ay makikilala pa ninyo?
S:
Makikilala ko rin po. Magkahawig po sila nang nakasaksak sa akin."
The statement of Cipriano Reganet who was wounded (Exh. D-4), in a way corroborates Mrs. Mapa's statement. Reganet's
statement reads in part as follows (Exh. F);

"3.
T:
Maaari po ba ninyong masabi kung bakit kayo naririto ngayon sa PNR Hospital dito sa Caloocan City?
S:
Dahil po sa mga saksak na tinamo ko nang magkaroon nang gulo sa loob nang tren kagabing humigit kumulang sa mga
alas nueve (9:00 P.M.) petcha 8 nitong Enero 1965.
4.
T:
Sino po ang sumaksak sa inyo kung inyong nakikilala?
S:
Hindi ko po alam ang pangalan pero mamumukhaan ko kung ihaharap sa akin. Ang sumaksak po sa akin ay iyong
kasama ko sa ambulancia na nagdala saamin dito sa ospital na ito.
5.
T:
Bakit naman ninyo natiyak na ang sumaksak sa inyo ay iyong kasama ninyo sa ambulancia na nagdala sa
inyo sa ospital na ito?
S:
Malapit po lamang ang kanyang inuupuan sa aking inuupuan sa loob nang tren kaya namukhaan ko siya.
6.
T:
Ilan beses kayong sinaksak nang taong ito?
S:
Dalawang beses po.
7.
T:
Saan-saan panig nang katawan kayo nagtamo nang saksak?
S:
Sa aking noo at sa kanang kamay nang sangahin ko ang kanyang pangalawang saksak.
8.
T:
Bakit po naman kayo sinaksak nang taong ito?
S:
Hindi ko po alam. Primero nanaksak siya sa kanyang kaharap sa upuan at saksak nang saksak sa mga taong kanyang
makita.
9.
T:
Ilan ang nakita ninyong nananaksak?
S:
Dalawa pong magkatabi na magkahawig ang mukha.
10.
T:
Nang mangyari po ba ito ay tumatakbo ang tren?
S:
Tumatakbo po.
11.
T:
Papaano kayo nakaligtas?
S:
Tumakbo po ako at kumabit sa rampa at nang medyo tahimik na balak kong magbalik sa loob nang tren. Nakita ko na
maraming sugatan at sa wari ko ay patay na. Sa mga nakita ko sa loob nang tren ay iyong sumaksak sa akin, na nakasandal at
nang makita ako ay tinanganan iyong kanyang panaksak at tinangka akong habulin. Tumakbo ako at tumalon sa lupa. Sa pagtalon
kong iyon ay napinsala ang aking kaliwang balikat.
12.
T:
Ano po ang ipinanaksak sa inyo?
S:
Para pong punyal na ang haba ay kumulang humigit sa isang dangkal".
Mrs. Brigida Sarmiento-Palma, who was also wounded (Exh. D-3) executed a statement which reads in part as follows (page 20,
Record):
"4.
T:
Maaari po ba ninyong ysay sa maikli ngunit maliwanag na pananalita ang buong pangyayari?
S:
Opo. Nakaupo po ako nuon kaharap papuntang Bicol. Walang ano-ano ay bigla na lamang nakita ko na may sinaksak at
pagkatapos nakita ko na lahat nang makita babae o lalaki at sinaksak. Nang ako'y tumayo para tumakbo ay nilapitan ako at ako
naman ang sinaksak. Sumigaw ako at humingi nang saklolo at nakiusap sa isang tao na tagpan nang tualya iyong tinamo kong
saksak sa kaliwang puson na tumama sa buto. Makalipas ang ilang sandali ay dinala na ako sa ospital.
5.
T:
Nakikilala ba ninyo iyong sumaksak sa inyo?
S:
Kilala ko po sa mukha at kasama ko pa kahapon nang dalhin ako sa ospital na ito.
6.
T:
Ilan po itong nakita ninyong nanaksak?
S:
Dalawa po sila na magkahawig ang mukha.
THIRD DIVISION
G.R. No. 116736

July 24, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused,
BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the
resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he
thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the
said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the present
case, Appellant Garcia cannot be held liable as a principal because the prosecution failed to allege such death through drowning
in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal killer,
Appellant Ortega, who is his brother-in-law.
Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision, 1
dated February 9, 1994 written by Judge Adriano R. Osorio, 2 finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information 3 dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery
and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one
ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his
death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio, 4 pleaded not guilty to the charge. 5 Accused
"John Doe" was then at large. 6 After trial in due course, the court a quo promulgated the questioned Decision. The dispositive
portion reads: 7
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of
the crime charged, the Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs
of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar
Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria 8 who took over from the Public
Attorney's Office as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses as follows: 9
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar
Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of
Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they
[referring to the participants in the drinking session] heard the victim Andre Mar shouted, "Don't, help me!" (Huwag, tulungan
ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on
top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon.
That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo
Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo
Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay
from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega,
Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the
body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw.
That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters from Romeo Ortega's
house. That upon reaching home, his conscience bothered him and he told his mother what he witnessed. That he went to the
residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him to the Valenzuela Police Station and
some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended
and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he narrated
the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the
afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a]
drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the
stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish.
That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia
joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and
Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature
and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were having the
drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay asking for help.

That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help. That Benjamin
Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he
and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and
stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top
stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother
Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre Mar
Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on
October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that
occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station and a
police team under police officer Param accompanied them to the place. That he asked the police officers to verify if there is a
body of person inside the well. That the well was covered with stones and he asked the police officers to seek the help of
theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was found
inside the well. That the lifeless body was pulled out from the well. That the body has several stab wounds. That he came to
know the victim as Andre Mar Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado
Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr.
stabbed the victim while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre
Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the
autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is
multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on the
frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was stab
wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is (an)
incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That
the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant was in front
of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as
the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab wound on the back right
portion of the body may be produced when the assailant was at the back of the victim. That the assailant was in front of the
victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy particles
indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage,
loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of blood. The
stomach is one half filled with muddy particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or the
victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were
standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their
feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o'clock in the morning, went home,
changed his clothes and went to work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of
work. After drinking beer, they left at eight o'clock in the evening and headed home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant
Garcia's wife came and asked him to go home because their daughter was still sick. To alleviate his daughter's illness, he fetched
his mother-in-law who performed a ritual called "tawas." After the ritual, he remained at home and attended to his sick daughter.
He then fell asleep but was awakened by police officers at six o'clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the
drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet
Santos. 11
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia. 12 According to him,
between eleven and twelve o'clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay left,
he also left the drinking place to urinate. 13 He went behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. 14 After he was through, Masangkay approached him and asked
where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an
attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and

stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his left arm and
threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed
Masangkay's right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he
stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. 15 Quitlong chased Masangkay who ran
towards the direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept.
When he woke up at six o'clock the following morning, he saw police officers in front of his house. Taking him with them, the
lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a
dead person from the well. He came to know the identity of the dead person only after the body was taken to the police
headquarters. 16
The Trial Court's Discussion
The trial court explained its basis for appellants' conviction as follows: 17
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in
lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with
water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or
defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The
crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the
person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA
382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar
Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: 18
I.
The trial court erred in holding that there is conspiracy on the basis of the prosecution's evidence that at the time both
accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought
and drop said body of Andrew Masangkay to the well to commit murder;
II.
The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in
the well;
III.

The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and

IV.

The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.

On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be resolved
could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia?
The Court's Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal.
First Issue:

Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the
commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other hand,
attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held: 19
The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly
observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more

believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by
the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the stabbing incident
to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and
will go in hiding. . . .
Because the trial court had the opportunity to observe the witnesses' demeanor and deportment on the stand as they rendered their
testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly
overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of
credibility must be respected. 20
In the instant case, we have meticulously scoured the records and found no reason to reverse the trial court's assessment of the
credibility of the witnesses and their testimonies 21 insofar as Appellant Ortega is concerned. The narration of Eyewitness
Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant Ortega claimed that after he
was able to free himself from Masangkay's grip, he went home, treated his injuries and slept. 22 This is not the ordinary reaction
of a person assaulted. If Ortega's version of the assault was true, he should have immediately reported the matter to the police
authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a man would just
sleep after someone was stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would stab
Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also
inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself from
the alleged successive stabbing of Quitlong. 23 The natural tendency of a person under attack is to defend himself and not to
persist in choking a defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court found
the presence only of abuse of superior strength.
We disagree with the trial court's finding. Abuse of superior strength requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused purposely used excessive force that was manifestly out of
proportion to the means available to the victim's defense. 24 In this light, it is necessary to evaluate not only the physical
condition and weapon of the protagonists but also the various incidents of the event. 25
In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega's availment of force excessively out of
proportion to the means of defense available to the victim to defend himself. Quitlong described the assault made by Appellant
Ortega as follows: 26
ATTY. ALTUNA:
Q
Will you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you
witnessed a stabbing incident?
A
It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega,
Sr., because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other.
xxx

xxx

xxx

Q
Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in
said place?
A

The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega.

What about this victim, Andrew Masangkay, where was he at that time?

Also the victim, Andrew Masangkay, he was also there.

You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group?

Yes, sir.

What happened next?

While we were there together and we were drinking ... (interrupted by Atty. Altuna)

Who is that "we"?

A
Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and
Andrew Masangkay. Andrew Masangkay answer to a call of nature and went to the back portion of the house, and Benjamin
Ortega, Jr. followed him where he was.
Q

What happened next?

