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G.R. No. L-10195 December 29, 1916

YU CON, plaintiff-appellee,
vs.
GLICERIO IPIL, NARCISO LAURON, and JUSTO SOLAMO, defendants-appellants.
Felix Sevilla y Macam for appellants.
Juan Singson and Dionisio Jakosalem for appellee.

the defendant Narciso Lauron was responsible for that negligence, as owner of the banca, pursuant
to articles 589, 587, and 618 of the Code of Commerce, the plaintiff therefore being entitled to
recover the amount lost. Judgment was rendered on April 20, 1914, in favor of the plaintiff and
against the defendants jointly and severally for the sum of P450, with interest thereon at the rage of
6 per cent per annum from the date of filing of the complaint, October 24, 1911, with costs. The
plaintiff was absolved from the defendant's counterclaim. From this judgment the defendants
excepted and at the same time moved for a new trial. Their motion was denied, to which ruling they
also excepted, and, through the proper bill of exceptions, entered and appeal to this Supreme Court.
In their brief they allege that the trial court erred:

ARAULLO, J.:

1. In applying articles 586, 587, and 618 of the Code of Commerce in favor of the plaintiff;

The purpose of the action brought in these proceedings is to enable the plaintiff to recover from the
defendants jointly and severally the sum of P450, which had been delivered by the plaintiff to the
first and third of the above-named defendants, master and supercargo, respectively, of
a banca named Maria belonging to the second defendant, to be carried, together with various
merchandise belonging to the plaintiff, from the port of Cebu to the town of Catmon of the Province
of Cebu. By virtue of the contract executed between the said second defendant and the plaintiff, the
money and merchandise were to be transported by the said craft between the points above-named in
consideration of the payment of a certain sum for each voyage. The money disappeared from said
craft during the night of October 18, 1911, while it was anchored in the port of Cebu and ready to sail
for its destination, Catmon, and was not afterwards found. The plaintiff based his action on the
charge that the disappearance of said sum was due to the abandonment, negligence, or voluntary
breach, on the part of the defendants, of the duty they had in respect to the safe-keeping of the
aforementioned sum.

2. In overruling the motion for default presented by the defendants and in sentencing the
defendants jointly and severally to pay the plaintiff the amount mentioned in the
judgment; and

The defendants, besides denying the allegations of the complaint, pleaded in special defense that the
plaintiff, at his own expense and under his exclusive responsibility, chartered the said banca, the
property of the defendant Lauron, for the fixed period of three days, at the price of P10 per diem, and
that, through the misfortune, negligence, or abandonment of the plaintiff himself, the loss
complained of occurred, while said banca was at anchor in the port of Cebu, and was caused by theft
committed by unknown thieves. They further alleged that said defendant Lauron, the owner of
the banca merely placed this craft at the disposal of the plaintiff for the price and period agreed
upon, and did not go with the banca on its voyage from Catmon to Cebu. As a counterclaim, the
defendants also asked that the plaintiff be ordered to pay the freight agreed upon, which had not yet
been paid, amounting to P80, plus the sum of P70, as an indemnity for the losses and damages
caused them by the attachment of the banca, issued at the instance of the plaintiff upon filing his
complaint. They also prayed for the additional sum of P100, for the deterioration of the said banca,
and also that of P200 for other deterioration suffered by the same since November, 1911, and which
had not bee paid for. Finally, the defendants asked to be absolved from the complaint.
Before commencing the hearing of this case, the defendants made a verbal motion asking that the
plaintiff be declared in default, with respect to the counterclaim filed by them in their answer. On the
same date, the plaintiff presented his answer to said counter claim, denying each and all of the
allegations thereof and of the defendants' special defense. The aforementioned motion was overruled
by the court, and the defendants excepted.
At the termination of the trial, the court, in view of the evidence adduced, held that there was no
room to doubt that the sole cause of the disappearance of the money from the said banca was the
negligence of the master and the supercargo, the defendants Ipil and Solamo, respectively, and that

3. In absolving the plaintiff from the defendant's counterclaim.

The evidence shows that the plaintiff Yu Con, a merchant and a resident of the town of San Nicolas,
of the city of Cebu, engaged in the sale of cloth and domestic articles and having a share in a shop, or
small store, situated in the town of Catmon, of said province, had several times chartered from the
defendant Narciso Lauron, a bancanamed Maria belonging to the latter, of which Glicerio Ipil was
master and Justo Solamo, supercargo, for the transportation of certain merchandise and some
money to and from the said town and the port of Cebu, that, on or about the 17th of October, 1911,
the plaintiff chartered the said banca from the defendant Lauron for the transportation of various
merchandise from the port of Cebu to Catmon, at the price of P45 for the round trip, which
merchandise was loaded on board the said craft which was then at anchor in front of one of the
graded fills of the wharf of said port; that in the afternoon of the following day, he delivered to the
other two defendants, Ipil, and Solamo, master and supercargo, respectively, of the aforenamed banca, the sum of P450, which was in a trunk belonging to the plaintiff and was taken charge
of by said two defendants, who received this money from the plaintiff, for the purpose of its delivery
to the latter's shop in Catmon for the purchase of corn in this town; that while the money was still in
said truck abroad the vessel, on the night of the said 18th of October, the time scheduled for the
departure of the Maria from the port of Cebu, said master and said supercargo transferred the P450
from the plaintiff's trunk, where it was, to theirs, which was in a stateroom of the banca, from which
stateroom both the trunk and the money disappeared during that same night, and that the
investigations, made to ascertain their whereabouts, produced no result.
The facts are also admitted by the aforementioned master and supercargo, two of the defendants,
that they received from the plaintiff said P450, which sum was in the latter's own trunk which was
placed outside the stateroom of the banca, for the reason, as they said, that there was no room for it
inside the stateroom; that these defendants therefore transferred said money to their trunk, which
was inside the stateroom, and that this trunk and the P450 therein contained disappeared from the
boat during the night of that same day; that said sum had not been found or returned to the plaintiff;
that the plaintiff, being on the banca in the afternoon of that day, when his trunk containing the
P450 was carried aboard, and seeing that said two defendants, who had the key of the trunk, has
removed said sum to their trunk inside the stateroom, charged them to take special care of the
money; that the master Ipil assured the plaintiff that there was no danger of the money being lost;