And afterwards we heard a shout and the shout said "Huwag, tulungan n'yo ako".

From whom did you hear this utterance?

The shout came from Andrew Masangkay.

Q
After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard "huwag,
tulungan n'yo ako" coming from the mouth of the late Andrew Masangkay, what happened next?
A

Ariel Caranto and I ran towards the back portion of the house.

And what did you see?

And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Masangkay.

Q
Will you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the
late Andrew Masangkay and how Benjamin Ortega, Jr. proceeded with the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was "nakakabayo" and with his right
hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward and
upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q

How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?

I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches tall.
27 There was no testimony as to how the attack was initiated. The accused and the victim were already grappling when Quitlong
arrived. Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength. Hence, Ortega is
liable only for homicide, not murder.
Second Issue:

Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court "is based on mere assumption and conjecture . . ." 28 Allegedly,
the medico-legal finding that the large airway was "filled with muddy particles indicating that the victim was alive when the
victim inhaled the muddy particles" did not necessarily mean that such muddy particles entered the body of the victim while he
was still alive. The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang nang saksak nang mapatay na si Andrew ni
Benjamin Ortega, Jr." Thus, the prosecution evidence shows Masangkay was already "dead" when he was lifted and dumped into
the well. Hence, Garcia could be held liable only as an accessory. 29
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that criminal liability shall be
incurred by "any person committing a felony (delito) although the wrongful act done be different from that which he intended."
The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actor's wrongful acts. In assisting

Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that
of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide. 30 Although
Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body into the
well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse than that
intended.
True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by the NBI medico-legal
officer showed that the victim at that time was still alive, and that he died subsequently of drowning. 31 That drowning was the
immediate cause of death was medically demonstrated by the muddy particles found in the victim's airway, lungs and stomach.
32 This is evident from the expert testimony given by the medico-legal officer, quoted below: 33
ATTY. ALTUNA:
Q
Will you please explain this in simple language the last portion of Exhibit N, beginning with "tracheo-bronchial tree",
that is sentence immediately after paragraph 10, 2.5 cms. Will you please explain this?
A

The trancheo-bronchial tree is filled with muddy particles.

I ask you a question on this. Could the victim have possibly get this particular material?

No, sir.

What do you mean by no?

A person should be alive so that the muddy particles could be inhaled.

Q
So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at
that time, the person is still alive?
A

Yes, sir.

Second point?

The heart is pale with some multiple petechial hemorrhages at the anterior surface.

And this may [be] due to stab wounds or asphyxia?

These are the effects or due to asphyxia or decreased amount of blood going to the heart.

This asphyxia are you referring to is the drowning?

Yes, sir.

Next point is the lungs?

The lungs is also filled with multiple petechial hemorrhages.

What could have caused this injury of the lungs?

This is due to asphyxia or the loss of blood.

Are you saying that the lungs have been filled with water or muddy particles?

Yes, sir.

Q
And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your
Report?
A

Yes, sir.

Continuing this brain and other visceral organs, pale. What is this?

The paleness of the brain and other visceral organs is due to loss of blood.

And, of course, loss of blood could be attributed to the stab wound which is number 13?

Yes, sir.

And the last one, under the particular point "hemothorax"?

A
It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was
admixed with granular materials?
Q

And what cause the admixing with granular materials on said particular portion of the body?

Could be muddy particles.

Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?

It's due to stab wounds those muddy particles which set-in thru the stab wounds.

Q
So, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body
and caused admixing of granular materials?
A

Yes, sir.

Continuing with your report, particularly, the last two portions, will you please explain the same?

The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.

And what could have cause the same?

[T]he stab wound of the abdomen.

The last one, stomach 1/2 filled with muddy particles. Please explain the same?

The victim could have taken these when he was submerged in water.

What is the take in?

Muddy particles.

And he was still alive at that time?

Yes, sir. (Emphasis supplied)

A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause
of death: 34
1.
The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to save himself from drowning.
2.

Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum).

3.

Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered.

4.

Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found.

5.

Presence of water in the middle ear.

The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his
tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of the well. Even his stomach was halffilled with such muddy particles. The unrebutted testimony of the medico-legal officer that all these muddy particles were
ingested when the victim was still alive proved that the victim died of drowning inside the well.

The drowning was the direct, natural and logical consequence of the felony that. Appellant Garcia had intended to commit; it
exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be
convicted of homicide although he had no original intent to kill. 35
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are,
however, two legal obstacles barring his conviction, even as an accessory as prayed for by appellants' counsel himself.
First.
The Information accused Appellant Garcia (and Appellant Ortega) of "attack[ing], assault[ing], and stab[bing]
repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA." The
prosecution's evidence itself shows that Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant
Ortega. His responsibility relates only to the attempted concealment of the crime and the resulting drowning of Victim
Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation
against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this
constitutional right. 36 Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:
(2)
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Emphasis supplied)
In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a woman "deprived of reason or otherwise
unconscious" where the information charged the accused of sexual assault "by using force or intimidation," thus:
The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution sought
to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is not clear. But whatever it was, it has
not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of
reason or unconscious, such conviction could not have been possible under the criminal complaint as worded. This described the
offense as having been committed by "Antonio Pailano, being then provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita
Ibaez, 15 years of age, against her will'. No mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of
reason and not through force and intimidation, which was the method alleged would have violated his right to be informed
of the nature and cause of the accusation against him. [Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This
right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against him.
Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair
and underhanded. This right was, of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified
seduction, which had not been alleged in the criminal complaint against him. In the case of People vs. Montes, [fn: 122 SCRA
409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of and acquitted was not homicide but rape. More to the point is Tubb
v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held by him in
trust with the obligation to return the same under Article 315, paragraph l(b) of the Revised Penal Code, but was convicted of
swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information. The
Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges
murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in "concealing . . . the body of the crime, . . .
in order to prevent its discovery," he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the
Revised Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega, 38 the latter's sister,
Maritess, being his wife. 39 Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the
Revised Penal Code:

Art. 20. Accessories who are exempt from criminal liability. The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and
sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.
On the other hand, "the next preceding article" provides:
Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having
participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:
1.

By profiting themselves or assisting the offender to profit by the effects of the crime.

2.
By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its
discovery.
3.
By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the
life of the Chief Executive, or is known to be habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the
aforequoted exempting provision of the Revised Penal Code. This Court is thus mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven both by
documentary evidence and by the testimony of Melba Lozano, a sister of the victim. 38 Of the expenses alleged to have been
incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred in
connection with the death of the victim. 39 However, in line with current jurisprudence, 40 Appellant Ortega shall also indemnify
the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the fact of death and appellant's
responsibility therefor. 43
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium
period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega. Because he is entitled to the
benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY
of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the victim
P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate release
from confinement is ORDERED unless he is detained for some other valid cause.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Footnotes
1

Original Records, pp. 183-198; rollo, pp. 29-44.

2
3

Original Records, p. 1; rollo, p. 8.

Atty. Ricardo Perez of the Public Attorney's Office.

Original Records, p. 25.

6
After promulgation of judgment, John Doe was identified as Romeo Ortega and the latest trial court's Order in this case
was for the state prosecutor to conduct a preliminary investigation to determine his liability. (Original Records, pp. 207-210).
7

Original Records, p. 198; rollo, p. 44; Decision, p. 16.

Original Records, p. 205.

Ibid., pp. 185-187.

11

Ibid., pp. 11-20.

12

TSN, August 16, 1993, pp. 7-19.

13

Ibid., pp. 21-22.

14

Ibid., pp. 23-25.

15

Ibid., pp. 26-35.

16

TSN, September 22, 1993, pp. 3-22.

17

Original Records, pp. 197-198; rollo, pp. 43-44; Decision, pp. 15-16.

18

Rollo, p. 63; original text in upper case.

19

Original Records, pp. 196-197; rollo, pp. 42-43; Decision, pp. 14-15.

20

People vs. De Guzman, 188 SCRA 405, 410-411, August 7, 1990.

21
People vs. Gabris, 258 SCRA 663, 671, July 11, 1996 citing the case of People vs. Vallena, 244 SCRA 685, 691, June
1, 1995; People vs. Jaca, 229 SCRA 332, January 18, 1994; People vs. Tismo, 204 SCRA 535, 552, December 4, 1991; and
People vs. Uycoque, 246 SCRA 769, 779, July 31, 1995.
22

TSN, September 22, 1993, pp. 6-14.

23

Ibid., pp. 4-6.

24

People vs. Casingal, 243 SCRA 37, 46, March 29, 1995.

25
People vs. Escoto, 244 SCRA 87, 97-98, May 11, 1995 citing the cases of People vs. Martinez, 96 SCRA 714, March
31, 1980 and People vs. Cabiling, 74 SCRA 285, December 17, 1976.
26

TSN, February 12, 1993, pp. 11-15.

27

TSN, October 27, 1993, p. 12.

28

Rollo, p. 64.

29

Ibid., pp. 65-66.

30

Paragraph no. 2 of Article 19 of the Revised Penal Code provides for accessories' manners of participation:

Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having
participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:
1.

By profiting themselves or assisting the offender to profit by the effects of the crime.

2.
By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its
discovery.
3.
By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder or attempt to take the life
of the Chief Executive, or is known to be habitually guilty of some other crime.
Under this Article, it is required that: (1) the accessory should have knowledge of the crime, (2) he did not take part in its
commission as principal or accomplice, and (3) subsequent to its commission, he took part in any of the three ways enumerated
above.