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and that, final, during the night in question, both the master and the supercargo and four cabin-boys
were aboard the banca.
It was likewise proven by the affidavits made by the master Ipil, the supercargo Solamo, and the
cabin-boys of said vessel, Juan Quiamco and Gabriel Basang, before the provincial fiscal of Cebu on
the day following the commission of the theft, which affidavits were presented at the trial as Exhibits
A, 3, 4, and 5, and by the testimony given at the trial by the defendants Ipil and Solamo, that both
said cabin-boys and the other two, Simeon Solamo, and said cabin-boys ad the other two, Simeon
Solamo, and Eulalio Quiamco, knew of the existence of the money in the trunk inside the stateroom
and witnessed its removal to said trunk from the plaintiff's; that the last two cabin- boys abovenamed, in company with the master and the supercargo, conveyed the plaintiff's trunk, in which the
money was previously contained, from the plaintiff's shop to the banca; and that no person not
belonging to the vessel knew that the money was in the trunk inside said stateroom.
According to the testimony of the master Ipil himself he slept outside the stateroom that night, but a
cabin-boy named Gabriel slept inside. The latter, however, was not presented by the defendants to be
examined in regard to this point, nor does it appear that he testified in respect thereto in his
affidavit, Exhibit 5, before referred to, presented by the defendant's own counsel. The master Ipil and
the supercargo Solamo also testified that they left the cabin-boy Simeon Solamo on guard that night;
but this affirmation was not corroborated by Solamo at the trial, for he was not introduced as a
witness, and only his affidavit, Exhibit 2, taken before the fiscal of Cebu on the day following the
commission of the crime, was presented by the defendants. This affidavit, which should have been
admitted and not rejected, as was done by the court and excepted to by the defendants, shows that
Simeon Solamo stated that he was not designated to do guard duty that night, but that on the
morning of the said 19th of October, that is, the next day, all agreed that affiant should say that he
was on guard, though it was not true that he was.
Finally, said two defendants, the master and the supercargo, gave no satisfactory explanation in
regard to the disappearance of the trunk and the money therein contained, from the stateroom in
which the trunk was, nor as to who stole or might have stolen it. The master of the banca merely
testified that they, he and the supercargo, did to know who the robbers were, for, when the robbery
was committed, they were sound asleep, as they were tired, and that he believed that the guard
Simeon also fell asleep because he, too, was tired. The second defendant gave the same testimony.
Both of them testified that the small window of the stateroom had been broken, and the first of
them, i.e., the master, stated that all the window-blinds had been removed from the windows, as well
as part of the partition in which they were, and that the trunk in which the money was contained
could have been passed through said small window, because, as this witness himself had verified, the
Chinaman's trunk, which differed but a little from the one stolen, could be passed through the same
opening. The chief pilot of the harbor of Cebu, Placido Sepeda, who officially visited the
said banca, also stated that the small wooden window of the stateroom was broken, and that he
believed that in breaking it much noise must have been produced. However, no evidence whatever
was offered by counsel for the defendants to prove that it might have been possible to remove the
trunk from the stateroom through the opening made by the breaking of the small window, neither
was the size of the trunk proven, in relation to the Chinaman's to which the defendant master
referred in his testimony, so that it might be verified whether the statement made by the latter was
true, viz., that it might have been possible to remove from the stateroom through said opening the
trunk in which the P450 were contained, which sum, the same as the trunk, its container, had not
been found, in spite of the investigation made for the purpose. Furthermore, it was not proven, nor is
there any circumstantial evidence to show, that the robbery in question was committed by persons
not belonging to the craft.

It is therefore beyond all doubt that the loss or disappearance, on the night aforementioned, of the
P450, the property of the plaintiff, which, were in the possession of the defendants, the master and
the supercargo of thebanca Maria, occurred through the manifest fault and negligence of said
defendants, for, not only did they fail to take the necessary precautions in order that the stateroom
containing the trunk in which they kept the money should be properly guarded by members of the
crew and put in such condition that it would be impossible to steal the trunk from it or that persons
not belonging to the vessel might force an entrance into the stateroom from the outside, but also they
did not expressly station some person inside the stateroom for the guarding and safe-keeping of the
trunk, for it was not proven that the cabin-boy Gabriel slept there, as the master of the vessel, Ipil,
stated, nor that the other Cabin-boy, Simeon Solamo, was on guard that night, for the latter
contradicted the statements made by the two defendants on this point. On the contrary, it was
proven by the master's own statement that all the people of the vessel, including himself and the
supercargo Solamo, slept soundly that night; which fact cannot, in any manner, serve them as an
excuse, nor can it be accepted as an explanation of the statement that they were not aware of what
was then occuring on board, if the trunk was actually stolen by outsiders and removed through the
small window of the stateroom, a detail which also was not proven, but, on the contrary, increases
their liability, because it is very strange that none of them, who were six and were around or near the
stateroom, should have heard the noise which the robbers must have made in breaking its window.
All of these circumstances, together with that of its having been impossible to know who took the
trunk and the money and the failure to recover the one or the other make the conduct of the two
defendants and of the other members of the crew of banca, eminently supicious and prevent our
holding that the disappearance or loss of the money was due to a fortuitous event, to force majeure,
or that it was an occurrence which could not have been foreseen, or which, if foreseen, was
inevitable.
It is unquestionable that the defendants Glicerio Ipil and Justo Solamo were the carriers of the said
P450 belonging to the plaintiff, and that they received this sum from the latter for the purpose of
delivering it to the store of the town of Catmon, to which it had been consigned. Under such
circumstances, said defendants were the depositaries of the money.lawphi1.net
Manresa, in his Commentaries on the Civil Code (Vol. 10, p. 773), in treating of the provisions of the
said code concerning transportation by sea and by land of both persons and things, says:
Liability of carriers. In order that a thing may be transported, it must be delivered to
the carrier, as the Code says. From the time it is delivered to the carrier or shipper until it
is received by the consignee, the carrier has it in his possession, as a necessary condition
for its transportation, and is obliged to preserve and guard it; wherefore it is but natural
and logical that he should be responsible for it.
The Code discovers in the relation of all these elements the factors which go to make up
the conception of a trust, and, taking into account that the delivery of the thing on the part
of the shipper is unavoidable, if the transportation is to take place, esteem that, at least in
certain respects, such trusts are necessary.
The said two defendants being the depositaries of the sum in question, and they having failed to
exercise for its safe-keeping the diligence required by the nature of the obligation assumed by them
and by the circumstances of the time and the place, it is evident that, in pursuance of the provisions
of articles 1601 and 1602, in their relation to articles 1783 and 1784, and as prescribed in articles
1770, of the Civil Code, they are liable for its loss or misplacement and must restore it to the plaintiff,
together with the corresponding interest thereon as an indemnity for the losses and damages caused
him through the loss of the said sum.

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With respect to the other defendant, Narciso Lauron, as he was the owner of the vessel in which the
loss or misplacement of the P450 occurred, of which vessel, as aforestated, Glicerio Ipil was master
and Justo Solamo, supercargo, both of whom were appointed to, or chosen for, the positions they
held, by the defendant himself, and, as the aforementioned sum was delivered to the said master,
Ipil, and the merchandise to be transported by means of said vessel from the port of Cebu to the
town of Catmon was laden by virtue of a contract executed by and between the plaintiff and the
owner of the vessel, Narciso Lauron, it behooves us to examine whether the latter, also, should be
held to be liable, as requested by the plaintiff in his complaint.
Said vessel was engaged in the transportation of merchandise by sea and made voyages to and from
the port of Cebu to Catmon, and had been equipped and victualed for this purpose by its owner,
Narciso Lauron, with whom, as aforesaid, the plaintiff contracted for the transportation of the
merchandise which was to be carried, on the date hereinabove mentioned, from the port of Cebu to
the town of Catmon.
For legal purposes, that is, for the determination of the nature and effect of the relations created
between the plaintiff, as owner of the merchandise laden on said craft and of the money that was
delivered to the master, Ipil, and the defendant Lauron, as owner of the craft, the latter was a vessel,
according to the meaning and construction given to the word vessel in the Mercantile Code, in
treating
of
maritime
commerce,
under
Title
1,
Book 3.
The word vessel serves to designate every kind of craft by whatever particular or technical
name it may now be known or which nautical advancements may give it in the future.
(Commentaries on the Code of Commerce, in the General Review of Legislation and
Jurisprudence, founded by D. Jose Reus y Garcia, Vol., 2 p. 136.)
According to the Dictionary of Legislation and Jurisprudence by Escriche, a vessel is any kind of
craft, considering solely the hull.
Blanco, the commentator on mercantile law, in referring to the grammatical meaning of the word
"ship" and "vessels," says, in his work aforecited, that these terms designate every kind of craft, large
or small, whether belonging to the merchant marine or to the navy. And referring to their juridical
meaning, he adds: "This does not differ essentially from the grammatical meaning; the words "ship"
and "vessel" also designate every craft, large or small, so long as it be not an accessory of another,
such as the small boat of a vessel, of greater or less tonnage. This definition comprises both the craft
intended for ocean or for coastwise navigation, as well as the floating docks, mud lighters, dredges,
dumpscows or any other floating apparatus used in the service of an industry or in that of maritime
commerce. . . ." (Vol. 1, p. 389.)