31
The exact words used by the medico-legal officer were: "The multiple stab wounds sustained by the victim and
asphyxia by submersion in water." (TSN, April 16, 1993, p. 8).
32

TSN, April 16, 1993, pp. 20-24.

33

TSN, April 16, 1993, pp. 20-24.

34

Pedor Solis, Legal Medicine, 1987, p. 448.

35
Aquino, The Revised Penal Code, 1987 edition, Volume 1, p. 70 citing Pico vs. U.S., 57 L. Ed. 812, 40 Phil. 117, 15
Phil. 549.
36
People vs. Guevarra, 179 SCRA 740, 751, December 4, 1989 citing the cases of Matilde, Jr. vs. Jabson, 68 SCRA 456,
461, December 29, 1975 and U.S. vs. Ocampo, 23 Phil. 396.
37

169 SCRA 649, 653-654, January 31, 1989.

38

TSN, June 14, 1993, p. 39; TSN, August 16, 1993, p. 9.

39

TSN, October 13, 1993, p. 16.

38
The following receipts were offered as evidence: (1) receipt of the Diocese of Lucena for funeral and electricity charges
(350.00); (2) receipt for transportation expense for the transfer of remains of Andre Mar Masangkay (3,500.00); (3) receipt of
Funeral Helen for home and coach services (5,000.00); (4) receipt of the Diocese of San Pedro Bautista Parish for mortuary rental
(350.00); (5) receipt of the Most Holy Redeemer Perish for use of mortuary (2,590.00); and (6) receipt of La Funeraria Paz for
their services (20,000.00).
39
People vs. Cayabyab, G.R. No. 123073, June 19, 1997 citing the cases of People vs. Rosario, 246 SCRA 658, 671, July
18, 1995 and People vs. Degoma, 209 SCRA 266, 274, May 22, 1992.
40
People vs. Quinao, et al., G.R. No. 108454, March 13, 1997; People vs. Azugue, G.R. No. 110098, February 26, 1997;
People vs. Ombrog, G.R. No. 104666, February 12, 1997.
43

People vs. Cayabyab, supra.

THIRD DIVISION
G.R. No. 72964

January 7, 1988

FILOMENO URBANO, petitioner,


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

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where
the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio
looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police
station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went
to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to
Dr. Mario Meneses because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San
Fabian, Pangasinan on October 23, 1980 and found the following:
1

-Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal
examination, as it was already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00
for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian
Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:
xxx

xxx

xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy.
councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier
accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and
promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p.
87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at
Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When
admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to
Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's
palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows:
Date Diagnosis

tion of respiration and HR after muscular spasm.

11-14-80 ADMITTED due to trismus

02 inhalation administered. Ambo bag resuscita-

adm. at DX TETANUS

tion and cardiac massage done but to no avail.

1:30 AM Still having frequent muscle spasm. With diffi-

Pronounced dead by Dra. Cabugao at 4:18 P.M.

#35, 421 culty opening his mouth. Restless at times. Febrile

PMC done and cadaver brought home by rela-

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit
Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to
suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years,
FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to
indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of

insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the
decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs
of the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay
Captain Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to
such position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central
Luzon including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were
closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the
ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation
canals with some companions;
That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred:
(1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..."
Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the
natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch
incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the
hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's
unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of
his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away
from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in
the process of healing got infected with tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the
wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm
(tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4,
par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without
his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November,
1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound
had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 2021, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that
Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to
his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the
infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the
symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from
the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:
xxx

xxx

xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by
plaintiffs-appellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for
the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act
or default that an injury to some person might probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until
his death which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56
days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe
disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the
commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the
commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle
involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury.
In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon
the major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of
the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles
and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli
produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or
tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central
nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is
usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72
hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle
of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in
hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms
of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically
probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on
the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should
have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present.
Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance
surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by
the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused
the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was
wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to
do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or
give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the
injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for
such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in
injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932).
(at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is
guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the
victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise
agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses
is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127
SCRA 16).
We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather
unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a
person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al.
(G.R. No. 74041, July 29, 1987), we said:
xxx

xxx

xxx

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

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

September 14, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
FRANCISCO ABARCA, accused-appellant.

SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca
to death for the complex crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing
the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to
inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement
informing us that he wished to continue with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx

xxx

xxx

The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated
Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an
unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times
KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot
wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA
AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which
otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution
which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado
which prevented their death. 1
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On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows:

Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently
began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in
Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to
go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went
back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn,
Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence
at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and
Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the builtin cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there
at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to
find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found
Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina
Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by
the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and
hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh.
A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also
exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold
Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He
spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows:
xxx

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xxx

WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with
double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does
not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation
to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant
spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in
case of insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was
away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court
believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical
reduction or commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila.
SO ORDERED. 3
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The accused-appellant assigns the following errors committed by the court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF
CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4

The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under
exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having
surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the
act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of
age, and their seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity
of the other spouse shall not be entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the
accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went
out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married
person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or
both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the
accused-appellant of murder, therefore erred.
Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having
sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the
continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall
kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should
commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming
the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by
the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the
accused's rage.
It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said:
xxx

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As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely
provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally
married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and
shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in
case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused
who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may
be is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection
of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted,
the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein,
amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly
lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would
make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense,
and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation
would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the
crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a
circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense
charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules
of Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code
(Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we
think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate
crime.
xxx

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xxx

We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a
privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances
therein mentioned. ... 7
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xxx

Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by
either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold
Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a
finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of
reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The
accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for
all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle
upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable
for frustrated murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not
performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that
before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve
him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable
under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or
negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing,
with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to
fourteen days based on the medical certificate estimating her recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its
medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21
days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these
penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization
expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs.
IT IS SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.
Footnotes
1

Rollo, 10-11.

Id., 88-89.

People v. Araquel, 106 Phil. 677 (1959).

Supra.

Supra, 681-683.

3
Id., 23-24; penned by Regional Trial Court Judge
Auxencio C. Dacuycuy.

Supra.

Article 4 of the Code provides as follows:

Brief for Accused-Appellant, rollo, 45.

Art. 4. Criminal liability.-Criminal liability shall be incurred:


1.

By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

2.
By any person performing an act which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

10
Brief for the Accused-Appellant. The statement is translated as follows: "Those not concerned, get out." See T.S.N.,
session of November 28, 1985, 17-18.
11

T.S.N., session of October 17, 1984, 24.

12

Record, 29.

13

REV. PEN. CODE, supra, art, 71; see supra, art. 48.

FIRST DIVISION
G.R. No. L-36858 June 20, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MACARIO A. ULEP, accused-appellant.
The Solicitor General for plaintiff-appellee.
Castor Naval for accused-appellant.
GANCAYCO, J.:
A man must love his wife. He must not lift a finger to hurt her. Indeed he must be her protector. When against this unwritten rule
he beats her, he ceases to be a man. He becomes a beast. And the law imposes the supreme penalty when in the process he kills
her. It is parricide pure and simple.
This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos Norte, Second Judicial District. He was
sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the deceased in the amount of P12,000.00 and
to pay the costs in a decision of March 20, 1973.
The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San Nicolas, Ilocos Norte, one Asuncion Pablo
Ulep died as a result of physical injuries inflicted upon her on that very day by her husband, accused Macario Ulep. The
following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of the said death of Asuncion Pablo who
allegedly died of a heart attack. The Chief of Police and the Rural Health Officer went to the house of the deceased and there they
saw the body on a bamboo bed surrounded by relatives, friends, and the husband of the deceased, Macario. The Chief of Police
suggested that an autopsy be conducted but the husband refused to allow the same. However, the daughter of the deceased by a
previous marriage asked for a day or two to decide on her preference.
At the behest of the daughter, the request for an autopsy was made shortly before the burial. Accordingly, the police chief and Dr.
Eliseo Bonoan, a physician, caught up with the funeral Procession at the Catholic cemetery and thereupon conducted an autopsy
on the deceased.
The autopsy reports read as follows:
POSTMORTEM EXAMINATION

Nationality:

Filipino

Name:

ASUNCION PABLO ULEP

Address: No. 24, San Nicolas, Ilocos Norte

Age:

42

Date:

May 25, 1970

PATHOLOGICAL DIAGNOSIS
SKIN:
A rectangular area of about 1" x 3" bluish black in color was noted on the upper half, anterior aspect of the arm, left.
SKELETAL SYSTEM:

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

CAUSE OF DEATH:
CARDIAC ARREST
PRIMARY SHOCK.
(Exh. D, p. 16, rec.). 1
Two weeks after the burial, two (2) constabulary sergeants investigated Macario Ulep. A statement was prepared and signed by
the accused and was subsequently sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this statement, marked as Exhibit "A",
he admitted that he caused the death of his wife by elbowing her because his wife was then drunk and was uttering indecent
words. The following day, PC sergeant Damian Bautista of Camp Juan, Laoag City conducted another investigation of accused
Macario Ulep. His statement was reduced to writing and then subscribed to before Fiscal Abaya. He reiterated that the cause of
death of his wife, Asuncion Pablo, was his elbowing her on her breast. This statement was marked Exhibit "B".
Ulep narrated that this elbowing and attack took place at their home at 5:30 in the afternoon. She vomitted and then went to bed,
The accused then left for the fields and returned at around 9:00 in the evening and found his wife dead on her bed. He reported
this death to their barrio captain.
Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted his statement in court by narrating that more
than a year before that, and while his wife went to have their palay milled, their bullcart loaded with sacks of rice turned upside
down and pinned his wife on her breast. With the pain in her chest, she was treated by a country quack doctor or "arbularyo."
The accused took exception to his conviction when he raised the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF ASUNCION PABLO WAS DUE TO THE
ELBOW BLOWS BY THE ACCUSED-APPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS,
EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF
ON HIS PART.
II
THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF DEATH OF SAID ASUNCION PABLO WAS
DUE TO A LONG STANDING PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY DR. PEDRO
BLANCO FOR THE DEFENSE.
III
THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM OF THE CRIME OF PARRICIDE.
Our primary concern is to determine the cause of death of Asuncion Pablo, the wife, of the accused. Was her death a result of
cardiac arrest and primary shock due to fractured ribs? The appellant alleges that the gradual weakening of the heart due to a long
standing illness of the body system caused the cardiac arrest which claimed the life of Asuncion Pablo.
The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who conducted an autopsy at the behest of a
daughter of tile deceased by a previous marriage. The husband who previously denied permission to conduct an autopsy was
present when the autopsy was performed shortly before the body was buried at the cemetery of San Nicolas, Ilocos Norte. In the
necropsy report of Dr. Bonoan, the cause of death was manifestly due to cardiac arrest and primary shock. We agree and see no
fault in this finding made in the necropsy report of Dr. Bonoan.
The defense took exception to Dr. Bonoan's testimony that the fractures in the chest could have been caused by blows or physical
pressure. Could such injuries not have been inflicted by elbow blows when the victim was standing or by knee or feet blows
when the victim was lying on her back or was sitting with her back against the wall?
While the accused admitted that he delivered several elbow blows on the chest of his wife immediately before her death and the
prosecution attributed these blows as the proximate cause of the cardiac arrest and primary shock which resulted in the wife's
death, the defense assails this theory of the prosecution in the following manner:
First, there were no contusions on the chest of the victim. This indicates that the elbow blows were not of sufficient force to
fracture the ribs. This is so because a fracture necessarily results in the extravasation of blood in the fractured area and it is the
extravasated blood that causes the swelling or contusion. 2 Dr. Blanco attributes the absence of swelling or contusion on the
chest, where the fractures were found, to the fact that the fracture conditions Were of long standing; that is, some repairs has
happened and that sufficient time have elapsed for the swelling to disappear (t.s.n., p. 180).
Second, even on the theory that fractures of the ribs as that found by Dr. Bonoan were present, the same could have not caused
cardiac arrest and primary shock. This is so because only extravasated blood was present around the immediate area of the
fractures, This means that the fractures were not depressed or that the fractured ends did not cave-in, so as to injure the heart and
impede its functions to cause cardiac arrest. The claim of Dr. Bonoan that the chest is pliant and is like an accordion which can be
compressed is puerile to say the least. Even so, the elbow blows of the accused could not have caused a compression of the chest
wall, no matter how pliant it could be. And even on the theory that the fractures were caused by stamping the foot on a piece of
wood placed on the chest, while the victim was lying on her back, still the fractures could not have injured the heart or impede its
functions to cause cardiac arrest, because the fractures, were not depressed fractures or cave-in fractures. The fractures merely
caused the extravasation of blood within the fractured areas. And neither would the fractures cause primary shock because they
were merely complete fractures; which means a mere breakage that would not cause the stoppage of the heart, because it does not
tend to compress the heart. 3
And third, although the pleura or thoracic cavity was lacerated at the points of fracture, the same could not have caused cardiac
arrest or primary shock because the lacerations were limited to the pleura. The points of fracture did not cave-in or were not
depressed and they did not injure or impede the heart to cause cardiac arrest. Neither did the lacerations of the pleura cause

primary shock because blood did not spill into the pleura, which indicates that the hemorrhage was nil. This is so because the
serous fluid in the pleura -as not reddish.
On the contrary, the evidence of the prosecution shows that the deceased died of cardiac arrest because of the weakening of the
heart due to a long standing process or condition in her body system. Thus the theory of the defense is strengthened by the very
evidence of the prosecution. 4
Furthermore, both sides in this case took issue to the presence of 200 cc. of serous fluid in the pleura. The appellant claims that it
is not normal whereas the prosecution says that the pleura normally contains 100 to 200 cc. of serous fluid and that this is normal.
Anyway both agree that there should be enough serous fluid to lubricate the tissues.
The presence of 500 cc. of serous fluid in the abdominal cavity which, according to Dr. Blanco, the physician, witness for the
appellant, may be due to the chronic condition of the kidney like nephritis and edema or the hardening of the liver or a long
progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view when he said that the fluid was rather increased as
a result of the diffusion of the medicine used in the embalming. 6 We find cogent basis in the explanation given by Dr. Bonoan.

Another point raised in the necropsy report pertains to the presence of clotted blood in the heart and blood vessels as well as the
congestion of the meningeal vessels. The appellant bares that this is a sign of the hardening of the heart. Dr. Bonoan of the
prosecution disclosed that there were no signs of circulatory weakening and that blood clots were not found adherent to the heart
and such being the condition there could be no abnormality and thus he further declares that such clots are normally found in the
heart of a dead person or in any part of the circulatory system. 7
There is an admission by Dr. Blanco, the appellant's witness, that he has not "attended a case of fractured ribs" 8 and that he
explains cardiac failure as a "failing of the heart" and his further concept is that it is "the stopping of the heart." He says that such
stoppage could be due to trauma, such as a fracture of the ribs. 9
A resume of the evidence presented by the parties establishes the fact of death of Asuncion Pablo on May 21, 1970. She was
legally married to Macario Ulep, the appellant herein. The death, established in two affidavits, Exhibits "A" and "B," was caused
by said accused. In these affidavits, the appellant admitted that he elbowed and attacked his wife. This attack caused the complete
fracture of the 4th, 5th, 6th and 7th ribs on her left chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo on the same
evening of May 21, 1970. The trial judge observed: "There was never any attempt on the part of the accused to repudiate the
sworn statements wherein he admitted that the cause of death of his wife was his having elbowed her many times on her breast."
10
Having realized the gravity of his act, the appellant presented a witness to prove that sometime in February or March, 1969 his
wife was pinned down by a sack of rice and the side portion of a bullcart and was attended to by a town quack doctor called an
arbularyo. This witness said that two (2) ribs on each side of the chest were fractured, without stating which particular ribs were
so affected.
From all these observations, findings, and an incisive study of the necropsy report, the cause of death of the wife-victim in this
case is cardiac arrest and primary shock caused by the strong pressure applied on the upper front chest bone. This happens when
one steps, kneels or presses the body of a victim against a wall. The man-size blows coming from the elbow of the aggressor
upon a thin-framed woman can only bring about fatal results.
We find relevance in Wharton and Stilles' findings in their book, Medical Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the shock associated with the injury. The possibility of a person dying from the
shock attendant upon an injury which, by itself appears to be unimportant is attested by experience. No satisfactory explanation
of the cause of the shock seems to have been found, though it is due in some way to the upsetting of the nervous equilibrium of
the body. Shock from an injury may be fatal even when the blow leaves no trace behind it; as, for instance, when a person
receives a violent blow upon the pit of the stomach, or behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et al., 11
the deceased had received injuries to the abdomen by kick and blows, but there were no marks of bruises present, or anything to
show the cause of death. Death however, had followed twenty minutes after the maltreatment and was evidently due to the shock.
The prisoners were convicted of murder. 12
We have previously stated that:
Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if the blow delivered by the
accused
(a)

is the efficient cause of death; or

(b)

accelerated his death; or

(c)

is the proximate cause of death; then there is criminal liability. 13

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

WHEREFORE, with the above modification as to indemnity, the judgment appealed from is hereby AFFIRMED in all other
respects.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
EN BANC
G.R. No. L-34665

August 28, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
DONATO BINDOY, defendant-appellant.
Florentino Saguin for appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of Occidental Misamis to the penalty of twelve years and one day of
reclusion temporal, with the accessories of law, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the
costs. The crime charged against the accused is homicide, according to the following information:
That on or about the 6th of May, 1930, in the barrio of Calunod, municipality of Baliangao, Province of Occidental Misamis, the
accused Donato Bindoy willfully, unlawfully, and feloniously attacked and with his bolo wounded Emigdio Omamdam, inflicting
upon the latter a serious wound in the chest which caused his instant death, in violation of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his counsel in this instance contends that the court erred in finding
him guilty beyond a reasonable doubt, and in convicting him of the crime of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance arose in a tuba wineshop in the barrio market of Calunod,
municipality of Baliangao, Province of Occidental Misamis, started by some of the tuba drinkers. There were Faustino Pacas
(alias Agaton), and his wife called Tibay. One Donato Bindoy, who was also there, offered some tuba to Pacas' wife; and as she
refused to drink having already done so, Bindoy threatened to injure her if she did not accept. There ensued an interchange of
words between Tibay and Bindoy, and Pacas stepped in to defend his wife, attempting to take away from Bindoy the bolo he
carried. This occasioned a disturbance which attracted the attention of Emigdio Omamdam, who, with his family, lived near the
market. Emigdio left his house to see what was happening, while Bindoy and Pacas were struggling for the bolo. In the course of
this struggle, Bindoy succeeded in disengaging himself from Pacas, wrenching the bolo from the latter's hand towards the left
behind the accused, with such violence that the point of the bolo reached Emigdio Omamdam's chest, who was then behind
Bindoy.
There is no evidence that Emigdio took part in the fight between Bindoy and Pacas. Neither is there any indication that the
accused was aware of Emigdio Omamdam's presence in the place, for, according to the testimony of the witnesses, the latter
passed behind the combatants when he left his house to satisfy his curiosity. There was no disagreement or ill feeling between
Bindoy and Omamdam, on the contrary, it appears they were nephew and uncle, respectively, and were on good terms with each
other. Bindoy did not try to wound Pacas, and instead of wounding him, he hit Omamdam; he was only defending his possession
of the bolo, which Pacas was trying to wrench away from him, and his conduct was perfectly lawful.
The wound which Omamdam received in the chest, judging by the description given by the sanitary inspector who attended him
as he lay dying, tallies with the size of the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced Emigdio Omamdam's death, but the defendant alleges that it
was caused accidentally and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having seen the accused stab Omamdam with his bolo. Such
testimony is not incompatible with that of the accused, to the effect that he wounded Omamdam by accident. The widow testified
that she knew of her husband's wound being caused by Bindoy from his statement to her before his death.
The testimony of the witnesses for the prosecution tends to show that the accused stabbed Omamdam in the chest with his bolo
on that occasion. The defendant, indeed, in his effort to free himself of Pacas, who was endeavoring to wrench his bolo from him,
hit Omamdam in the chest; but, as we have stated, there is no evidence to show that he did so deliberately and with the intention
of committing a crime. If, in his struggle with Pacas, the defendant had attempted to wound his opponent, and instead of doing
so, had wounded Omamdam, he would have had to answer for his act, since whoever willfully commits a felony or a
misdemeanor incurs criminal liability, although the wrongful act done be different from that which he intended. (Art. 1 of the
Penal Code.) But, as we have said, this is not the case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant to the effect that Pacas and Bindoy were actually
struggling for the possession of the bolo, and that when the latter let go, the former had pulled so violently that it flew towards his
left side, at the very moment when Emigdio Omamdam came up, who was therefore hit in the chest, without Donato's seeing
him, because Emigdio had passed behind him. The same witness adds that he went to see Omamdam at his home later, and asked
him about his wound when he replied: "I think I shall die of this wound." And then continued: "Please look after my wife when I
die: See that she doesn't starve," adding further: "This wound was an accident. Donato did not aim at me, nor I at him: It was a
mishap." The testimony of this witness was not contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind, which, had it existed, would have greatly facilitated the solution
of this case. And we deem it well to repeat what this court said in United States vs. Carlos (15 Phil., 47), to wit:
The attention of prosecuting officers, and especially of provincial fiscals, directed to the importance of definitely ascertaining and
proving, when possible, the motives which actuated the commission of a crime under investigation.

In many criminal cases one of the most important aids in completing the proof of the commission of the crime by the accused is
the introduction of evidence disclosing the motives which tempted the mind of the guilty person to indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that the appellant is entitled to acquittal according to article 8,
No. 8, Penal Code. Wherefore, the judgment appealed from is reversed, and the accused Donato Bindoy is hereby acquitted with
costs de oficio. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and Imperial, JJ., concur.
EN BANC
G.R. No. L-32066

March 15, 1903

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee,


vs.
GONA (Mansaca), defendant and appellant.
Jose Ma. Capili for appellant.
Attorney-General Jaranilla for appellee.
OSTRAND, J.:
The defendant was charged before the Court of First Instance of the Province of Davao with the crime of homicide, the
information reading as follows:
That on or about October 26, 1928, in the municipal district of Pantukan, Province of Davao, Philippine Islands, as within the
jurisdiction of the court, the said accused voluntarily, illegally, and criminally and with a bolo which he then carried, assaulted
the Mansaca Mapudul, causing him a mortal wound on the left side of the neck and that as a consequence of said wound, the said
Mapudul died.
Upon trial the court below found the defendant guilty as charged in the information and taking into consideration the extenuating
circumstance of non-habitual intoxication, sentenced him to suffer twelve years and one of reclusion temporal with the accessory
penalties prosecuted by law to indemnity the heirs of the deceased in the sum of P1,000, and to the costs. From this sentenced the
defendant appealed.
It appears from the evidence that on the evening of October 26, 1928, a number of Mansacas celebrated a reunion in the house of
the Mansaca Gabriel. There seems to have been liberal supply of alcoholic drinks and some of the men present became
intoxicated, with the result that a quarrel took the place between the Mansaca Dunca and the defendant. Dunca and his son
Aguipo eventually left the house and were followed by Mapudul and one Award. The defendant left the house about the same
time with intention of assaulting Dunca, but in the darkness of the evening and in the intoxicated condition of the defendant, the
mistook Mapudul for Dunca and inflicated on him a mortal wound with a bolo.
There can no doubt that the defendant killed Mapudul and that he is guilty of the crime charged, but his attorney argues that in
view of the fact that said defendant had no intention to kill the deceased and committed the crime by mistake, he should have
been found guilty of homicide through negligence under paragraph 1 of article 568 of the Penal Code and not of the graver crime
of intentional homicide.
This contention is contrary to earlier decisions of this court. In these case of United State vs. Mendieta(34 Phil., 242), the court
said:
Even admitting that the defendant intended to injure Hilario Lauigan instead of Pedro Acierto, even that, in view of the mortal
wound which inflicted upon the latter, in no way could be considered as a relief from his criminal act. That he made a mistake in
killing one man instead of another, when it is proved that he acted maliciously and willfully, cannot relieve him from criminal
responsibility. Neither do we believe that the fact that he made a mistake in killing the wrong man should be considered as a
mitigating circumstances.
The appealed sentence is affirmed with the costs against the defendant. So ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.
EN BANC
G.R. No. L-25459

August 10, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
RAMON MABUG-AT, defendant-appellant.
Vicente Sotto for appellant.
Attorney-General Jaranilla for appellee.
ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-at the penalty of twelve years and one day cadena
temporal, with the accessories of the law, to indemnify the offended party in the sum of P700 and to pay the costs, for the crime
of frustrated murder.
The appellant appealed from this judgment, making two assignments of error as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder, and
2. In not giving any credit to the evidence presented by the defense, finding the defendant guilty beyond a reasonable doubt.
The evidence of the prosecution shows that the accused and Juana Buralo was sweethearts. Juana had been jealous of the accused
on account of the latter having frequently visited the house of one Carmen. Their relations were such that the accused invited

Juana to take a walk on the afternoon of August 9, 1925. Juana refused him, later sending him a note of excuse. On the third day,
or the night of August 11th, the accused went to the threshold of Cirilo Banyan's house where Juana Buralo had gone to take part
in some devotion. There the accused, revolver in hand, requested Francisco Abellon to ask Juana to come downstairs and as
Abellon refused to do so, the accused said: "If you do not want to go upstairs, I will get Juana and if anyone tries to defend her I
will kill him."
The accused waited until Juana and her niece Perfecta Buralo came downstairs, when they went in the direction of their house.
The accused, who was seen by the two girls, followed them without saying a word. It is only a short distance from the house
where the devotion took place to that of the offended party, the houses being adjacent. As the two girls were going upstairs, the
accused, while standing at the foot of the stairway, fired a shot from his revolver which wounded Perfecta Buralo, the bullet
passing through a part of her neck, having entered the posterior region thereof and coming out through the left eye, which was
completely destroyed. Due to proper medical attention, Perfecta Buralo did not die and is on e of the witnesses who testified at
the trial of this case.
The defense, without abandoning its allegation that the accused is not responsible for the crime, contends that the crime proven is
not frustrated murder but the discharge of a firearm, with injuries, it not having been proven that it was the accused's intention to
kill.
The relations existing between the accused and Juana Buralo, his disappointment at her not accepting his invitation to take a
walk, the fact that the accused, revolver in hand, went to look for Juana Buralo at the house where the devotion was being held,
later following her to her house, and especially having aimed at her person--the head--are facts which, in our opinion, permit of
no other conclusion than that, in firing the shot, it was the accused's intention to kill.
In the decision of this court in the case of United States vs. Montenegro (15 Phil., 1), it was held:
We do not doubt that there may be cases wherein the discharge of a firearm at another is not in itself sufficient to sustain a
finding of the intention to kill, and there are many cases in the books wherein the attendant circumstances conclusively establish
that on discharging a firearm at another the actor was not in fact animated by the intent to kill. But, in seeking to ascertain the
intention with which a specific act is committed, it is always proper and necessary to look not merely to the act itself but to all the
attendant circumstances so far as they are developed by the evidence; and where, as in the case at bar, a revolver is twice
discharged point-blank at the body of another, and the shots directed at the most vital parts of the body, it needs but little
additional evidence to establish the intent to kill beyond a reasonable doubt.
The fact that a person received the shot which was intended for another, does not alter his criminal liability. (Art. 1, par. 3, Penal
Code.)
The circumstances qualifying the murder alleged in the complaint are evidence premeditation and treachery. Even when there is
sufficient proof of premeditation (which we do not believe has been sufficiently established), yet, it cannot be considered as a
qualifying circumstance in the present case, because the person whom the accused intended to kill was not Perfecta Buralo, who
was hit by the bullet, but her aunt Juana Buralo. Had evident premeditation been proven, and there being no other qualifying
circumstance of frustrated murder present in this case, the acts should be held to be frustrated homicide and punished with the
maximum degree of the penalty prescribed by law. (Question 2, p. 28, 1890 ed., Viada's Penal Code.) But, the fact is that
treachery was proven and must be taken into consideration in this case, because the accused fired at Perfecta Buralo, employing
means which tended to insure the execution of the crime without running any risk himself from anyone who might attempt to
defend the said offended party. The treachery which, according to the evidence, would have attended the crime had the bullet hit
Juana Buralo was present in this case because the offended party Perfecta Buralo and Juana were going upstairs with their backs
towards the accused when he fired his revolver. The Supreme Court of Spain, in a decision of May 7, 1885 (Viada, do., pp. 29,
30), in holding a crime to be murder and not homicide, stated the following:
Considering that, according to the concept of treachery as it is explained in article 10 of the Civil code dealing with said
circumstance, it is evident that in firing the gun which Alejandro Sola was carrying which caused the death of Nazario Iigo, he
employed means which tended to insure the commission of the crime without any risk to himself arising from any defense that
might be made by the offended party, for neither the wounded party Bartolome Lobejano, at whom the shot was aimed in order to
kill him so that he might not testify as to the assault committed upon him shortly before, as held by the trial court, was not in a
position to defend himself in any way, nor could Nazario Iigo become aware of any attack so unjustified, rapid and unforeseen;
considering, further, that the purely accidental circumstance that as a result of the shot a person other than the one intended was
killed, does not modify, in the instant case, the elements constituting the crime of murder qualified by the treachery with which
Alejandro Sola acted, whether with respect to the wounded Bartolome Lobejano or to the deceased Nazario Iigo, for which
reason the rules of article 65 are not applicable herein, the culprit not having, in fact, committed a crime different from that which
he intended, taking into consideration the substantial and intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated murder, the doctrine sustained therein is applicable to the case at
bar so far as the concurrence of treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused having intended to kill and performed all the acts of execution, which
would have produced the crime of murder but which, nevertheless, did not produce it by reason of causes independent of his will.
(Art. 3, Penal Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that the facts enumerated above constitute the crime of frustrated
murder.
With the exception of the qualifying circumstance of treachery, we find no other aggravating circumstance.
The judgment appealed from being in accordance with the law and the facts proven, the same is hereby affirmed in all its parts
costs against the appellant. So ordered.
Avancea, C.J., Street, Villamor, Ostrand, Johns and Villa-Real JJ., concur.
EN BANC
G.R. No. L-38511