The same Code of Commerce in force in these Islands compares, in its article 609, masters with
captains. It is to be noted that in the Code of Commerce of Spain the denomination of arraeces is not
included in said article as equivalent to that of masters, as it is in the Code of these Islands.
Commenting on said article, the aforementioned General Review of Legislation and Jurisprudence
says:
The name of captain or master is given, according to the kind of vessel, to the person in
charge of it.
The first denomination is applied to those who govern vessels that navigate the high seas
or ships of large dimensions and importance, although they be engaged in the coastwise
trade.
Masters are those who command smaller ships engaged exclusively in the coastwise trade.
For the purposes of maritime commerce, the words "captain" and "master" have the same
meaning; both being the chiefs or commanders of ships. (Vol. 2, p. 168.)
Article 587 of the Code of Commerce in force provides:
The agent shall be civilly liable for the indemnities in favor of third persons which arise
from the conduct of the captain in the care of the goods which the vessel carried; but he
may exempt himself therefrom by abandoning the vessel with all her equipments and the
freight he may have earned during the trip.
Article 618 of the same Code also prescribes:
The captain shall be civilly liable to the agent and the latter to the third persons who may
have made contracts with the former
1. For all the damages suffered by the vessel and its cargo by reason of want of skill or
negligence on his part, If a misdemeanor or crime has been committed he shall be liable in
accordance with the Penal Code.
2. For all the thefts committed by the crew, reserving his right of action against the guilty
parties.

According to the foregoing definitions, then, we should that the banca called Maria, chartered by the
plaintiff Yu Con from the defendant Narciso Lauron, was a "vessel", pursuant to the meaning this
word has in mercantile law, that is, in accordance with the provisions of the Code of Commerce in
force.

The Code of Commerce previous to the one now in force, to wit, that of 1829, in its article 624,
provided that the agent or shipowner should not be liable for any excesses which, during the
navigation, might be committed by the captain and crew, and that, for the reason of such excesses, it
was only proper to bring action against the persons and property of those found guilty.

Glicerio Ipil, the master of the said banca Maria, must also be considered as its captain, in the legal
acceptation of this word.

Estasen, in his work on the Institutes of Mercantile Law (Vol. 4, p. 280), makes the following
remarks, in referring to the exposition of reasons presented by the Code Commission which prepared
and presented for approval the Code of Commerce now in force, in which exposition of reasons were
set forth the fundamental differences between the provisions contained in both codes, with respect to
the subject-matter now under discussion. He says:

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Another very important innovation introduced by the Code is that relative to the liability
for misdemeanors and crimes committed by the captain or by members of the crew. This is
a matter of the greatest importance on which a variety of opinions has been expressed by
different juris-consults.
The old code declares the captain civilly liable for all damage sustained by the vessel or its
cargo through lack of skill or care on his part, through violations of the law, or through
unlawful acts committed by the crew. As regards the agent or shipowners, it declares in
unmistakeable terms that he shall in no wise be liable for any excesses which, during the
navigation, may be committed by the captain and the crew.
Upon an examination, in the light of the principles of modern law, of the standing legal
doctrine on the non-liability of the shipowner for the unlawful acts, that is, the crimes or
quasi crimes, committed by the captain and the crew, it is observed that it cannot be
maintained in the absolute and categorical terms in which it is formulated.
It is well and good that the shipowner be not held criminally liable for such crimes or quasi
crimes; but the cannot be excused from liability for the damage and harm which, in
consequence of those acts, may be suffered by the third parties who contracted with the
captain, in his double capacity of agent and subordinate of the shipowner himself. In
maritime commerce, the shippers and passengers in making contracts with the captain do
so through the confidence they have in the shipowner who appointed him; they presume
that the owner made a most careful investigation before appointing him, and, above all,
they themselves are unable to make such an investigation, and even though they should do
so, they could not obtain complete security, inasmuch as the shipowner can, whenever he
sees fir, appoint another captain instead.
The shipowner is in the same case with respect to the members of the crew, for, though he
does not appoint directly, yet, expressly or tacitly, he contributes to their appointment.

the latter and of the supercago Justo Solamo, there occurred the loss, theft, or robbery of the P450
that belonged to the plaintiff and were delivered to said master and supercargo, a theft which, on the
other hand, as shown by the evidence, does not appear to have been committed by a person not
belonging to the craft, should, for said loss or theft, be held civilly liable to the plaintiff, who executed
with said defendant Lauron the contract for the transportation of the merchandise and money
aforementioned between the port of Cebu and the town of Catmon, by means of the said craft.
Therefore, the trial court did not err in so holding in the judgement appealed from.
The plaintiff having filed his answer to the cross-complaint as soon as the defendant presented their
motion for] a declaration of the plaintiff's default in connection with said cross-complaint, and it
being optional with the court to make in such cases the declaration of default, as provided in section
129 of the Code of Civil Procedure, the said court did not incur the second error assigned by the
appellants in their brief.
Lastly, as the banca Maria did not make the trip she should have made from the port of Cebu to the
town of Catmon, on the occasion in question, through cases chargeable, as has been seen, to the
captain and the supercargo of said banca, to wit, because of the loss, theft of robbery of the P450
belonging to the plaintiff, and as a contract was made for the transportation of the said sum and the
merchandise from one of said points to the other, for the round trip, and not through payment by the
plaintiff of the wages due the crew for each day, as alleged by the defendants, for the proofs
presented by the latter in regard to this point were insufficient, as the trial court so held, neither did
the latter incur error in overruling the cross-complaint formulated by the defendants in their answer
against the plaintiff.
Therefore, and for all the reasons above set forth, we affirm the judgment appealed from, with the
costs of this instance against the appellants. So ordered.
Torres, Carson, Moreland and Trent, JJ., concur.

On the other hand, if the shipowner derives profits from the results of the choice of the
captain and the crew, when the choice turns out successful, it is also just that he should
suffer the consequences of an unsuccessful appointment, by application of the rule of
natural law contained in the Partidas, viz., that he who enjoys the benefits derived from a
thing must likewise suffer the losses that ensue therefrom.
Moreover, the Penal Code contains a general principle that resolves the question under
consideration, for it declares that such persons as undertake and carry on any iondustry
shall be civilly liable, in default of those who may be criminally liable, for the
misdemeanors and crimes committed by their subordinates in the discharge of their
duties.
The Code of Commerce in force omits the declaration of non-liability contained in the old
code, and clearly makes the shipowner liable civilly for the loss suffered by those who
contracted with the captain, in consequence of the misdemeanors and crimes committed
by the latter or by the members of the crew.
It is therefore evident that, in accordance with the provisions of the Code of Commerce in force,
which are applicable to the instance case, the defendant Narciso Lauron, as the proprietor and owner
of the craft of which Glicerio Ipil was the master and in which, through the fault and negligence of

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-52

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO DE LA CRUZ y TOJOS, ET AL., defendants.
TEODORO DE LA CRUZ y TOJOS, appellant.
Rizal G. Adorable for appellant.
Assistant Solicitor General Canizares and Solicitor Bautista for appellee.

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PERFECTO, J.:
Appellant is charged with the crime of robbery in band committed on June 25, 1945. The Court of
First Instance of Manila sentenced him to suffer an indeterminate sentence of not less than six
months nor more than six years, ten months and one day of imprisonment, to indemnify the offended
party in the sum of P8,000, with subsidiary imprisonment in case of insolvency, and to pay the costs.
He appealed from this sentence, praying that he be acquitted. The prosecution recommends
affirmance, with the elimination of the subsidiary imprisonment in case of insolvency, the principal
penalty imposed being higher than prision correccional.
At about 8.30 p. m., on July 25, 1945, while Dr. Gregorio B. Sison was closing the door of his drug
store at 389 Dimasalang, Manila, four men armed with revolvers got near him, stuck revolvers over
his ribs, pushed him inside the drug store, and ordered him and all other persons inside to lie down
face downward. One remained to watch the door, another, who was manipulating his revolver
several times, kept watch of the persons lying down, and the remaining two went upstairs. The one
watching the door called several times the other watching the persons lying down, telling him to
shoot their heads if they moved.
The malefactors were able to get P200 from the cash register, P7,000 in bills, P500 in silver coins,
and one pair of earrings with diamonds valued at P300, all located in one of the drawers in the
kitchen.
The main question in this case revolves on appellant's identity. He denies having participated in the
commission of the crime. At the hour and on the day the robbery was committed, appellant does not
remember whether he was at the home or at Felix Huertas. He alleges that he lives by selling bread,
shoes, pomade, and other things in the market, and admits that he gambles. Two witnesses for the
prosecution recognized appellant as the one watching the people who were ordered to lie down in
the drug store. Dr. Gregorio B. Sison testified that he was able to recognize appellant "when he
stuck the revolver against my ribs, I happened to look at him; he was wearing a fatigue uniform with
cap, and before I lied down I had a good look at him." (P. 2, t.s.n.).
Luz Mendoza de Sison testified that she heard one of the robbers called appellant by the name
Doro. She declared that while she was lying down "I tried to raise my head to look at him and then
one of his companions shouted "Doro", shoot her, she is raising her head." (P. 9, t.s.n.) At that time
she was able to see appellant's face. There were three gas lights inside the drug store then. The
witness testified that she saw appellant twice, the first time "when he pushed my husband" (p. 13,
t.s.n.) inside the drug store, and the last time when she looked at him "while he was manipulating the
gun ... to see his face." (P. 13, t.s.n.)
Detective Alejandro Eugenio testified that appellant, being one of those arrested in connection with
the holdup of Dr. Teodoro Virata and being named as Doro, was brought to the drug store on July
17, where he, in a group composed of said detective and detective Querijero, in plainclothes, and
two uniformed policemen, following the practice of presenting persons caught as holdup men to
victims for identification, was identified by Luz Mendoza de Sison. .
The analysis of the testimonies given in this case convinces us that appellant was conclusively
identified as the robber who kept watch of the people inside the drug store while lying down: who,
upon entering the drug store, was one of those who stuck a revolver at the ribs of Dr. Gregorio B.
Sison; who, during the watch, was manipulating his revolver to the extent of dropping two bullets to
the floor, and who was being named as Doro.

The fact that the prosecution witnesses singled him out as the only one among the four robbers they
could identify, it appearing that there were circumstances which made his identification possible, and
that no unreasonable motive was shown why they should point him out, instead of any one of the
three remaining gangsters, only serves to strengthen the credibility of said identification.
There are no words strong enough to condemn banditry and gangsterism. During the enemy
occupation, our peaceful citizenry had to endure the scourge of frequent wanton robberies. The
abnormal conditions then reigning, the example of outlawry given by the masters of the situation,
hunger and misery in some cases, the moral distress or mental disequilibrium in others, which
produced the extraordinary situation, might explain the robberies and lootings perpetrated under the
regime of greatest looters ever known in our country. But now, when everybody is given full
opportunity to earn an honest and decent living, under a regime of law and freedom, of peace and
justice, of noble principles and high ideals, any act such as the one committed by appellant and his
co-gangsters does not merit the least attenuation. The authors of such acts must be branded forever
with the stigma of infamy. They are the shame of a race and the ignominy of a people, the disgrace
of humankind.
One of the geniuses who flourished in the thirteenth century, the philosopher and theologian whose
exalted native endowment and original creative power in the intellectual field is the admiration of
Christian world, Saint Thomas Aquinas, maintained that the appropriation of others' goods which
they (the owners) do not need, if made in obedience to extreme necessity, does not constitute
robbery. He declared that the superfluous things in the possession of some persons, by natural law,
are goods for the maintenance of the poor. Evident and urgent necessity makes the one who
appropriates the goods of another for the maintenance of his own life the legal owner of said goods
(Summa Theologica, 2d part, Question LXVI, Art. VII). To strengthen his position, he quoted from
Saint Ambrose (serm. 64, De temp. Decret. 47, cap. Sicut hi) the following: "The bread you are
retaining belongs to the hungry; the cloth you are keeping aside belongs to the naked; the money
you are hiding underground is for the redemption and absolution of the unfortunate." But, without
subscribing necessarily to the above propositions of the two saintly authors, in the present case,
there is absolutely no showing that extreme necessity impelled accused to perpetrate the robbery
here in question. There is not the remotest hint that appellant would have died of hunger without the
money and jewel which he and his fellow gangsters took from complainants' drug store, or that he
would face an imminent danger of losing any vital limb or right. On the contrary, he testified that he
was engaged in selling foodstuffs, such as bread; wearing apparel, such as shoes; and even articles
of luxury, such as pomade. And it is evident that he earned more than enough to satisfy his prime
needs, for he allowed himself the leisure and the spare money for gambling. He robbed, therefore,
not because he was compelled by any pressing necessities, but by following impulses of moral
perversity. For such individual, and for all individuals belonging to his depraved tribe, there is no
reason to waste any pity or leniency. The race of robbers, bandits, gangsters, and other malefactors
of the same brand, should be ostracized perpetually from human society until the shame shall have
disappeared completely from memory.
With the elimination of the penalty of subsidiary imprisonment in case of insolvency, as
recommended by the prosecution (case 3, article 39, Penal Code), we affirm the decision of the
lower court. The correction of form suggested by the Solicitor General to the effect that the
designation of prision correccional used in the lower court's decision must be read as prision mayor,
being an evident lapsus plumae, does not need from us any specific pronouncement. The costs in
this instance shall be taxed against appellant.
Ozaeta, De Joya, Hilado, and Bengzon, JJ., concur.

G.R. No. 1380

January 18, 1904

CONSOLACION MIJARES, plaintiff-appellant,

vs.
DELFINA NERY, ET AL., defendants-appellees.
Manuel M. de Hazaas for appellant.
Del Pan, Ortigas and Fisher for appellees.

According to law 11 of Toro, which subsequently became Law 1, title 5, book 10 of the Novisima
Recopilacion, natural children are those whose parents at the time of the conception or birth of the
children were not disqualified to marry, provided that their fathers recognize them to be their
children, although they may not have kept in their home the women by whom they may have had
such children.
It follows, therefore, that children born of parents who at the time either of the birth or conception of
their offspring were disqualified to marry by reason of some impediment, whether removable by
dispensation or not, could not possess the status of natural children. This was the old law which
governed as to natural children, but which has been modified by the Civil Code, which has confined
to the time of conception the period at which the parents must be free to marry, with or without
dispensation.