October 6, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, alias BUCOY, alias
FRISCO GUY), defendant-appellant.
W.A. Caldwell and Sotto and Astilla for appellant.
Office of the Solicitor-General Bengzon for appellee.
VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there
willfully, unlawfully and feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one
Yu Lon by suddenly giving him a fist blow on the back part of the head, under conditions which intended directly and especially
to insure, the accomplishment of his purpose without risk to himself arising from any defense the victim Yu Lon might make,
thus causing him to fall on the ground as a consequence of which he suffered a lacerated wound on the scalp and a fissured
fracture on the left occipital region, which were necessarily mortal and which caused the immediate death of the said Yu Lon.

After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer
reclusion perpetua, with the accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000,
without subsidiary imprisonment in case of insolvency, and to pay the costs.
Appellant's attorney de oficio makes the following assignments of error:
1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime
charged in the information.
2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial
court erred in finding that the appellant struck his supposed victim.
3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed
victim (facts which we specifically deny) the trial court erred in finding that the blow was dealt from the victim's rear.
4. The trial court erred in finding that the identity of the appellant was fully established.
5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime
of murder, under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266
of the said Code.
It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to
talk on the sidewalk at the corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near
the outer edge of the sidewalk, with his back to the street. While they were talking, a man passed back and forth behind Yu Lon
once or twice, and when Yu Yee was about to take leave of his father, the man that had been passing back the forth behind Yu
Lon approached him from behind and suddenly and without warning struck him with his fist on the back part of the head. Yu Lon
tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell on the sidewalk. His assailants
immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost sight of him.
Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the
pursuit of Yu Lon's assailant. The wounded man was taken to the Philippine General Hospital, were he died about midnight. A
post-mortem examination was made the next day by Dr. Anastacia Villegas, who found that the deceased had sustained a
lacerated wound and fracture of the skull in the occipital region, and that he had died from cerebral hemorrhage; that he had
tuberculosis, though not in an advanced stage, and a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3 o'clock the next morning Sergeant Sol Cruz and other
detectives, accompanied by Yu Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could
recognize his father's assailant, and described him as being about five feet in height, 25 or 30 years old, with long hair and
wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on the case for three or four days he received
information that the accused might be the person that had assaulted Yu Lon, and on August 4th the accused was arrested by
detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the police station. The
accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were wearing
different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He
identified him not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers
(patillas), but also by his high cheek-bones and the fact that his ears have no lobes. The defendant was identified at the trial not
only by Yu Yee, but also by Chin Sam and Yee Fung.
With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and
whether or not be struck the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no
sufficient reason, after considering the evidence and arguments of counsel, to doubt the correctness of the findings of the trial
judge. The accused was identified by Yu Yee and two other Chinese, and although Yu Yee may have overstated at the trial some
of the facial peculiarities in the defendant that he claimed to have observed at the time of the incident, it must be remembered that
Yu Yee without hesitation picked the defendant out of a group of eleven persons as his father's assailant, and that he had
exceptional opportunities for observing his father's assailant, because while that person was walking back and forth behind Yu
Lon, Yu Yee was facing the assailant.
We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question
unworthy of credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a
15-year old boy, Dominador Sales.

As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the
expert testimony shows that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as
result thereof the deceased may have fallen backwards. Another consideration is that sidewalks almost invariably slope towards
the pavement, and this being true, when the deceased straightened up, he naturally tended to fall backwards. The evidence leaves
no room for doubt that the accused struck the deceased on the back of the head, because when the deceased was assaulted he and
Yu Yee were standing on the sidewalk, facing each other, and if the accused had not struck the deceased on the back of the head,
it would have been necessary for him to go between the deceased and Yu Yee. Since the accused struck the deceased from behind
and without warning, he acted with treachery. "There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution,
without risk to himself arising from the defense which the offended party might make." (Article 14, No. 16, of the Revised Penal
Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with
article 266 of the Revised Penal Code, or for slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done be different from that which he intended; but in order that a person
may be criminally liable for a felony different from that which he proposed to commit, it is indispensable that the two following
requisites be present, to wit: (a) That a felony was committed; and (b) that the wrong done to the aggrieved person be the direct
consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29 Phil., 14 U.S. vs. Diana,
32 Phil., 344.)
In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region,
notwithstanding the fact that the blow leaves no outward mark of violence; that where death result as the direct consequence of
the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death,
does not relieve the illegal aggressor of criminal responsibility; that one is not relieved, under the law in these Islands, from
criminal liability for the natural consequences of one's illegal acts, merely because one does not intend to produce such
consequences; but that in such cases, the lack of intention, while it does not exempt from criminal liability, is taken into
consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the
death of Yu Lon. There is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of
defendants felonious act, and the fact that the defendant did not intend to cause so great an injury does not relieve him from the
consequence of his unlawful act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil., 22).
The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the
defendant be convicted of murder when he did not intend to kill the deceased?
We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death
was the direct consequence of defendant's felonious act of striking him on the head. If the defendant had not committed the
assault in a treacherous manner. he would nevertheless have been guilty of homicide, although he did not intend to kill the
deceased; and since the defendant did commit the crime with treachery, he is guilty of murder, because of the presence of the
qualifying circumstance of treachery.
The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosia and the mitigating
circumstance of not having intended to cause so great an injury:
Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of
article 9 of the Penal Code, because the former depends upon the manner of execution of the crime and the latter upon the
tendency of the will towards a definite purpose, and therefore there is no obstacle, in case treacherous means, modes or forms are
employed, to the appreciation of the first of said circumstances and simultaneously of the second if the injury produced exceeds
the limits intended by the accused; and for that reason it cannot be held in the instant case that this mitigating circumstances
excludes treachery, or that the accused, being chargeable with the death of the offended party, should not be liable due to the
voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity between the act
intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court speaking through Chief Justice Arellano said:
In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from
making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the
purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which
might have arisen from an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause
so great an evil as that which resulted, but this does not neutralize that other qualifying circumstance of the resulting death,
because if there was no alevosia for the purpose of killing there was alevosia for the purpose of the illtreating. The means
employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe means of
illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it
is a qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the
criminal act itself, in whatever sense this be taken.
The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and
there being present in this case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to
seventeen years, four months, and one day of reclusion temporal. As thus modified, the decision appealed from is affirmed, with
the costs against the appellant.
Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.
SECOND DIVISION
G.R. No. 103119