TORRES, J.:
This is an appeal interposed by means of a bill of exceptions by the plaintiff, Consolacion Mijares y
Borromeo, against the decision of April 11, 1903, rendered in favor of the defendants Delfina Nery,
Carmen Mijares y Nery, and others, with the costs.
In the year 1899, the date and the month not having been established, Don Mariano Mijares died in
the Province of Albay leaving property of the estimated value of 80,000 pesos. The deceased at the
time of his death had no legitimate heirs, descendant or ascendant, but left a daughter, the present
plaintiff, born in 1862 out of wedlock, although legally recognized as a natural child. He likewise left
five other daughters born in like manner of Delfina Nery, who was a niece of the deceased, which
said five daughters, who were born successively from the year 1862 until 1889, were acknowledged
expressly and tacitly by Don Mariano Mijares during his lifetime as his own daughters. It does not
appear why said Mijares and Nery never married notwithstanding the fact that a bull was issued on
January 23, 1878, by Pope Pius IX authorizing the marriage of the deceased with his niece, Delfina
Nery, as shown by a copy of said bull which was presented to the court.
Acting on the supposition that Don Mariano Mijares died intestate, the plaintiff, Consolacion Mijares
y Borromeo, alleging that she is the sole natural daughter of the deceased recognized by him, and
that he left no legitimate descendants or ascendants, contends that she is the sole heir to her father's
estate by reason of the fact that the five defendants, daughters of Delfina Nery, a niece of her said
father, are illegitimate daughters, without the status of natural children under law 11 of Toro, in force
on the date of the birth of said defendants, she therefore brought suit to be declared the sole
universal heir ab intestate to her father's estate, and asks judgment in her favor as to the ownership
and possession of the hereditary property held by the defendants, praying that they be ordered to
make delivery thereof to her.
The defendants opposed this claim, alleging that although it is true that the daughters of the
deceased by his niece Delfina Nery, being illegitimate, could not enjoy the status of natural children
under law 11 of Toro in force of the time of their birth, nevertheless under the Civil Code, which
became operative in the Philippine Islands in 1889, they acquired the status of natural children,
entitled to inherit, because they were acknowledged by their late father, and because, according to a
will and codicil executed by the deceased during his lifetime, they were entitled to the several parts of
the estate therein bequeathed to them, since the deceased had instituted all his daughters as his heirs
in equal parts. It does not appear that the judge made any findings as to the validity or invalidity of
the will and codicil, which were presented during the trial.

Article 119 of the Civil Code says: "Only natural children may be legitimized. Natural children are
those born out of wedlock of parents who at the time of the conception of the children could have
married with or without dispensation."
From the context of this article it is evident that the first difference to be observed between law 11 of
Toro and article 119 of the Civil Code consists in that according to the latter, in order to determine
whether a child born out of wedlock is or is not a natural child, it is necessary to consider only the
time of its conception that is to say, to determine whether during any one of the first one hundred
and twenty days of the three hundred preceding the birth of the child the parents were qualified to
marry with or without dispensation, applying article 108, paragraph 2, of the Civil Code in the
determination of the time of conception.
The second difference consists in that the code has placed on the same footing persons who could not
marry without dispensation, and those who, because under no disability, could freely contract
marriage. These provisions are entirely at variance with those contained in the law of Toro cited.
In order that their offsprings might have the status of natural children it did not suffice that the
father and mother could have married without dispensation at the time of the conception or of the
birth, but it was necessary, in addition thereto, according to the law of Toro, that the father should
acknowledge the child as his.
Article 129 of the Civil Code Provides: "A natural child may be acknowledge by the father and mother
jointly or by only one of them." Article 131 prescribes the form in which the acknowledgment of the
natural child should be made. This acknowledgment is to a certain extent one of the rights of the
natural child with respect to his parents, who are obliged to make such acknowledgment in the cases
respectively set forth in articles 135 and 136 of the code, which became operative in these Islands on
December 7, 1889, twenty days after its publication which took place on the 17th of November of the
same year.
The plaintiff and the five sisters, defendants, were born out of wedlock and were acknowledged by
Don Mariano Mijares, their father, as his daughters. The plaintiff was born of a woman whose name
does not appear, and the five defendants were had with his niece, Delfina Nery, whom he might have
married, notwithstanding the impediment of consanguinity, by virtue of the pontifical bull above
referred to. If the plaintiff should be considered as an acknowledged natural child in accordance with
law 11 of Toro, the five sisters, defendants, merit the same consideration as acknowledged natural
children in accordance with article 119 of the Civil Code in relation to rule 1, part 2 of the transitory
provisions thereof.

7
Notwithstanding the fact that the five daughters of Mijares had with Delfina Nery were born at a
time when the old law was in force prior to the enactment of the present Civil Code, it is nevertheless
indisputable that the legal relations and the rights originated from the birth of the defendants and
from their acknowledgment by their father, facts which took place under the former law, are to be
determined by the Civil Code by virtue of paragraph 2 of rule 1 of the transitory provisions above
cited.
This second paragraph says: "But if the right is declared for the first time in this code it shall be
effective at once, even when the prior legislation, provide it does not prejudice other vested rights
having the same origin."

When a father died intestate, his natural children, in the absence of legitimate issue or their
legitimate descendants, inherited only a sixth part of his estate, which they shared with their mother,
even though the father at the time of his death should have left a lawful wife. (Laws 8 and 9, title
13, partida 6.) In the absence of legitimate descendants or ascendants or collateral relatives within
the fourth degree, inclusive, the natural children took the whole estate as lawful heirs to the
exclusion of the widow and collateral relatives of the fifth and subsequent degrees. (Law of May 16,
1835.)
The natural child was never a forced heir of his father by will; but in the absence of legitimate
children, he was the forced heir of the mother, testate or intestate.

The five daughters of Mijares with his niece, Nery, acquired the status of natural children by virtue of
article 119 of the Civil Code, because at the time of their conception the disability of their illegitimate
parents to marry might have been removed by means of a dispensation, which in fact they
subsequently obtained. This right to the status of natural children of their father who acknowledged
them expressly and tacitly, was unknown to the former law, inasmuch as said law 11 of Toro required
as a condition that the parents of a natural child should be qualified to marry at the time of the
conception or the birth thereof, without dispensation, and it therefore results that it is a new right
for the first time declared by the Civil Code in article 119 cited.

A father leaving legitimate children and descendants could leave one-fifth of his property to his
natural children. In the absence of such legitimate heirs and descendants he could by will dispose of
such part of his estate as he might wish, even should there be ascendants. (Law 10 of Toro, or law 6,
title 2, book 10, of the Novisima Recopilacion.)

In the commissioner's preface to the Civil Code the following appears: "And whereas all rights
originate necessarily from some fact, either defendant upon or independent of the will of man, the
date of this fact, which may be prior or subsequent to the promulgation of this code, should
determine the law which is to be applied to the right originated thereby. . . . But in the case of a new
right for the first time declared in the code, and not recognized by the previous legislation, it should
be governed by the code even though the fact wherefrom it originated should be occurred under the
former law, unless it prejudices another right vested under that law; because in this case the one
about to suffer the injury is more entitled to consideration that the one who is about to receive a
gratuitous benefit. This doctrine was applied by the supreme court in Spain in its decision of June
28, 1896.

The Civil Code gave to acknowledged natural children the right to a legal portion from which they
can not be excluded by legitimate descendants or ascendants, or by the husband or wife; but this
hereditary portion can not be equal to that of the legitimate children.