October 21, 1992

SULPICIO INTOD, petitioner,

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

xxx

xxx

2.
By any person performing an act which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made
the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were
sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in
its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2),
Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3.,
Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about
doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not
hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School,
recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or
carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of
Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the
commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b)
ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an
impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in
violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and
(4) the consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control
prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with
the intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the
victim was not present in said place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill,
aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different
place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result
of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts
are unknown to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not
pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it
becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows
out of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In
disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what
was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil;
intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside.
However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of
attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a
difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable.
Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for
were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the
offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility
defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs.
Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter
without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved
with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It
held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as
suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In
disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the
principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of
legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new nonstatutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements
of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a
crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any
crime neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such
thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is
found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible
crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally
liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals
holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as
defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social

danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto
mayor, together with the accessory penalties provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.
THIRD DIVISION
G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision1 of the
Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of
Qualified Theft, and its Resolution2 dated March 5, 2004 denying petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before
the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all employees of
MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free access
inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and without
the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited
in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment
made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated
amount of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as
follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check
Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases
from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing,
merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from
one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega
Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to
make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an
employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform
Capitle that the subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia,
a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace
the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the
matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO
check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.4 Baby Aquino further testified
that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced.5 Verification from
company records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she
had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained
that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to
have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity
of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didnt
know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment
operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder
by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's
plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO
check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check
replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her
husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she
decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went
on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that
she was getting cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10,000.00
marked money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave
P5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been
watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and
dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a
criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of
Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped
collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that,
on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that time, and asked that she
accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General
Hospital, Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in
Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house
of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her
job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the
phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed
to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never
been to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded
to Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep. After
ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, "What is this?" Then,
the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia
y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of them is
hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads,
thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto, but the
same was denied per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA.
The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft
defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and,
instead, appropriated it for herself; (2) said property belonged to another the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking
and further shown by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done
without the owners consent petitioner hid the fact that she had received the check payment from her employer's customer by
not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor
of force upon things the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the

company; and (6) it was done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments
from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the
theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article
309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value,
as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a
person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him.
The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of
an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code,
because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are
impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him,
the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the
penalty of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2)
that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2)
of the Revised Penal Code was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1) the
commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b)
ineffectual.
That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in
order to qualify the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control
prevent the consummation of the intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the
coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot
be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly
enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of
said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement
for the dishonored check, is of no moment. The Court held in Valenzuela v. People12 that under the definition of theft in Article
308 of the Revised Penal Code, "there is only one operative act of execution by the actor involved in theft the taking of
personal property of another." Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of
the law that theft is already "produced" upon the "tak[ing of] personal property of another without the latters consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when
there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of
execution. x x x

xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains
possession of the thing, even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its
consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for
Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment in
this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was no
longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash
as replacement for the check was hatched only after the check had been dishonored by the drawee bank. Since the crime of theft
is not a continuing offense, petitioner's act of receiving the cash replacement should not be considered as a continuation of the
theft. At most, the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen
proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and
separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information,
the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at
all, that fraudulent scheme could have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003,
and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is
sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify 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
Chief Justice
THIRD DIVISION
[G.R. Nos. 136592-93. November 27, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. MANOLITO PANCHO, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision[1] dated June 19, 1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan,
finding appellant Manolito Pancho guilty beyond reasonable doubt of rape in Criminal Case No. 837-M-96 and attempted rape in
Criminal Case No. 838-M-96. In Criminal Case No. 837-M-96, the trial court sentenced him to suffer reclusion perpetua, while
in Criminal Case No. 838-M-96, the penalty of 10 years and 1 day, as minimum, to 12 years, as maximum of prision mayor, was
imposed upon him.
The Informations in both Criminal Case Nos. 837-M-96 and 838-M-96 read:
For Criminal Case No. 837-M-96 (For Rape):
That in or about the month of August, 1994, in the municipality of Malolos, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, by means
of force, threats and intimidation and with lewd designs, have carnal knowledge of said Michelle L. dela Torre, 11 years of age,
against her will and without her consent.

Contrary to law.
For Criminal Case No. 838-M-96 (For Attempted Rape):
That in or about the month of December, 1995, in the municipality of Malolos, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, by means
of force, threats and intimidation and with lewd designs, have carnal knowledge of said Michelle L. dela Torre, 11 years of age,
against her will and without her consent.
Contrary to law.
Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the crimes charged.
Thereafter, trial ensued. The evidence for the prosecution shows that complainant Michelle dela Torre was born on April 2,
1984[2] to spouses Exequiela Lacanilao and Eduardo dela Torre. After Michelles father passed away, her mother contracted a
second marriage with appellant. Michelle and her two (2) brothers live with the couple at Look First, Malolos, Bulacan.
On August 1, 1994, at around 6:00 oclock in the morning, Michelle, who was then only ten years old, went home after spending
the night at her aunts house. While she was about to undress, appellant suddenly dragged her and forced her to lie down on the
floor. Although frightened, she struggled by kicking and boxing him. However, he forcibly removed her clothes and underwear.
Then he took off his clothing. Appellant started kissing and holding her breast and eventually had carnal knowledge of her. She
felt pain when he inserted his organ into her vagina which bled. She tried to resist but he held her both arms. He was on top of
her making push and pull movements for four (4) minutes. Then he dressed up, threatening to kill her should she complain or tell
anyone about the incident.
Sometime in December, 1995 at the familys new residence at Bayugo, Meycauayan, Bulacan, appellant arrived from work.
When Michelle opened the door and saw him, she got scared. While he was approaching her, she managed to hit him. Then she
attempted to jump out of the window, but he dragged her by her feet. At that instance, her uncle (Tito Onio) suddenly arrived.[3]
Immediately, appellant stopped, thus thwarting his bestial desire.
After sometime, Michelle mustered enough courage to report the incidents to her mother, but the latter casually ignored her. So,
she turned to her grandmother Natividad Lacanilao, who brought her, sometime in February, 1996, to the National Bureau of
Investigation (NBI) for examination by a medico-legal officer.[4] Thereafter, they proceeded to the Malolos Police Station
where she executed a sworn statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that she conducted a medico-genital examination of Michelle dela
Torre. Her findings,[6] which she confirmed on the witness stand, are as follows:
GENERAL PHYSICAL EXAMINATION:
Height: 132.0 cms
Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.
Breasts, developing, conical, firm. Areolae, brown, 2.5 cms in diameter. Nipples, brown, protruding, 0.5 cm in diameter.
No sign of extragenital physical injury noted.
GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately
tall, moderately thick, intact. Hymenal orifice, annular, admits a tube 2.0 cms in diameter with moderate resistance. Vaginal
walls, tight. Rugosities, prominent.
CONCLUSIONS:
1.

No evident sign of extragenital physical injury noted on the body of the subject at the time of examination.

2.
Hymen, intact and its orifice small (2.0 cms in diameter) as to preclude complete penetration by an average sized adult
Filipino male organ in full erection without producing any genital injury.
For his part, appellant strongly denied the charges, contending that it was impossible for him to commit the crimes considering
that during the incidents, his wife and her two sons were also inside the house.[7] Moreover, the charge of rape is totally belied
by the finding of the NBI Medico-Legal Officer that Michelles hymen has remained intact with no sign of extra-genital or
genital injuries.
After trial, the lower court rendered a Joint Decision dated June 19, 1998, the dispositive portion of which reads:
In view of all the foregoing and by proof beyond reasonable doubt, the Court hereby renders judgment as follows:
1.
With respect to Criminal Case No. 837-M-96, the Court finds the accused guilty beyond reasonable doubt of the crime
charged and hereby sentences accused MANOLITO PANCHO to suffer the penalty of RECLUSION PERPETUA.
2.
With respect to Criminal Case No. 838-M-96, the Court finds the accused guilty beyond reasonable doubt of the crime of
Attempted Rape, and hereby sentences accused MANOLITO PANCHO to suffer an imprisonment of TEN (10) YEARS and
ONE (1) DAY to TWELVE (12) YEARS.
3.

To indemnify the victim Michelle dela Torre the amount of P20,000.00 each case.

The period of the accuseds detention is credited in his favor.

SO ORDERED.
In this appeal, appellant ascribes to the trial court the following errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIMES OF RAPE AND ATTEMPTED RAPE, DESPITE INSUFFICIENCY OF EVIDENCE.
II
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP BY ACCUSED-APPELLANT.
As alleged in the Informations, the crimes charged were committed sometime in August, 1994 and December, 1995. Thus, the
governing law is Article 335[8] of the Revised Penal Code which, as amended by Republic Act No. 7659 (The Death Penalty
Law),[9] provides:
ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the
following circumstances:
1.

By using force or intimidation;

2.

When the woman is deprived of reason or otherwise unconscious; and

3.

When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.


xxx
The death penalty shall also be imposed if the crime or rape is committed with any of the following attendant circumstances:
1.
When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim.
2.
A.

xxx.

G.R. No. 136592 for rape:

Rape under the above provisions is either simple or qualified. It is qualified when the age of the victim (below 18) and her
relationship with the appellant are both alleged in the Information and proved.[10] In this case, the prosecution failed to allege in
the Information the qualifying circumstance that appellant is the victims step-parent. Thus, he may only be convicted of simple
rape.
Simple rape is committed under any of the following circumstances:
1.

By using force or intimidation;

2.

When the woman is deprived of reason or otherwise unconscious; and

3.

When the woman is under twelve years of age (statutory rape) or is demented.

In the Information, appellant is being charged of statutory rape considering that Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12) years old.[11] In statutory rape,
force, intimidation or physical evidence of injury is immaterial.[12] Where the girl is below 12 years of age, violence or
intimidation is not required, and the only subject of inquiry is whether carnal knowledge took place.[13]
As shown by her Certificate of Live Birth,[14] Michelle was born on April 2, 1984. Thus, on August 1, 1994 when the incident
took place, she was only 10 years and 3 months old.
Michelle identified appellant in open court as the culprit who raped her. She testified as follows:
FISCAL:
Q: Ms. Witness, you claim in your testimony that you were raped by your step father Manolito Pancho last August 1, 1994, will
you please tell this Honorable Court how Manolito Pancho raped you?
A:

About 6:00 oclock in the morning I went home, sir.

Q: And where is your home located?


A:

I went home at Look First, Malolos, Bulacan.

Q: And what happened when you went home at Look, Malolos, Bulacan?
A:

Manolito Pancho dragged me and forced me to lie on the floor.