It is therefrom undeniable that by virtue of the provisions of paragraph 2 of rule 1 of the transitory
provisions of the Code, article 119 operates retroactively in favor of the defendants, daughters of
Mijares by his niece, Delfina Nery, since the Code has relieved them of the status of incestuous
children, declaring them to be natural children because born of parents qualified to marry, and
vesting them with all the rights inherent in acknowledged natural children.

As may be seen, the natural child, according to the old law, did not have, with respect to the
succession of the father, the same right as with respect to the estate of the mother, aside from the
right to support.

One-half of the legal portion which corresponds to each one of the legitimate children who have
received no betterment, is that prescribed by article 843 of the code as the hereditary portion of
acknowledged natural children, provided it does not exceed the trial part of the free property. When
a testator does not leave legitimate children or descendants, but leaves legitimate ascendants,
acknowledged natural children are entitled to one-half of that part of the estate which is at the free
disposal of the testator, without prejudice to the widow's legal portion. (Arts. 836 and 841 of the Civil
Code.)
When the testator leaves no legitimate descendants or ascendants, acknowledged natural children
are entitled to one-half part of the estate according to article 842 of the code. The remaining twothirds may be disposed of at will by the parent, subject to the usufructuary interest of the widow.

Assuming that the five defendants were born prior to December 18, 1899, the date of General Orders,
No. 68, of the Military Governor, which put in force a new law as to marriage, and that the death of
Mijares, their father, took place likewise prior to the time when said general orders went into force, it
is evident that the provisions of this law are not to be given a retroactive effect, and are not
applicable to the rights of the defendants. It is not necessary or timely to express an opinion as to
what the effect to General Orders, No. 68, would be upon the rights of the defendants were the facts
such as to make it applicable.

In intestate successions, the law grants the inheritance to the legitimate and natural relations of the
deceased, to the widow or to the widower, and to the State. In the absence of legitimate descendants
or ascendants, natural children legally acknowledged succeed their parents, if intestate, in the whole
of their property, as do also natural children legitimized by royal concession. (Art. 939, Civil Code. )
But if the deceased who dies intestate should leave legitimate descendants or ascendants, natural
children and legitimized children are only entitled to do the part of the estate assigned them by
articles 840 and 841. (Art. 942, Civil Code.)

As a consequence of what has been stated, it is proper that we should now treat of the rights of
natural children as regards the estate of their parents, confining at all times the quotations of the
legal provisions to the questions at issue in this litigation.

The following question now arises, When does the right to inherit vest? As an answer thereto we
shall quote a part of the commissioner's preface to the code, applicable thereto, which is as follows:
"If the existence, efficiency, or extent of the right depends on events independent of the will of the
person who possesses the right, he may have an expectancy but not a vested right. For this reason the
legal heirs and instituted heirs, as well as the legatees of persons still alive, have no vested right until
the death of the latter, because the existence of the right they may enjoy in the future is subject to the

8
contingency of their own demise, the vicissitudes of fortune, and the free and variable will of the
testators."
So with them until the death of the person from whom the estate is to proceed, hereditary rights can
not be considered as vested or fully acquired. Mijares died in 1899, as shown in the bill of exceptions.
Therefore the right of his acknowledged natural daughters the plaintiff and the five defendants
to succeed to his estate, vested in the same year under the Civil Code. Their status as acknowledged
natural children did not give them a vested right to inherit until the death of their father, and
consequently the provisions of the Civil Code are to applied to the succession of the estate of Mijares.
( Rule 12 of the transitory provisions.)
The jurisprudence established by the supreme court of Spain in the decision of June 24, 1897,
confirms the doctrine of the question quoted from the commissioner's preface to the code, because it
says: "The succession of a person being open on the day of his death, which was subsequent to the
publication of the Civil Code, the latter is applicable, in accordance with the first and penultimate
clauses of the transitory provisions, to a suit for the determination of the right to the estate, because
the principle of the nonretroactive effect of a new law only governs in the case of rights vested under
the old law, and it is elementary that hereditary rights do not vest until the death of the person whose
succession is involved. Therefore the court below did not violate laws 11 and 12, title 13 partida 6, and
the transitory provisions of the Civil Code by so deciding."
Now then: Can the rights of the plaintiff be considered impaired and injured by the fact that the
defendants have obtained the status of natural children, according to article 119 of the code, by virtue
of the retroactive principle laid down in rule 1 of the transitory provisions of the code? We believe
not, because the plaintiff, as the elder daughter of Mijares, could not have been prejudiced by the
birth of the latter's other children, even if had with another woman. All, as natural daughters of the
same father, enjoyed, and the one as well as the others have a right to life and to the protection of the
law.

If, therefore, the plaintiff had no vested right to the succession of her natural father until the latter's
death, which occurred when the Civil Code was already in force; if the exercise of said right did not
depend on her will, and was a mere expectancy until the death of her father and if successory
rights and their respective extent are to be governed by the provisions of the code, under no
possibility can it be held that the decision that the defendants are acknowledged natural children,
made by virtue of said article 119 of the Civil Code, giving it a retroactive effect according to the first
of the transitory provisions, injures or prejudices the right of the plaintiff, because this right was not
vested or acquired until the death of her father, which took place when the new code, in accordance
with the provisions whereof the questions at issue in this litigation must be decided, was already
operative.
It is therefore unquestionable that the five daughters of Mijares and Delfina Nery, the defendants in
this case, have an equal to that of the plaintiff as to the succession of their father as acknowledged
natural daughters, and it is therefore neither just nor proper to declare Consolacion, the plaintiff, the
sole universal heir of the deceased, or that she be allowed to take possession of all the property of the
latter to the prejudice of her sisters, Carmen, Delfina, Engracia, Maria, and Luz.
The ratification of the decision appealed from is proper moreover inasmuch as the defendants have
exhibited a will and codicil which is said to have been executed by the late Mijares, and the judge
made no finding as to the validity or invalidity of said documents for the reasons stated in his
decision.
It is therefore, in our opinion, proper to affirm the decision of April 11, 1903, with the costs to the
appellant, without prejudice to such action as the court may take, at the instance of either of the
parties, as regards the will and codicil. Twenty days after the filing of this decision let judgment be
entered in conformity therewith and let the case remanded to the lower court. So ordered.
Arellano,
C.
J.,
Cooper,
Mapa and Johnson, JJ., took no part.

As to their respective successory rights, it has already been stated that they originate only from the
moment of the death of their father, which took place when the Civil Code was already in force, and
therefore the provisions of the same are perfectly applicable, as prescribed by rule 12 of the
transitory provisions of said code.

Willard

and

McDonough,

JJ., concur.

G.R. Nos. 103385-88 July 26, 1993

It must be born in mind that a successory right is a mere creation of positive law, which is always
conformable to the principles of natural law, and the successor of a deceased person has no right to
the estate other than that established by the law and recognized in his favor. This is confirmed by
transitory provision No. 12.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELMA ROMERO y CRUZ, accused-appellant.
The Solicitor General for plaintiff-appellee.

One of the rights conferred upon an acknowledged natural child by article 134 of the Civil Code is
that of receiving the legal portion determined by the code according to each case.

Jose V. Juan, Bartolome P. Reus and Antonietta Pablo Medina for accused-appellant.
Can this successory right be considered as having vested in the plaintiff, Consolacion, prior to the
death of her natural father in 1899? Undoubtedly not, since she only had the expectancy of
inheriting, a potential right which could only become effective upon the death of her father, and this
in accordance with the code, since natural children, according to the former law had no right to a
legal portion. (Laws 8 and 9, title 13, partida 6.) The doctrine laid down by the decision of the
supreme court of Spain, June 24, 1897, as well as the part of the code, commissioner's preface
quoted, supports our conclusion.

NOCON, J.:
This is an appeal from a Joint Decision 1 of the Regional Trial Court of Pasig, Branch 168 in Criminal
Cases Nos. 78507-10 2 finding accused-appellant Elma Romero y Cruz guilty beyond reasonable
doubt of the crimes of ESTAFA and ILLEGAL RECRUITMENT.

9
Two (2) separate Informations were filed by Assistant Fiscal Edmundo O. Legaspi in behalf of
complainant Doriza Dapnit against Elma Romero for the crimes of ESTAFA and ILLEGAL
RECRUITMENT committed as follows:
CRIMINAL CASE NO. 78507 ESTAFA
That sometime during the month of January, 1989, in the Municipality of
Mandaluyong, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously defraud one Doriza Dapnit of the amount of
P21,000.00, by means of deceit and false representations which she made to the
latter to the effect that she could Facilitate the employment overseas of said
Doriza Dapnit, and would need certain amount for expenses in the processing of
her employment and travel papers, which representation the accused well knew
were false and fraudulent and were only made by her to induce said Doriza
Dapnit to give and pay, as the latter gave and paid to her the amount of
P21,000.00 which the accused once in possession of the said amount,
misappropriate, misapply and convert to her own personal use and benefit, to
the damage and prejudice of said Doriza Dapnit, in the aforementioned amount
of P21,000.00. 3
CRIMINAL CASE NO. 78510 ILLEGAL RECRUITMENT
That in or about and during period comprised from January, 1989, up to
February, 1989, in the Municipality of Mandaluyong, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the abovenamed accused,
knowing that she was neither authorized nor licensed by the Philippine Overseas
Employment Agency, did then and there willfully, unlawfully and feloniously
recruit workers for overseas employment and collect from the following persons,
to wit:
Doriza
Dapnit
Bernardo
T.
Salazar
Richard Quillope 15,600.00

P21,000.00
24,000.00

by falsely representing to the latter that she was a lawful recruiter and in a
position to obtain for their job placement abroad. 4
Upon arraignment, accused Elma Romero pleaded "NOT GUILTY" and trial ensued.
The facts as found by the trial court are as follows:
Sometime in January of 1989, complainant Doriza Dapnit went to the residence of accused-appellant
Elma Romero at Esteban Street, Mandaluyong, Metro-Manila accompanied by Genalie Cruz, a
cousin of accused-appellant. At such meeting, complainant Doriza Dapnit told accused-appellant of
her desire to work abroad and the latter informed her that she can work in Taiwan as a factory
worker with a monthly salary of US$5,000.00. 5

Thereafter, complainant Doriza Dapnit, relying upon the representation of the accused-appellant
that she can leave on April 1, 1989 for Taiwan as a factory worker, paid the placement fee charged by
the latter as evidenced by the receipts issued by the accused-appellant totalling P21,000.00 which
were paid as follows: P3,000.00 on January 24, 1989 6, P15,000.00 on February 4, 1989 7 and
P3,000.00 on February 27, 1989. 8 Complainant Doriza Dapnit also paid accused-appellant the
amount of P1,800.00 for the processing of her passport which is not included in her claim as she was
issued a passport. 9
When complainant Doriza Dapnit was not able to leave on April 1, 1989 for Taiwan, accusedappellant told her, to wait as her visa was not yet issued. However, after spending more than two (2)
months futilely following up her visa with the accused-appellant, complainant Doriza Dapnit went to
the office of the Philippine Overseas Employment Administration (POEA) and found out that
accused-appellant is not a licensed recruiter as shown by the Certification issued by the POEA. 10
On June 30, 1989, complainant Doriza Dapnit executed an affidavit
charging accused-appellant for illegal recruitment and/or estafa.

11

at the office of the POEA

Complainant Bernardo Salazar testified that sometime in the middle of January 1989, he went to RSI
Enterprises located at Shaw Boulevard, Mandaluyong, Metro-Manila and met accused-appellant
where he applied for a job in Taiwan. During said meeting, accused-appellant promised complainant
Bernardo Salazar that he can leave for Taiwan on April 1, 1989 as a factory worker with a monthly
salary of US$600.00 12 as soon as he paid the placement fee.
After paying accused-appellant the amount of P24,000.00 as placement fee which were evidenced by
the five (5) receipts 13 issued by accused-appellant, complainant Bernardo Salazar was not able to
leave on April 1, 1989 and accused-appellant told him that his departure was delayed because she is
still waiting for the issuance of his visa.
When accused-appellant failed to send complainant Bernardo Salazar to Taiwan, the latter went to
the Anti-illegal Recruitment Branch of the POEA on June 30, 1989 and executed an
affidavit 14 charging accused-appellant for illegal recruitment and/or estafa.
When complainant Richard Quillope was presented to the court and sworn in, prosecution's counsel
manifested that complainant Quillope will testify to the following:
. . ., that on January 25, 1989, Elma Romero made representation to him as
having capacity to send workers abroad, overseas workers abroad. As made by
Elma Romero that she has the capacity of sending overseas workers abroad he
paid the following amount, first, in the amount of P3,000.00 dated March 10,
1989, second payment, dated January 10, 1989 in the amount of P10,000.00;
third in the amount of P1,600.00 dated February 17, 1989. That all these
receipts except that amount of P1,000.00 are for processing fee for visa for
Taipeh. That this witness was not able to go or was deployed as promised by the
accused, he found out that she was not licensed nor engaged in the recruitment
of overseas employment. That there was representation made by Elma Romero
that this witness will be sent abroad as factory worker in Taipeh or Taiwan. 15
to which accused-appellant's counsel did not object when he admitted said manifestation in court, as
follows:

10
ATTY. JAKOSALEM:

did not misrepresent herself as capable of finding complainant Doriza Dapnit employment abroad is
negated by the latter's testimony when she testified that:

We have no objection and we admit the testimony of the

witness. So, we can dispense with the cross-examination of
the said witness.

Q Did you have any conversation with Elma Romero?

A Yes, sir.

COURT:
Q What was your conversation about, will you tell the
Court?

He (We) dispensed with the cross-examination of the witness. 16

On January 18, 1990, the trial court issued an Order 17 dismissing Criminal Cases Nos. 78508 and
78509 on the basis of the Joint Affidavit of Desistance 18 executed by complainants Richard Quillope
and Bernardo Salazar on December 14, 1989.

A She told me that I could be deployed as one of the factory

workers in Taiwan.
Q Did you ask her how much would be your salary if you
will be deployed as one of the factory workers in Taiwan?

On August 8, 1991, the trial court rendered its Joint Decision, the dispositive portion of which reads
as follows:

A Yes. sir.
WHEREFORE, finding the accused ELMA ROMERO guilty beyond reasonable
doubt of the crime of Estafa, the Court hereby sentences her to suffer penalty of
imprisonment of one (1) year, 8 months and 21 days of prision correccional as
MINIMUM to 5 years, 5 months and 11 days of prision correccional the as
MAXIMUM and to indemnify complainant Doriza Dapnit the sum of
P21,000.00;

Q How much?
A US$5,000.00.
xxx xxx xxx

Finding the accused ELMA ROMERO guilty beyond reasonable doubt of the
crime of Illegal Recruitment constituting economic sabotage, the Court hereby
sentences her to suffer the penalty of life imprisonment (reclusion perpetua)
and a fine of One Hundred Thousand Pesos (P100,000.00). 19

Q Was there any consideration for your employment abroad

as promised by Elma Romero?
xxx xxx xxx

Hence, this appeal.

For the promise to be deployed as factory worker in
Taiwan?

Accused-appellant contends that there was no misrepresentation nor misappropriation on her part
because the money paid by complainant Doriza Dapnit was for the purpose of facilitating the
processing of the latter's passport and visa only as indicated in the receipts issued to the complainant
and not in consideration of a promised job placement abroad.

A She told me that I will have to pay the full payment.

Q How much was the full payment as told to you by Elma
Romero?

We do not agree.
The elements of estafa in general are: (1) that the accused defrauded another (a) by abuse of
confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary
estimation is caused to the offended party or third person. 20
In the instant case, all the elements of estafa are present because complainant Doriza Dapnit gave
the total amount of P21,000.00 to accused-appellant on the latter's promise that she will be sent to
Taiwan as a factory worker as soon as she paid the placement fee. It will be observed that accusedappellant gave complainant the distinct impression that she had the power or ability to send people
abroad for work so that complainant was convinced to give her the money she demanded to enable
her to be employed as a factory worker in Taiwan. Furthermore, accused-appellant's defense that she

A P21,000.00.
Q Were you able to pay this full amount of P21,000.00?
A Yes, sir.
xxx xxx xxx
Q Do you have receipt corresponding to that payment?

11
A Yes, sir. 21

A Elma Romero promised us that we could leave for abroad

and from April 1 we were told to wait up to April 4, sir.

From the foregoing testimony, accused-appellant cannot claim that complainant paid her only for
the processing of her travel documents and not in consideration of finding a job for her in Taiwan.
Thus, accused-appellant is guilty of the crimes of estafa and illegal recruitment.

Q Were you able to live (sic) on April 4?

A No, sir.

The contention of the accused-appellant that she cannot be convicted of large-scale illegal
recruitment which requires at least (3) persons to be victimized considering that only one victim
testified against her while the other two complainants executed a joint affidavit of desistance which
resulted in the dismissal of their complaints against her is without merit.

xxx xxx xxx

Q How much was the placement fee?

The records show that aside from complainant Doriza Dapnit, complainant Bernardo Salazar and
Richard Quillope testified that they were both victims of accused-appellant's illegal recruitment
activities. Bernardo Salazar's testimony is as follows:

A Eighteen thousand pesos, sir. (18,000.00).

Q Did you give this eighteen thousand (P18,000.00) pesos
to Elma Romero?

Q And at the middle part of January 1989 where did you see
Elma Romero?

A Yes, sir.
A At the RSI Enterprises, sir.
Q Was there any receipt of your P18,000.00 that you give to
Elma Romero?

Q What was your purpose in going to RSI Enterprises?

A Yes, sir.

A My purpose in going to her office is to apply for

employment abroad.
xxx xxx xxx
xxx xxx xxx

Q After you have pay (sic) the P18,000.00 to Elma Romero

what transpired next?

Q Were you able to talk with Elma Romero with respect to

your employment abroad as factory worker in Taiwan?

A We keep (sic) on talking to Elma Romero, sir.

A Yes, sir.
Q What was the result of that conversation?

Q Do you have any companion, Mr. Witness in applying for

employment abroad?

A Elma Romero promised us employment in Taiwan, sir?

A Yes, sir.

Q Did Elma Romero mentioned (sic) about your salary?

Q Will you please tell the Honorable Court who are your
companion (sic) you are referring to?

A Yes, sir.

A My other companions are Richard Quillope and Doriza

Dapnit, sir.

Q How much is the salary?

A Six hundred dollars ($600.000), sir.
Q After the meeting with Elma Romero and she promised
you that she will sent (sic) you to Taiwan, what transpired
after that?

xxx xxx xxx

Q When you were not able to leave for Taiwan, what did you
do next?

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A When we were not able to leave for Taiwan we proceed
(sic) to the Office of the Anti-illegal Recruitment at the
POEA to tell our problem.
(TSN, April 5, 1990, pp. 5-11) 22
The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint Affidavit of
Desistance does not serve to exculpate accused-appellant from criminal liability insofar as the case
for illegal recruitment is concerned since the Court looks with disfavor the dropping of criminal
complaints upon mere affidavit of desistance of the complainant, particularly where the commission
of the offense, as is in this case, is duly supported by documentary evidence. 23

# Footnotes
1 Penned by Judge Benjamin V. Pelayo.
2 Criminal Case Nos. 78508 and 78509 were dismissed by the trial court by the
Order dated Jan. 18, 1990.
3 Rollo, p.4.
4 Id., at p. 7.

Generally, the Court attaches no persuasive value to affidavits of desistance, especially when it is
executed as an afterthought. It would be a dangerous rule for courts to reject testimonies solemnly
taken before the courts of justice simply because the witnesses who had given them, later on,
changed their mind for one reason or another; for such rule would make solemn trial a mockery and
place the investigation of truth at the mercy of unscrupulous witness. 24

5 T.S.N., December 30, 1989, p. 9.

Complainants Bernardo Salazar and Richard Quillope may have a change of heart insofar as the
offense wrought on their person is concerned when they executed their joint affidavit of desistance
but this will not affect the public prosecution of the offense itself. It is relevant to note that "the right
of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to
the sovereign power instinctly charged by the common will of the members of society to look after,
guard and defend the interests of the community, the individual and social rights and the liberties of
every citizen and the guaranty of the exercise of his rights." 25 This cardinal principle which states
that to the State belongs the power to prosecute and punish crimes should not be overlooked since a
criminal offense is an outrage to the sovereign State. As provided by the Civil Code of the
Philippines:

8 Exhibit "D", Original Records, p. 126.

Art. 2034. There may be a compromise upon the civil liability arising from an
offense; but such compromise shall not extinguish the public action for the
imposition of the legal penalty.

6 Exhibit "B", Original Records, p. 126.

7 Exhibit "C", Original Records, p. 126.

9 T.S.N., December 21, 1989, pp. 7-8 & 11-12.

10 Exhibit "E", Original Records, p. 124.
11 Exhibit "A", Original Records, p. 125.
12 T.S.N., April 5, 1990, pp. 5-7
13 Exhibits "F-J", Original Records, pp. 127-128.
14 Exhibit "K", Original Records, p. 129.

The trial court had correctly found accused-appellant ELMA ROMERO guilty beyond reasonable
doubt of the crime of ILLEGAL RECRUITMENT COMMITTED IN LARGE SCALE.
The penalty imposed under Article 39 of the New Labor Code for illegal recruitment committed in
large scale is life imprisonment. However, life imprisonment is not synonymous or interchangeable
with reclusion perpetua.Accordingly, reclusion perpetua should be deleted from the appealed
decision.
WHEREFORE, the decision of the trial court is hereby AFFIRMED with the modification that the
term "reclusion perpetua" be deleted from said decision.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

15 T.S.N., April 5, 1990, p. 18.

16 Id., at p. 19.
17 Original Records, p. 90.
18 Exhibits "7", Original Records, p. 73.
19 Regional Trial Court's Decision, Original Records, p. 237.
20 People vs. Ong, 204 SCRA 942 [1991].
21 T.S.N., December 20, 1989, pp. 9-11.

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22 Appellee's Brief, pp. 8-10.
23 Quinio vs. Borbolla, 79 SCRA 155 [1977].
24 Castillo vs. Calanog, Jr., 199 SCRA 75 [1991].

25 United States vs. Pablo, 35 Phil., 94 [1916].