Q: And what happened when after Manolito Pancho lay you on the floor?
A:

He took off all my clothes.

Q: And what clothes you are wearing at that time, Ms. witness?

A:

I was wearing a t-shirt and short, sir.

Q: What else Manolito Pancho removed?


A:

My clothes, short and panty, sir.

Q: And what was your appearance after these clothes were removed by Manolito Pancho?
A:

I was naked, sir.

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

He also took-off his clothes, sir.

Q: What clothes did he remove?


A:

His t-shirt, short and brief, sir.

Q: After Manolito removed all these: his short, brief and t-shirt, what did he do?
A:

He placed himself on top of me.

Q: And what happened after he placed himself on top of you?


A:

He inserted his penis on my vagina.

Q: Were you able to see his organ when he inserted it on your vagina?
A:

Yes, sir.

Q: What happened when he inserted his organ on your vagina?


A:

He was kissing me and touching my body, sir.

Q: What particular parts of your body did Manolito Pancho kiss and touch, Ms. witness?
A:

My both breasts, sir.

Q: And what did you feel when Manolito Pancho inserted his organ on your vagina?
A:

It hurts, sir.

Q: What motion did he do if you can still remember when Manolito Pancho was on top of you?
A: He was kissing me, touching me and then I tried to struggle against him but he was holding my both hands so that I could
not struggle.
Q: And what happened to your vagina after he inserted his penis?
A:

It bled, sir.

Q: How long did Manolito Pancho stay on top of you?


A:

Four (4) minutes, sir.

Q: And after four (4) minutes, what did Manolito Pancho do?
A:

I already dressed up because he already dressed-up, sir.

Q: And what did Manolito Pancho tell you, if any?


A:

He said, do not complain because if you do so, I am going to kill you.

Q: How are you related with Manolito Pancho, Ms. witness?


A:

My step father, sir.

Q: At the time you claimed that you were raped by Manolito Pancho, will you please tell this Honorable Court, how young were
you then?
A:

Ten (10) years old, sir.

Q: Do you have evidence to show Ms. witness that you are ten (10) years old at that time?
A:

My birth certificate, sir.

Q: Do you have with you your birth certificate?


A:

Yes, sir. (The grandmother is producing the Live Birth Certificate of the complainant Michelle dela Torre.)

Q: Will you please tell this Honorable Court what is your date of birth, Ms. witness?

A:

April 2, 1984.

Q: And you claimed that you were 10 years old when you were raped by Manolito Pancho?
A:

Yes, sir.

xxx.[15]
Michelles testimony is straightforward, unflawed by significant inconsistency, and unshaken by rigid cross-examination. It
deserves full faith and credence. In rape cases, the accused may be convicted solely on the testimony of the rape victim if her
testimony is credible, natural, and convincing.[16]
When a woman says she was raped, she says in effect all that is necessary to show that rape had been committed, and if her
testimony meets the test of credibility, the accused may be convicted on the basis thereof.[17] It bears stressing that Michelle, a
girl of tender years, innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to her step-father if
it were not true.
Appellant vigorously denied the charge, contending that per the Medical Report of Dr. Ida Daniel, Michelles hymen has
remained intact.[18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He disregards Dr. Daniels testimony that there are two types of hymen:
(1) one that remains intact even though there is penetration; (2) the other is lacerated after penetration.[20] We have ruled that in
rape cases the absence of fresh lacerations does not preclude the finding of rape,[21] especially when the victim is of tender
age.[22] Moreover, laceration of the hymen is not an element of the crime of rape.[23] Hymenal rupture or any indication of
vaginal laceration or genital injury is not necessary for the consummation of rape.[24] Its absence does not negate a finding of
forced sexual coitus.[25] For the rule is well settled that rape is consummated by the slightest penile penetration of the labia
majora or pudendum of the female organ.[26] Indeed, the evidentiary weight of the medical examination of the victim, as well as
the medical certificate, is merely corroborative in character and is not an indispensable element for conviction for rape.[27]
Appellants denial is an inherently weak defense. It has always been viewed upon with disfavor by the courts due to the ease
with which it can be concocted.[28] Inherently weak, denial as a defense crumbles in the light of positive identification of the
accused, as in this case. The defense of denial assumes significance only when the prosecutions evidence is such that it does not
prove guilt beyond reasonable doubt.[29] Verily, mere denial, unsubstantiated by clear and convincing evidence, is negative selfserving evidence which cannot be given greater evidentiary weight than the testimony of the complaining witness who testified
on affirmative matters.[30]
B.

G.R. No. 136593 for attempted rape:

Appellant also contends that his conviction of attempted rape in Criminal Case No. 838-M-96 is not supported by evidence.
Michelle testified that when appellant was coming near me, I hit him and I saw that our door was opened. I tried to jump and
that was the time he dragged and he held my feet.[31] Appellant and Michelle were in this snap situation when his Tito Onio
arrived.[32] Her testimony regarding this incident is quoted as follows:
FISCAL:
xxx
Q: And what happened in that place at Bayugo, Meycauayan, Bulacan?
A:

When the door opened I thought it was my mother and when I saw him I was scared, sir.

Q: And what happened when you saw Manolito Pancho?


A:

I closed the door, sir.

Q: Thereafter, what happened?


A: When he was coming near me, I hit him and I saw that our door was opened. I tried to jump and that was the time he
dragged and he held my feet.
Q: And what happened after Manolito Pancho held your feet?
A: When he was holding my feet I was not able to jump from the window and thats the time the door opened and then I saw
my uncle that is why the rape was not committed.
xxx.[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission
of rape directly by overt acts, but does not perform all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance.[34]
In this second case, the prosecution failed to prove that appellant started to rape the victim and had commenced the performance
of acts of carnal knowledge. He did not force her to lie down or remove her garment. In short, there was no showing that he did
commence at all the performance of any act indicative of an intent or attempt to rape the victim. What he did was to drag her
and hold her feet. At this juncture, we can not safely conclude that he was attempting to rape her.
In People vs. Campuhan,[35] we held that the thin line that separates attempted rape from consummated rape is the entrance of
the male organ into the labial threshold of the female genitalia. In that case, the accused was caught by the mother of the victim
kneeling on top of her. The victim testified that the accuseds organ merely touched but did not penetrate her vagina. We held
that he could not be convicted of statutory rape but only attempted rape.

In the instant case, appellant was merely holding complainants feet when her Tito Onio arrived at the alleged locus criminis.
Thus, it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Anent the award of damages in G.R. No. 136592, we observed that the trial court only awarded the victim civil indemnity in the
amount of P20,000.00. This must be corrected. We have consistently ruled that upon a finding of the fact of rape, the award of
civil indemnity is mandatory. If the death penalty is imposed, the indemnity ex delicto should be P75,000.00. Where, as here,
the death penalty is not decreed, the victim should be entitled to P50,000.00 only.[36]
In line with current jurisprudence, we also award the victim moral damages in the amount of P50,000.00 without need of
pleading or proof of the basis thereof.[37] The anguish and pain she has endured are evident.
WHEREFORE, the Decision dated June 19, 1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, in Criminal Case
No. 837-M-96, convicting appellant Manolito Pancho of rape and sentencing him to suffer the penalty of reclusion perpetua is
AFFIRMED, with the MODIFICATION that he is ordered to pay the victim, Michelle dela Torre, P50,000.00 as civil indemnity,
and P50,000.00 as moral damages.
In Criminal Case No. 838-M-96, the trial courts judgment convicting the appellant of attempted rape is REVERSED AND SET
ASIDE and a new one is entered ACQUITTING him of the crime charged.
Costs de oficio.
SO ORDERED.
Vitug, (Chairman), Corona, and Carpio-Morales, JJ., concur.
EN BANC
G.R. No. L-43530

August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding
him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an
additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the
law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets
of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods
located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The
accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up,
who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the SolicitorGeneral, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a
particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation
to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar
it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started
to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop
beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses
defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination
following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means
of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the
offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact
established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on
the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force
said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause
physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete
finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of
the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed
(accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt,
that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against
the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for
attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said
facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in
order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator

to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be
such that, without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not
punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation
to the offense."
Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such and such
overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to
serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted
robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of
Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the
dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25
Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions, inasmuch as the record
shows that several final judgments for robbery and theft have been rendered against him and in his favor, the mitigating
circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating
circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is
prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling,
committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and
one day of arresto mayor, with the accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
EN BANC

ARISTOTEL VALENZUELA y
NATIVIDAD,
Petitioner,

versus CARPIO,

PEOPLE OF THE PHILIPPINES


and HON. COURT OF APPEALS,
Respondents.

G. R. No. 160188
Present:
PUNO, C.J.,
QUISUMBING,
SANTIAGO,
GUTIERREZ,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
NACHURA, JJ.

Promulgated: June 21, 2007


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

DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having
performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated
theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by
this Court.
As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now
gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal
Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA,
by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw
petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with
cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
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 effected animo lucrandi and without the
consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the
will of the owner but merely that it should be without his consent, a distinction of no slight importance.[94]
Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the
deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated
stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over
the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of
the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen
property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated
intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the
commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the
location of the property, the number and identity of people present at the scene of the crime, the number and identity of people
whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been
housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into
account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has
been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of
property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts
establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the
attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking
has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated
framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition
of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on
Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for
legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law
on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found
favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of
his appeal on our acceptance of the 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.

DANTE O. TINGA
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice
ADOLFO S. AZCUNA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice