EN BANC

[G.R. No. 129535. July 20, 1999.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CALIXTO
RECONES, CARLOS WAHING and PABLO DEGAMO, alias
"OBLOY", accused.

PABLO DEGAMO, alias "OBLOY", accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
Appellant, together with co-accused Recones and Wahing, was charged with murder for the killing of
Tranquilino Garate, a 67-year old retiree on July 7 (17), 1993. The records show that appellant and
his co-accused alighted from a tricycle in front of a waiting shed where Garate was sitting. He was
suddenly mauled by Wahing and Recones while being held by appellant and thereafter, hit with stone
marker or "mojon" on the head four times by Recones which caused his death. After the assault, they
all fled together from the crime scene. Appellant pleaded not guilty and interposed the defense of
denial disclaiming any participation in the assault and contending that his failure to pacify his coaccused should not be taken against him. The trial court, in appreciating treachery, evident
premeditation and abuse of superior strength rendered a verdict of conviction and sentenced appellant
to death, although the same was still proscribed by the Constitution. It found that appellant conspired
with his co-accused in killing the victim. It ordered appellant to pay P50,000 as indemnity but,
however, failed to consider the testimony of the widow of the deceased who testified on her suffering
and pain caused by the death of her husband, herein Garate. Hence, this appeal.
The Supreme Court held that except for strong or valid reasons, factual findings of the trial court are
accorded due respect and are generally not disturbed on appeal; that treachery is appreciated even in
frontal attack where the same was so swift and sudden that the victim was not given the slightest
opportunity to defend himself; that abuse of superior strength is absorbed in treachery; that evident
premeditation cannot be appreciated where the prosecution failed to show the time when the offender
determined to commit the crime, the act manifestly indicating that he had clung to his determination
and a sufficient time interval between determination and execution of the crime to allow him to
reflect upon the consequences of his act; and that the proper imposable penalty for murder at the time
of the commission of the offense in July, 1993 is reclusion temporal in its maximum period to death.

In the absence of any mitigating or aggravating circumstance, reclusion perpetua was imposed on
appellant who was further adjudged to pay moral damages in the amount of P50,000.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF TRIAL COURT,
GENERALLY ACCORDED RESPECT ON APPEAL. Factual findings of the trial courts are
accorded due respect by this Court and are generally not disturbed on appeal except for strong or
valid reasons. No such strong or valid reason is present in this case. The trial court correctly gave
credence to the testimonies of prosecution witnesses Amodia and Belamala. Not being prompted by
ill-motive, they testified against accused-appellant. In fact, their testimonies correspond in all
material points. The defense could not even cite any discrepancy in their testimonies. After carefully
going over the pieces of evidence presented by both parties, this Court finds that the trial court did
not overlook any material point to justify his acquittal. On the contrary, the trial court correctly found
accused-appellants guilt to have been satisfactorily established beyond a shadow of doubt.
2. CRIMINAL LAW; CONSPIRACY; WHEN APPRECIATED. Conspiracy exists when two or
more persons come to an agreement concerning the commission of a felony and decide to commit it.
Proof of a previous agreement to commit a felony is not necessary to establish conspiracy, it being
sufficient that the acts of the accused, before, during, and after the commission of the felony,
demonstrate its existence. TaHIDS
3. ID.; ID.; CASE AT BAR. Conspiracy was appropriately inferred from the following
circumstances, to wit: (1) accused-appellant was in the company of Recones and Wahing in the
afternoon of July 7, 1993; (2) upon seeing Garate at the waiting shed, the trio alighted from the
motorcycle and ganged up on Garate with Recones and Wahing raining blows on Garate in the
presence of accused-appellant who did nothing to stop his companions; (3) when Garate attempted to
flee, accused-appellant, together with Recones and Wahing, pursued him; (4) when accused-appellant
caught up with Garate, he gripped the latter tightly, thereby effectively preventing any possible
escape; (5) he, likewise, blocked the path of Garate when the latter attempted to flee towards the
safety of his house; (6) accused-appellant was holding Garate while Recones and Wahing were
raining blows on the victim; (7) accused-appellant did not stop Recones when the latter hit Garate on
the head with a stone marker; and finally, (8) accused-appellant fled from the crime scene together
with the two assailants. Taken collectively, these circumstances clearly and satisfactorily provide the
bases for this Court's finding that Recones, Wahing and accused-appellant acted in concert with each
other in killing Garate. Although accused-appellant did not deliver the fatal blow, he remains
accountable for the death of the latter on the principle that the act of one is the act of all.
4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; CONDITIONS AND
ESSENCE. "Treachery may be considered as a qualifying circumstance when the following two
conditions are present: (a) the employment of means, methods or forms of execution to ensure the
safety of the malefactor from defensive or retaliatory acts on the part of the victim; and (b) the
deliberate adoption by the offender of such means, methods or forms of execution. The essence of
treachery is the sudden and unexpected attack without the slightest provocation on the part of the
person attacked." Treachery is present when an unarmed victim is attacked swiftly and unexpectedly.

5. ID.; ID.; ID.; APPRECIATED EVEN WHEN ATTACK IS FRONTAL; CASE AT BAR. In the
instant case, Garate was sitting at the waiting shed totally oblivious of the impending harm that
would befall him. From out of nowhere, the three assailants ganged up on him, rained blows on his
body and smashed his head with a solid stone marker. The attack being so sudden and swift, he was
not even given the slightest opportunity to defend himself. Though the attack was frontal, it could
still be considered treacherous considering the suddenness with which it was executed. The existence
of treachery, therefore, has been established with certainty and beyond reasonable doubt.
6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH;
APPRECIATED WHERE LONE VICTIM WAS ATTACKED BY THREE MALEFACTORS; CASE
AT BAR. Abuse of superior strength likewise attended the commission of the crime for three
malefactors fell upon a solitary victim. The assailants were all robust and at the prime of life while
the victim was already in his twilight years. Nevertheless, since treachery is found to have been
present, it necessarily absorbed the aggravating circumstance of abuse of superior strength.
7. ID.; QUALIFYING CIRCUMSTANCES; EVIDENT PREMEDITATION; ELEMENTS; NOT
PROVED IN CASE AT BAR. The aggravating circumstance of evident premeditation, however, is
not among the attendant circumstances. No evidence whatsoever was presented to show "(a) the time
when the offender determined to commit the crime; (b) an act manifestly indicating that the culprit
had clung to his determination; and (c) a sufficient interval of time between the determination and
execution of the crime to allow him to reflect upon the consequences of his act."
8. CRIMINAL LAW; MURDER; PENALTY IN CASE AT BAR. Article 248 of the Revised Penal
Code, prior to the amendments of R.A. No. 7659 which took effect on December 31, 1993, provides
for the proper imposable penalty for murder which is reclusion temporal in its maximum period to
death. Absent any modifying circumstance, whether aggravating or mitigating, the penalty to be
imposed should be the medium period which is reclusion perpetua. The lower court, therefore, erred
in imposing upon accused-appellant the supreme penalty of death, considering that at the time of the
commission of the offense, the imposition of the death penalty was still proscribed.
9. CIVIL LAW; DAMAGES; P50,000 MORAL DAMAGES AWARDED. The trial court also
erred in not granting moral damages on top of civil indemnity. The victim's widow testified that her
husband's death caused her suffering and pain. In line with prevailing jurisprudence, the award of
P50,000.00 as moral damages is proper. The amount of P50,000.00 as moral damages is awarded in
addition to the amount of P50,000.00 as civil indemnity.
DECISION
ROMERO, J p:
Calixto Recones, Carlos Wahing and Pablo Degamo were charged with murder in an Information 1
that reads: LLjur
"That on or about the 17th 2 day of July 1993, in the municipality of Clarin,
province of Bohol, Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused, conspiring, confederating and mutually
helping one another, with intent to kill and without justifiable cause, with
treachery by suddenly attacking the victim without giving him the opportunity
to defend himself, with evident premeditation and abuse of superior strength,

did then and there willfully, unlawfully and feloniously attack, assault and
strike or hit with the use of the remaining broken portion of a concrete land
marker one Tranquilino L. Garate who was unarmed and unaware of the attack,
thereby inflicting mortal injuries on the victim's body which resulted in the
untimely death of the said Tranquilino Garate; to the damage and prejudice of
the heirs of the victim in the amount to be proved during trial."

Recones was arrested first and tried separately. He pleaded guilty to the charge and is now serving
sentence in Muntinlupa. Wahing remains at large. Degamo was arrested on December 8, 1994. The
instant appeal therefore pertains only to accused-appellant Degamo.
When brought before the court, Degamo entered a plea of "not guilty." Trial on the merits ensued.
The facts as ascertained by the trial court are as follows:
The prosecution presented William Amodia as an eyewitness. Basically, he testified that he
personally knew Wahing and accused-appellant. The victim, Tranquilino Garate, was his uncle-inlaw. On July 7, 1993, Amodia was at the waiting shed in Bogtongbod, Clarin with Garate and
unidentified pregnant woman. From the waiting shed Amodia proceeded to the basketball court 20 to
30 meters away. While engaged in a conversation with Joseph Maramara and Maricho Belamala,
Amodia noticed a motorcycle driven by Ferdinand Legaspo. The motorcycle, with Recones, Wahing,
and accused-appellant as "back riders," passed by and stopped at the waiting shed. cdrep
The three back riders alighted from the vehicle and without provocation, Recones smashed the head
of Garate with a stone marker or "mojon". Recones hit Garate on the head four times. While Recones
was hitting Garate with the stone marker, Wahing was also pummeling Garate with his fists. Accusedappellant only watched and did nothing to stop his companions from hitting Garate. In fact, he acted
as lookout in case others might try to intervene. Recones, Wahing, and accused-appellant later left on
foot and proceeded to Sitio Dakit, Bogtongbod. Garate, 67 and a retired municipal treasurer expired
before reaching the hospital.
On August 15, 1993, Amodia met accused-appellant at the town plaza of Cordova, Cebu where the
latter confronted the former. Pointing a knife menacingly at Amondia's stomach, accused-appellant
threatened to kill the former if he continues to testify against him. cdrep
Another prosecution witness, Maricho Belamala testified that at five o'clock in the afternoon of July
7, 1993, she saw Recones, Wahing and accused-appellant at the waiting shed fronting Garate's house.
Wahing even greeted her when she passed by. When she chanced to look back, she was surprised to
see Recones, Wahing and accused-appellant pursuing Garate who was running towards his house.
Accused-appellant caught up with Garate first before the latter could reach the safety of his house.
Blocking off the victim while holding his hands, Recones and Wahing rained blows on their victim.
Not satisfied, Recones smashed the head of Garate with a stone marker. All the time, accusedappellant was watching but did nothing to stop his companions from hitting the unarmed Garate.
Recones hit Garate with the stone marker four times. When Garate fell into the canal bleeding, the
trio fled on foot towards the direction of Sitio Dakit, Bogtongbod.
For his part, accused-appellant admitted he was at the locus criminis at the time of its commission but
denied any participation in it. The trial court, being unconvinced, lent credence to the testimonies of

prosecution witnesses who categorically and positively identified accused-appellant as one of the
malefactors. Although accused-appellant did not deliver the fatal blows, the trial court decreed him
guilty of murder, as conspiracy can be inferred from the acts of the three culprits. The act of one was
deemed the act of another. Thus, the court a quo ruled:
WHEREFORE, the court finds the accused Pablo Degamo guilty as coconspirator in the murder of deceased Tranquilino Garate and punishable under
Art. 248 of the Revised Penal Code as amended by R.A. 7659 and there being
present the two aggravating circumstances of employing means to weaken the
defense or of the means of persons to insure or afford impunity and the
disregard due the offended party on account of his age and no mitigating
circumstances. (sic) The court hereby sentenced the accused the maximum
penalty of DEATH. (sic) The accused is further sentenced to indemnify the
heirs of the deceased in the amount of P50,000.00 and to pay the costs. prLL
SO ORDERED. 3
Obviously unsatisfied with the verdict, accused-appellant comes before this Court with the following
assignment of errors:
I. THE COURT OF ORIGIN HAS COMMITTED A GRAVE ERROR IN
NOT GIVING CREDENCE AND WEIGHT TO THE EVIDENCE
PRESENTED BY THE DEFENSE.
II. THE COURT OF ORIGIN HAS COMMITTED A SERIOUS ERROR IN
FINDING AND CONCLUDING THAT THE ACCUSEDAPPELLANT IS A CO-CONSPIRATOR IN THE MURDER OF
THE VICTIM IN THE CASE AT BAR. LLphil
The defense posits that accused-appellant enjoys the fundamental right to be presumed innocent.
Accordingly, his plea of "not guilty" must be construed in favor of his innocence. Accused-appellant
stresses that he did not participate in the commission of the crime although he was there at the place
at the time of its commission. Thus, his failure to pacify Recones should not be taken against him.
The above contentions are not well-taken. Consequently, accused-appellant's conviction must stand.
Under the first contention, the defense would like this Court to overthrow the findings of the trial
court for its failure to lend credence to his own avowals. This is unavailing. Factual findings of the
trial courts are accorded due respect by this Court and are generally not disturbed on appeal except
for strong or valid reasons. 4 No such strong or valid reason is present in this case.
The trial court correctly gave credence to the testimonies of prosecution witnesses Amodia and
Belamala. Not being prompted by ill-motive, they testified against accused-appellant. In fact, their
testimonies correspond in all material points. The defense could not even cite any discrepancy in their
testimonies.
After carefully going over the pieces of evidence presented by both parties, this Court finds that the
trial court did not overlook any material point to justify his acquittal. On the contrary, the trial court
correctly found accused-appellant's guilt to have been satisfactorily established beyond a shadow of
doubt. LexLib

The trial court correctly appreciated the presence of conspiracy among the malefactors. Conspiracy
exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Proof of a previous agreement to commit a felony is not necessary to establish
conspiracy, it being sufficient that the acts of the accused, before, during, and after the commission of
the felony, demonstrate its existence. 5
Conspiracy was appropriately inferred from the following circumstances, to wit: (1) accusedappellant was in the company of Recones and Wahing in the afternoon of July 7, 1993. (2) upon
seeing Garate at the waiting shed, the trio alighted from the motorcycle and ganged up on Garate with
Recones and Wahing raining blows on Garate in the presence of accused-appellant who did nothing
to stop his companions; (3) when Garate attempted to flee, accused-appellant, together with Recones
and Wahing, pursued him; (4) when accused-appellant caught up with Garate, he gripped the latter
tightly, thereby effectively preventing any possible escape; (5) he, likewise, blocked the path of
Garate when the latter attempted to flee towards the safety of his house; (6) accused-appellant was
holding Garate while Recones and Wahing were raining blows on the victim; (7) accused-appellant
did not stop Recones when the latter hit Garate on the head with a stone marker; and finally, (8)
accused-appellant fled from the crime scene together with the two assailants. Taken collectively,
these circumstances clearly and satisfactorily provide the bases for this Court's finding that Recones,
Wahing and accused-appellant acted in concert with each other in killing Garate. Although accusedappellant did not deliver the fatal blow, he remains accountable for the death of the latter on the
principle that the act of one is the act of all. cdll
The aggravating circumstances of treachery, evident premeditation and abuse of superior strength
allegedly attended the commission of the crime. "Treachery may be considered as a qualifying
circumstance when the following two conditions are present: (a) the employment of means, methods
or forms of execution to ensure the safety of the malefactor from defensive or retaliatory acts on the
part of the victim; and (b) the deliberate adoption by the offender of such means, methods or forms of
execution. The essence of treachery is the sudden and unexpected attack without the slightest
provocation on the part of the person attacked." 6 Treachery is present when an unarmed victim is
attacked swiftly and unexpectedly. 7 In the instant case, Garate was sitting at the waiting shed totally
oblivious of the impending harm that would befall him. From out of nowhere, the three assailants
ganged up on him, rained blows on his body and smashed his head with a solid stone marker. The
attack being so sudden and swift, he was not even given the slightest opportunity to defend himself.
Though the attack was frontal, it could still be considered treacherous considering the suddenness
with which it was executed. The existence of treachery, therefore, has been established with certainty
and beyond reasonable doubt.
Abuse of superior strength likewise attended the commission of the crime for three malefactors fell
upon a solitary victim. The assailants were all robust and at the prime of life while the victim was
already in his twilight years. Nevertheless, since treachery is found to have been present, it
necessarily absorbed the aggravating circumstance of abuse of superior strength.
The aggravating circumstance of evident premeditation, however, is not among the attendant
circumstances. No evidence whatsoever was presented to show "(a) the time when the offender
determined to commit the crime; (b) an act manifestly indicating that the culprit had clung to his
determination and (c) a sufficient interval of time between the determination and execution of the
crime to allow him to reflect upon the consequences of his act." 8

Article 248 of the Revised Penal Code, prior to the amendments of R.A. No. 7659 which took effect
on December 31, 1993, provides for the proper imposable penalty for murder which is reclusion
temporal in its maximum period to death. Absent any modifying circumstance, whether aggravating
or mitigating, the penalty to be imposed should be the medium period which is reclusion perpetua.
The lower court, therefore, erred in imposing upon accused-appellant the supreme penalty of death,
considering that at the time of the commission of the offense, the imposition of the death penalty was
still proscribed.
The trial court also erred in not granting moral damages on top of civil indemnity. The victim's
widow testified that her husband's death caused her suffering and pain. In line with prevailing
jurisprudence, the award of P50,000.00 as moral damages is proper. LLjur
One last note: This Court has found a glaring discrepancy between the allegation in the Information
and the testimonies of witnesses regarding the date of the commission of the crime. The Information
alleged that the crime was perpetrated on July 17, 1993 while the witnesses testified that the incident
occurred on July 7, 1993. The defense has not raised any objections; nor did the prosecution, move
for the Information to be amended. Nonetheless, this Court considers this matter merely a
typographical error that would not in any way influence the disposition of the case.
WHEREFORE, the decision of the court a quo finding accused-appellant Pablo Degamo guilty of
murder is AFFIRMED but the penalty imposed upon him of death is changed to reclusion perpetua.
The amount of P50,000.00 as moral damages is awarded in addition to the amount of P50,000.00 as
civil indemnity.
Costs against accused-appellant. prcd
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Panganiban, J., concurs in the result.

EN BANC
[G.R. No. 110617. December 29, 1994.]
GERUNCIO H. ILAGAN, CLARO PION and ROSENDO PION,
petitioners, vs. HON. COURT OF APPEALS, HON. ARTURO A.
ROMERO, SALVADOR Q. QUIMPO and HOMETRUST
DEVELOPMENT CORPORATION, respondents.

DECISION

REGALADO, J p:

This case presents another instance of the mode of advocacy that bedevils our criminal
justice system, evoking thereby the jeremiad of herein respondent corporation against the abuse
of certiorari for unnecessary delay in the resolution of a mere interlocutory order. Indeed,
considering its revelations and the supporting annexes to its comment, 1 this appeal as initially
resolved by the First Division was advisedly accepted by the Court En Banc so that we may
write finis to such a simple incident as a motion to quash which for years has regrettably held up
the adjudication on the merits of the main criminal actions. cdrep
The records show that on July 21, 1992, eight information were filed and docketed as
Criminal Cases Nos. C-40482 to C-40489 in the Regional Trial Court, Branch 120, Kalookan
City, charging herein petitioners Geruncio H. Ilagan, Claro Pion and Rosendo Pion as coconspirators in the crime of estafa.
The information in Criminal Case No. C-40482 2 contained the following accusatory
allegations:
That on or about covering the period from July, 1990 up to
December, 1991 in Kalookan City, MM, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused bei(ng) then the President,
Finance Manager and Sales Director, respectively, of the Apple Realty and
Development Corporation, a Corporation duly appointed Agent of the
HOMETRUST DEVELOPMENT CORPORATION, herein represented by its
Manager, one SALLY S. GO, defrauded and deceived the latter in the
following manner, to wit: said accused conspiring and confederating with one
another, by means of false manifestations and fraudulent representations which
they made to the prospective lots and houses and lots buyers, namely: Erlinda
Sayasa, Rogelio Damasco, Gina G. Teston, Filomena Lanoz(o), Natividad
Diaz, Florida Gargoles and Marce(l)ita Ranara, that is, by representing
themselves that they are authorized to collect/receive and issue receipts of
payments from said buyers, accused knowing fully well that they are not
authorized to do so, induced and convinced herein buyers to give and deliver,
as in fact, the latter did give and deliver to said accused the total amount of
P353,500.00, Philippine Currency, who instead of remitting the same amount
to the Hometrust Development Corporation, with deliberate intent to defraud,
did then and there wilfully, and unlawfully and feloniously misapply,
misappropriate and convert to their own personal use and benefit the said
amount and despite repeated demands made upon them, refused and failed and
still fail and refuse to restitute the same, to the damage and prejudice of the
said Corporation, in the aforementioned total amount of P353,500.00.
(Corrections in parentheses ours.)

On the other hand, in Criminal Case No. C-40483, 3 the information alleged as
follows:
That on or about the first week of June to Nov. 23, 1991 in Kalookan
City, MM, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then a President, Finance Manager and Sales
Director, respectively, of the Apple Realty and Development Corporation,
conspiring and confederating with one another, defrauded and deceived the
HOMETRUST DEVELOPMENT CORPORATION, herein represented by its
MANAGER, one SALLY S. GO, in the following manner, to wit: said accused
being then duly appointed as Agents of the said Corporation in a Contract of
Agency dated July 30, 1990 and they are authorized to sell lots and/or houses
and lots to prospective buyers on a commission basis with the restrictions
however, that herein Agents cannot receive any form of payment from buyers
as well as to issue any receipt therefor, accused knowing fully well of the said
agreement the terms and conditions of which are embodied in the said
Contract, induced and convinced one MARCELITA RANARA to buy and
purchase lots and/or house and lots and receive payments and issue receipts
therefor, as in fact herein complainant did give the total amount of P24,000.00
to said accused, representing as the reservation fee/downpayment of the lots
and/or houses and lots purchase price, when in truth and in fact, they are not
entitled to do so, much less, have no personality to collect whatever amount
from said prospective buyers, but said accused, once in possession of the said
amount, with deliberate intent to defraud, did then and there wilfully,
unlawfully and feloniously misapply, misappropriate and convert to their own
personal use and benefit the said amount, and despite repeated demands made
upon them to return/deliver the said amount, failed and refused and still fail
and refuse to restitute the same, to the damage and prejudice of the
complainant thereof, in the aforementioned amount of P24,000.00, Philippine
Currency.
Uniformly, all the indictments in Criminal Cases Nos. C-40484 to 40489 4 contained
the same allegations as those in Criminal Case No. C-40483, except with respect to the offended
party, the date of commission of the offense, and the amount subject of the offense, thus:
CASE NO. OFFENDED PARTY DATE OF COMMISSION AMOUNT
C-40484 Rogelio Damasco April 30, 1991 to P60,000.00
August 22, 1991
C-40485 Gina G. Teston June, 1991 to 169,000.00
November 4, 1991
C-40486 Natividad Diaz May, 1991 to July, 1991 19,000.00
C-40487 Erlinda Sayasa July 21, 1991 to 133,500.00
October 18, 1991
C-40488 Filomena Lanozo May, 1991 to July, 1991 19,000.00
C-40489 Florida Gargoles May, 1991 to July, 1991 29,000.00

According to petitioners, on July 30, 1992 they moved to quash the information in
Criminal Cases Nos. C-40483 to C-40489 on the ground of duplicity of offenses charged
therein. The same was dismissed by the trial court in its order of December 10, 1992 which is
hereunder reproduced:
Acting on the "Motion to Quash" and the "Opposition" thereto, and
considering, as urged, that each Information filed against the accused in Crim.
Cases Nos. 40482, 40483, 40484, 40485, 40486, 40487, 40488 and 40489
indubitably show different private complainants involving different
transactions committed on different dates, which assertion is further reinforced
by the averment in the affidavit-complaints executed by the complainants in
each (of the) aforesaid criminal cases, the movant's contention therefore that
the ground alleged in the Motion to Quash is within the provision of Sec. 3,
Rule 117, is untenable.
The applicable rule on the question of duplicitous Information is Sec. 2(e),
Rule 117, not Sec. 3 of Rule 117 as urged.
As correctly pointed out by the public prosecutor, the duplicitous Information
presupposes one or more offenses contained in one or (a) single Information
under Sec. 2(e), Rule 117, Rules of Court.
But read as it should be, each Information here clearly alleges only one offense
for one single act, consequently, the Rule in question does not apply.
Accordingly, the Motion to Quash is hereby DENIED. 5
Unfazed, and obviously for the same purpose since they raised exactly the same
contentions, petitioners sought the extraordinary writ of certiorari and prohibition from the
Court of Appeals to set aside the aforesaid denial order of the trial court. In its decision 6 in CAG.R. SP No. 31021 promulgated on June 22, 1993, said appellate court made short shrift of the
pretensions of petitioners in these terse observations:
Petitioners allege that the information are duplicitous and the trial
court should have quashed them. They contend that the complainants in
Criminal Case No. 40482 and the individual complainants in the seven other
cases (Criminal Case No. 40483-40489) are one and the same and that the acts
alleged in the first case (No. 40482) to have been committed during the period
July, 1990 to December, 1991 are the same acts charged individually in the
other seven cases (Nos. 40483-40489) on dates covered by the same period
alleged in the first case. Petitioners argue that in refusing to quash the
informations, the trial court committed a grave abuse of discretion. LLjur
These contentions are without merit. To be sure, an information is
considered duplicitous and therefore subject to dismissal if it charges more
than one offense except in cases in which a single punishment is prescribed for
various offenses, (Rule 117, Sec. 3[e]). In the case at bar, each information
charges only one offense of estafa and, therefore, there is no basis for moving
to quash on the ground of duplicity of offense.

Nonetheless, in an apparent gesture of understanding accommodation and by way of

guidance to petitioners on the error of their ways even on such elementary procedural matters,
respondent court deigned to proceed further and extended this solicitous explanation to them:
What probably petitioners want to say is that for the same act alleged
to constitute the crime of estafa they are being held liable to two complainants.
For the theory of the prosecution appears to be that during the period July 1990
to December 1991, petitioners, as agents of the respondent Hometrust
Development Corp. defrauded and deceived both Hometrust Development and
the lot buyers by representing to the latter that they (petitioners) were
authorized to receive payments when in fact they were not, and were thus able
to collect from the lot owners the total amount of P353,000.00 which they
subsequently misappropriated and converted to their personal use and benefit.
For this reason eight informations were filed against petitioners from which it
is clear that the cases involve different parties and amounts and that the acts
alleged to constitute estafa were committed on different dates, to wit:
xxx xxx xxx
Thus for every single act of misappropriation both those from whom
the amounts were received and the Hometrust Development to which the
payments were intended have brought estafa cases against the herein
petitioners in (the) latter's capacity as president, finance manager and sales
director respectively of the Apple Realty and Development Corp., sales agent
(without authority to receive payments) of Hometrust Development Corp. It is
clear that each information charges only one offense. 7
That was all, that was enough, and that was correct. In fine, respondent Court of
Appeals frontally and succinctly confronted the sole issue of the alleged multifariousness of the
informations which was the same and only ground invoked by petitioners in both the trial court
and the respondent court. It did not digress into the arcanum of the application to said criminal
cases of the rule on a delito continuado or the inapplicability of a supposed non-existent rule of
litis pendentia as applied to double jeopardy, as was done during the deliberations in this case.
Rationally, it did not have to and, legally, it could not do so.
For, in no uncertain terms, Section 2, Rule 117 of the 1985 Rules on Criminal
Procedure, as intentionally amended for that purpose, mandatorily provides that "(t)he motion to
quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the
factual and legal grounds therefor and the court shall consider no grounds other than those
stated therein, except lack of jurisdiction over the offense charged" (Emphasis supplied).
All the way from the lower court, through the respondent court, and now before this
Court, petitioners have at least been consistent in obdurately cleaving and limiting their plaint to
the lone issue of supposed duplicitous informations. We cannot, therefore, conceive of how the
foregoing pithy dispositions of the two courts before us could have failed to put that matter to
rest. We also cannot understand why, despite the aforecited prohibition in Rule 117, this Court
should still be expected to consider other grounds intrusive upon the merits of the criminal cases
involved which would disturb the correct pronouncements of the two lower courts, instead of
summarily denying this petition. However, if only to dissipate intransigent reservations on our

decision on this incident, and to serve as bearings to the court a quo with regard to our ultimate
resolution thereof, we shall tread on the virtual merits of the estafa cases in question as the facts
thereof appear from the pleadings of record.
II
Indulging all inferences in favor of petitioners, what appears to be the implication in
their otherwise defective submissions is that despite the number of aggrieved parties, they
committed only one offense of estafa, and solely against respondent corporation which is now
the subject of Criminal Case No. C-40482. They would postulate that into said case should be
deemed integrated the separate offenses complained of by the seven individual lot buyers,
instead of the latter being made the respective subjects of Criminal Cases Nos. C-40483 to C40489.
What would seem to be the reason for that theory is that the essential allegations of
facts and the specifications of the offenses charged in the informations in Criminal Cases Nos.
C-40483 to C-40489 are supposedly the same as those stated in the information in Criminal
Case No. C-40482, hence respondent corporation is the offended party in all the eight
informations. They would rebuke respondent Court of Appeals for holding that the seven
complainants in the seven other informations are different from the complainant corporation in
Criminal Case No. C-40482. Their thesis would be that since the informations also state that
petitioners had defrauded respondent corporation, the allegations in the informations in Criminal
Cases Nos. C-40483 to C-40489 that the acts of petitioners caused damage and prejudice to the
individual complainants mentioned therein should be treated as superfluities.
Now, the function of the extraordinary writ of certiorari, as it is here invoked, would
be to annul and set aside a purported grave abuse of discretion by the prosecutor in filing several
informations involving, according to petitioners' theory, one and the same offense. This
argument, however, would completely ignore the fact that the ground of double jeopardy was
never raised in a motion to quash, hence that ground cannot be made the basis for attributing
grave abuse of discretion to the prosecutor. It is also inconsistent with the reasoning advanced
during our deliberations that these cases would fall within the purview of the constitutional right
against double jeopardy were it not for the failure of existing rules on criminal procedure to
address the instant situation. If ex hypothesi there is no rule on double jeopardy to govern such
situation and, for that matter, it has not even been invoked in the motion to quash, it is then
unpardonably absurd to claim that its non-application by the prosecutor could constitute grave
abuse of discretion on his part.
The core issue is, therefore, whether the offenses separately charged in the eight
informations actually constitute only one offense or were correctly considered as eight separate
crimes of estafa. No hearing on this issue was ever conducted in the court below as it was never
raised therein; and the sole ground of multifariousness was, since it could properly be, resolved
by the court only on the bases of the allegations in the motion to quash without introduction of
evidence aliunde.
The issue of double jeopardy should properly have been raised in and resolved by the
trial court in the first instance as it would necessitate evidence on the terms of the contracts or
documentation of the transactions with the lot buyers, the rights and obligations of the parties
thereunder, the binding effects thereof, the resolutory conditions or grounds for rescission, any
confirmation or repudiation thereof as may have been made by respondent corporation, and the

like. In any event, the present petition could also have been rejected outright, without thereby
causing any undue prejudice to the parties, even merely on the bases of the present contents and
state of the records before us.
1. The crime of estafa committed against respondent corporation, on the one hand, and
those committed against the lot buyers, on the other, are definitely separate felonies. They were
dictated by different criminal intents, committed under different modes of commission provided
by the law on estafa, perpetrated by different acts, consummated on different occasions, and
caused injury to different parties. cdrep
The crime of estafa against respondent corporation was committed through
unfaithfulness or abuse of confidence, specifically as provided in Paragraph 1(b) of Article 315,
Revised Penal Code. The operative act in the perpetration thereof was the failure to turn over or
deliver to respondent corporation the amounts collected by the accused, despite their duty to do
so. The felony was consummated on the dates when and at the places where such amounts were
to be delivered to respondent corporation under the agency agreement therefor or within a
reasonable time from receipt of the payments made by the lot buyers. The aggrieved party was
respondent corporation which suffered damages basically to the extent of the sums collected in
its behalf but not delivered or accounted for by the accused.
With respect to the lot buyers, the offense of swindling was committed by deceit or
false pretenses employed prior to or simultaneously with the commission of the fraud, more
specifically as provided in Paragraph 2(a) of the same article of the Code, that is, by the accused
falsely pretending to possess the power to collect the payments due from said buyers, despite the
peculiar but specific prohibition imposed by their said principal. The felony was perpetrated
through the aforesaid the deceitful misrepresentations which made possible the unauthorized
collections. The offense was consummated upon receipt by the accused of the amounts in the
different occasions and places where the payments were made by the lot buyers. The aggrieved
parties were the lot buyers who individually and separately suffered damages by being deprived
not only of their money but primarily of their property rights to and in the lots they respectively
purchased.
In either instance, the requisite ingredients of estafa as separate offenses are present,
that is, for respondent corporation the elements of abuse of confidence and damage, and for the
lot buyers the elements of deceit and damage. It has been held that estafa can be committed with
the attendance of both modes of commission, that is, abuse of confidence and deceit employed
against the same victim and causing damage to him. Thus, where an agent deliberately
misrepresented to the landowner the real position of the prospective buyer of the land in order to
induce said owner to agree to a lower price and, thereafter, the agent sold the land for the higher
amount which was actually agreed upon by him and the buyer, and he then clandestinely
misappropriated the excess, the crime of estafa was committed under both modes and he could
be charged under either. 8 Withal, it has also been held that such estafa is more properly
categorized as one committed through abuse of confidence. 9
With much more reason, therefore, should the offense of estafa against respondent
corporation be considered discretely and separately from those committed against the lot buyers
since, inter alia, different modes of commission and different parties are concerned.
Furthermore, to underscore the distinction between the estafa committed against respondent
corporation and the lot buyers, in estafa through abuse of confidence prior demand should be
made by the offended party on the accused to comply with the obligation before the latter may

be charged criminally, 10 but there is no such requirement where the estafa was committed
through deceit. 11
As earlier stated, the damage sustained by the lot buyers is distinct from that suffered
by respondent corporation since, primarily, the injury to the lot buyers was the deprivation of
their rights or the exercise thereof over the properties they respectively purchased. It has long
been the rule that actual damage is not necessary in estafa, as long as it is capable of pecuniary
estimation, hence mere temporary disturbance of property rights is equivalent to damage. 12
Even if the prejudice is temporary, that would suffice for the element of damage in estafa. 13
Here, the lot buyers involved in the criminal cases subject of the present recourse have, as a
direct consequence of the acts of petitioners, been deprived of the exercise of their rights of
actual or potential ownership over their properties since 1991 up to the present.
That the names of the seven lot buyers and the amounts they paid are mentioned in the
information in Criminal Case No. C-40482 does not have the significance claimed by
petitioners. These were only mentioned therein to explain the source of and the amounts
involved, the totality whereof constituted the element of damage to respondent corporation. On
the other hand, the statement in Criminal Cases Nos. C-40483 to C-40489 that the accused
"defrauded and deceived" respondent corporation is the phrase which should be considered as a
surplusage. The information in each of the latter seven cases specifically refers to the individual
complainant therein, alleges how the accused "induced and convinced (the complainant) to buy
and purchase lots and/or houses and lots and receive(d) payments and issue(d) receipts therefor,"
which amounts they represented "as the reservation fee/downpayment" for the properties sold
"when in truth and in fact they were not entitled to do so . . . to the damage and prejudice of the
complainant thereof." Such allegations constitute the estafa contemplated in Paragraph 2(a) of
Article 315, with the respective complainants as the offended parties separately from respondent
corporation.
2. Consequent to the theory of identity of the offense committed against respondent
corporation vis-a-vis those against the lot buyers, we reject petitioners' plea for the dismissal of
Criminal Cases Nos. C-40483 to C-40489 which were filed each with one lot buyer as the
offended party therein. While the felonious acts perpetrated against said lot buyers do not
constitute a delito continuado, there must be an explicitation as to whether, under the taxonomy
in the Spanish concept of concurso de delitos, the seven acts of defraudation under said
informations constitute material or real plurality, hence there are seven crimes of estafa, or
should be considered as in the nature of formal or ideal plurality, hence there is only one crime
of estafa. We rule that said seven cases fall under the category of concurso real, hence there are
seven juridically independent crimes involving said lot buyers.
The series of acts committed against the seven lot buyers was not the product of a
single criminal intent. The misrepresentation or deceit was employed against each lot buyer on
different dates and in separate places, hence they originated from separate criminal intents and
consequently resulted in separate felonies. 14 Furthermore, even assuming arguendo that the
defraudations were pursuant to an identical design, they were committed over a period of about
one and a half years and at substantial intervals both in time and in distance of situs. LLjur
More conclusive is the fact that, after the commission of one estafa, the accused could
not have had the foreknowledge as to when or whether they could replicate the same felony

against another victim still necessarily unknown. This lack of prevision on their part definitely
proves that the criminal intent entailed in a preceding swindle could not operate as the same
criminal intent in futuro as regards another subsequent estafa. 15 The inescapable conclusion is
that, all told, a total of eight crimes of estafa were actually committed by the accused against
different victims.
3. There is, therefore, no cogency in the proposition that the prosecutor acted with
grave abuse of discretion in filing eight separate charges of estafa, or, for that matter, that the
trial court and respondent court are guilty of the same discretional error in refusing to quash the
eight informations.
If, as petitioners seem to apprehend, the adverse actions of two lower courts could
create a scenario of multiple prosecutions for the same offense or, more candidly expressed, of
double jeopardy, then this is neither the procedural stage nor the proper occasion to pass upon
that possibility. For, squarely imputable to petitioners is the evident lack of factual basis for and
a grossly defective presentation of that issue for this Court to rule thereon in this proceeding and
at this time.
However, this observation would not foreclose relief to petitioners if at the trial of this
case the evidence presented and the developments therein suffice to establish the supervenient
fact that indeed there could possibly be a breach of the rule of double jeopardy. Under Section 8
of Rule 117, they can still hereafter raise that defense of non bis in idem, provided that they can
lay the evidentiary bases therefor and refute from the standpoint of substantive penal law what
was earlier said on the nature and the non-identity of the several crimes of estafa involved
which, to repeat, we pronounced purely on the bases of existing records sans the benefit of any
evidentiary fact since none has been adduced.
ACCORDINGLY, the impugned decision of respondent Court of Appeals is
AFFIRMED and the instant petition is hereby DENIED, with treble costs against petitioners.
This judgment is immediately executory and, upon entry thereof in due course, the record of this
case is ordered to be forthwith remanded to the court a quo which is hereby DIRECTED to take
appropriate action therein with all deliberate and practicable dispatch.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan, JJ.,
concur.

The information in Criminal Case No. C-40482 alleged that on or about the period
from July 1990 to December 1991, in Kalookan City:
(1) The accused were the President, Finance Manager and Sales Director,
respectively of the Apple Realty and Development Corporation;
(2) The Apple Realty and Development Corporation was appointed an agent of
the Hometrust Development Corporation to sell houses and lots;
(3) The accused defrauded and deceived the Hometrust Development
Corporation in the following manner:
By means of false manifestation and fraudulent representation, that is, by
misrepresenting that they were authorized to collect and receive payments
from buyers of the houses and lots and to issue the receipts therefor, when they
knew fully well that they were not authorized to do so, the accused, acting in
conspiracy and confederating with one another, were able to collect the total
amount of P353,500.00 from the following buyers:
Erlinda Sayasa
Rogelio Damasco
Gina G. Teston
Filomena Lanozo
Natividad Diaz
Florida Gargoles
Marcelita Ranara
Instead of remitting their collection to the Hometrust Development
Corporation, the accused unlawfully misappropriated and failed to restitute the
said amount to the damage and prejudice of the Hometrust Development
Corporation (Rollo, pp. 18-19).
The informations in Criminal Cases Nos. C-40483 to C-40489 uniformly alleged that
on or about the period from May 1991 up to November 1991:

Feliciano, J., is on leave.

Mendoza, J., took no part.

(1) The accused were the President, Finance Manager and Sales Director,
respectively, of the Apple Realty and Development Corporation;
Separate Opinions

QUIASON, J., concurring:

I concur with Mr. Justice Florenz Regalado that the informations in Criminal Cases
Nos. C-40483 to C-40489 did not allege the same offense charged in Criminal Case No. C40482.

(2) The accused were duly appointed agents of the Hometrust Development
Corporation to sell houses and lots on commission basis but were expressly
prohibited from receiving payments from the buyers or from issuing receipts of
such payments;
(3) The accused defrauded and deceived the Hometrust Development
Corporation in the following manner:

By receiving payment from the buyers when they were not authorized to do so
and by misappropriating the money.

EN BANC

The Supreme Court found appellant guilty only of the crime of homicide, and not murder. The Court
ruled that the plea of self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but in itself is extremely doubtful. Appellant's
tendency to invoke a melange of defenses rendered his testimony dubious. While he admitted the
commission of the crime in order to preserve his own life, he maintained that the victim accidentally
stabbed himself. His claim showed ambivalence. Accident presupposes lack of intention to stab the
victim, while self-defense presumes voluntariness, induced only by necessity. If there is truth to
either of his claim, his natural course of action was to assist the victim, or at the very least, report the
incident to the authorities. The justifying circumstance of self-defense cannot be appreciated
considering his flight from the crime scene and his failure to inform the authorities of the incident.
The Court also ruled that the trial court erred in concluding that treachery attended the commission of
the crime. Treachery cannot be presumed, but must be proved by clear and convincing evidence or as
conclusively as the killing itself. Witness Fajardo testified that appellant and victim Guban were
"grappling with each other" and that prior to the stabbing, they were shouting at each other. In the
said scenario, it cannot be said that Guban was unprepared to put up a defense, such as hitting
appellant, or that the latter's assault was sudden. The Court also ruled that the trial court erred in
appreciating the aggravating circumstance of nocturnity or nighttime. No sufficient evidence was
offered to prove that appellant deliberately sought the cover of darkness to accomplish his criminal
design.

[G.R. No. 124392. February 7, 2003.]

SYLLABUS

The accused failed to restitute the money to the damage and prejudice of the
buyers-complainants (Rollo, pp. 20-33).
While all the informations involve the same transactions and allege that the accused
had defrauded the Hometrust Development Corporation, a closer study thereof shows that the
estafa alleged to have been committed in Criminal Case No. C-40482 is not the same estafa
alleged to have been committed in Criminal Cases Nos. C-40483 to C-40489. The offense
charged in Criminal Case No. C-40482 was the failure of the agents to turn over their collections
to their principal, while the offenses charged in Criminal Cases Nos. C-40483 to C-40489 were
the collections of the purchase price by the agents from the customers (the individual
complainants in said criminal cases) without informing said buyers that they had no authority to
do so. To this extent, the buyers suffered a disturbance of their property rights.
||| (Ilagan v. Court of Appeals, G.R. No. 110617, [December 29, 1994])

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO

ABRAZALDO @ "PEDING," accused-appellant.

Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
Accused-appellant Federico Abrazaldo @ "Peding" was convicted of murder by the Regional Trial
Court of Dagupan City and was sentenced to suffer the supreme penalty of death. On automatic
review, appellant contended that the trial court erred in not appreciating his claim of self-defense and
in finding that treachery and taking advantage of nighttime attended the commission of the crime.

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; NOT ESTABLISHED

IN CASE AT BAR. Consistent is the jurisprudence that where self-defense is invoked, it is
incumbent upon the accused to prove by clear and convincing evidence that (1) he is not the unlawful
aggressor; (2) there was lack of sufficient provocation on his part; and (3) he employed reasonable
means to prevent and repel an aggression. On appeal, the burden becomes even more difficult as the
accused must show that the court below committed reversible error in appreciating the evidence.
Accused-appellant miserably failed to discharge the burden. To show that he was not the unlawful
aggressor, he testified that it was Guban who went to his house, threatened to kill him, hit him with
an iron pipe, and attacked him with a knife. Accused-appellant's testimony bears not only the vice of
falsity but also isolation. It is uncorroborated and even opposed by Marites, accused-appellant's own
sister and lone witness. Contrary to his testimony that Guban hit him on his forehead with a pipe,
Marites declared that accused-appellant sustained the wound on his forehead when he accidentally
bumped an artesian well. Instead of fortifying her brother's defense, she virtually affirmed the
prosecution's story by testifying that he created trouble in their compound, attempted to kill his uncle
Bernabe Quinto and killed Guban.
2. ID.; ID.; ID.; THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE OR THE
EXEMPTING CIRCUMSTANCE OF ACCIDENT CANNOT BE APPRECIATED CONSIDERING
APPELLANT'S FLIGHT FROM THE CRIME SCENE AND HIS FAILURE TO INFORM THE
AUTHORITIES OF THE INCIDENT. Ingrained in our jurisprudence is the doctrine that the plea
of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate
competent evidence but in itself is extremely doubtful. In the present case, accused-appellant's
tendency to invoke a melange of defenses renders his testimony dubious. While he admitted the
commission of the crime in order to preserve his own life, he maintained that Guban accidentally

stabbed himself. This shows ambivalence. Accident presupposes lack of intention to stab the victim,
while self-defense presumes voluntariness, induced only by necessity. Indeed, if there is truth to
either of his claim, his natural course of action was to assist the victim, or at the very least, report the
incident to the authorities. Certainly, the justifying circumstance of self-defense or the exempting
circumstance of accident cannot be appreciated considering accused-appellant's flight from the crime
scene and his failure to inform the authorities of the incident. Furthermore, that he did not surrender
the knife to the authorities is inconsistent with a clean conscience and, instead, indicates his
culpability of the crime charged.
3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT ESTABLISHED BY CLEAR
AND CONVINCING EVIDENCE OR AS CONCLUSIVE AS THE KILLING ITSELF. We find
that the trial court erred in concluding that treachery attended the commission of the crime. There is
treachery when the offender commits any of the crimes against persons employing means, methods
or forms in the execution thereof, which tend directly and specially to insure its execution, without
risk to himself arising from defense which the offended party might make. Treachery cannot be
presumed, it must be proved by clear and convincing evidence or as conclusively as the killing itself.
Fajardo testified that accused-appellant and Guban were "grappling with each other" and that prior to
the stabbing, they were shouting at each other. In this scenario, it cannot be said that Guban was
unprepared to put up a defense, such as hitting accused-appellant, or that the latter's assault was
sudden. We quote in verbatim the testimony of Fajardo, thus:
4. ID.; AGGRAVATING CIRCUMSTANCES; NOCTURNITY OR NIGHTTIME; NO SUFFICIENT
EVIDENCE TO PROVE THAT APPELLANT DELIBERATELY SOUGHT THE COVER OF
DARKNESS TO ACCOMPLISH HIS CRIMINAL DESIGN. The trial court likewise erred in
appreciating the aggravating circumstance of nocturnity or nighttime. For nocturnity to be properly
appreciated, it must be shown that it facilitated the commission of the crime and that it was purposely
sought for by the offender. By and itself, nighttime is not an aggravating circumstance. In the instant
case, no sufficient evidence was offered to prove that accused-appellant deliberately sought the cover
of darkness to accomplish his criminal design. In fact, Fajardo testified that there was a fluorescent
lamp sufficiently illuminating the scene of the crime.
5. ID.; ID.; CRIME WAS COMMITTED IN A PLACE WHERE PUBLIC AUTHORITIES ARE
ENGAGED IN THE DISCHARGE OF THEIR DUTIES; NOT APPLICABLE IN CASE AT BAR;
CRIME WAS COMMITTED AT THE COMPOUND OF APPELLANT WHERE NO PUBLIC
FUNCTION WAS BEING HELD. Neither can we sustain the trial court's finding that the
aggravating circumstance under paragraph (5) of Article 14, Revised Penal Code, i.e., that the crime
was committed in a place where public authorities were engaged in the discharge of their duties, is
present. It must be pointed out that this aggravating circumstance is based on the greater perversity of
the offender, as shown by the place of the commission of the crime, which must be respected. In this
case, the crime was committed at the compound of the accused-appellant where no public function
was being held. The arrival of the barangay authorities was precisely due to the trouble that had
commenced prior to the stabbing incident. Clearly, the said aggravating circumstance cannot be
considered. Moreover, under the present Rules, aggravating circumstances must be alleged,
otherwise, they cannot be appreciated. Being favorable to the accused, this new procedure may be
given retroactive effect. Except treachery, the other aggravating circumstances mentioned have not
been alleged in the Information.

6. CIVIL LAW; DAMAGES; TEMPERATE DAMAGES AWARDED IN LIEU OF ACTUAL

COMPENSATORY DAMAGES IN CASE AT BAR. On the trial court's award of actual damages
in the amount of P27,000.00, we find the same to be unsubstantiated. To be entitled to such damages,
it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable to the injured party. In the case at bar, the
prosecution failed to present any receipt to prove the claim for expenses incurred. Gregorio Guban,
the father of the victim, who shouldered the expenses for the wake and burial failed to submit receipts
to show the amount of such expenses. However, as the heirs of Guban did actually incur funeral
expenses, we are justified in awarding P25,000.00, not for purposes of indemnification, but by way
of temperate damages. Thus, we now hold that where the amount of the actual damages cannot be
determined because of the absence of receipts to prove the same, but it is shown that the heirs are
entitled thereto, temperate damages may be awarded. Such temperate damages, taking into account
the current jurisprudence fixing the indemnity for death at P50,000.00, should be one-half thereof, or
P25,000.00. This makes temperate damages equal to the award of exemplary damages, which is
likewise fixed at P25,000.00 in cases where its award is justified.
7. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND
REASONABLE DOUBT; APPELLANT'S GUILT HAS BEEN ESTABLISHED TO A DEGREE OF
MORAL CERTAINTY. In a last-ditch effort to exculpate himself, accused-appellant assails
Fajardo's testimony as tainted with inconsistencies and is "contrary to the normal course." Accusedappellant cannot invoke these alleged weaknesses in view of the principle that one who pleads selfdefense must rely on the strength of his own evidence and not on the weakness of that of the
prosecution. Even if the prosecution's evidence is weak, it is still credible considering accusedappellant's admission that he killed the victim. It bears emphasis that Fajardo's testimony clearly
points to him as the culprit. Not only did he pull out his knife, stabbed Guban and ran away. Fajardo
also reiterated what Guban uttered to him, i.e., "I was stabbed by Feding Abrazaldo." As Guban had
succumbed to death and his opportunity to divulge the truth on his demise had been lost, we cannot
but cast a quizzical glance on accused-appellant's uncorroborated testimony. More so, when such
testimony was contradicted by his own witness who happened to be his sister. Standing alone against
the testimonies of the prosecution witnesses, accused-appellant's own account of the killing must
necessarily fail. We hold that his guilt has been established to a degree of moral certainty. The trial
court did not err in relying on the testimony of Fajardo, an eyewitness. Time and again, we have said
that we will not interfere with the judgment of the trial court in determining the credibility of
witnesses unless there appears on record some facts or circumstances of weight and influence which
have been overlooked or the significance of which has been misinterpreted. This is so because the
trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood.

DECISION

SANDOVAL-GUTIERREZ, J p:

10

For automatic review is the Decision 1 dated November 15, 1995 of the Regional Trial Court, Branch
44, Dagupan City in Criminal Case No. 95-01052-D, finding accused-appellant Federico Abrazaldo
guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the supreme
penalty of death and to indemnify the heirs of the deceased Delfin Guban the amount of P50,000.00
as indemnity and P27,000.00 as actual damages, plus costs.
In the Information dated August 3, 1995 filed with the trial court, accused-appellant was charged with
the crime of murder committed as follows:
"That on or about July 15, 1995 in the evening at barangay Pogo, Municipality
of Mangaldan, province of Pangasinan, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused armed with a bolo, with
intent to kill, treachery and evident premeditation, did, then and there wilfully,
unlawfully and feloniously stabbed DELFIN GUBAN Y GUINTO inflicting
upon him a stab wound which caused his death to the damage and prejudice of
his heirs. cACDaH
"CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659." 2
Upon arraignment, accused-appellant entered a plea of not guilty. 3 Forthwith, trial on the merits
ensued. The prosecution presented as its witnesses Rosendo Fajardo, SPO1 Ramie Petrache, SPO2
Roberto Fernandez, Dr. Alberto Gonzales and Gregorio Guban. Accused-appellant and his sister,
Marites Abrazaldo, took the witness stand for the defense.
The facts of the case as presented by the prosecution witnesses are as follows:
On July 15, 1995, at about 10:00 o'clock in the evening, at Barangay Pogo, Mangaldan, Pangasinan,
accused-appellant, then intoxicated, 4 attempted to hack his uncle, Bernabe Quinto, but instead, hit
the post of the latter's house. 5 The incident was reported to the barangay authorities, prompting
Delfin Guban, Rosendo Fajardo, Sr., Alejandro Loceste (all are members of the barangay tanod), and
Cesar Manaois to rush to the scene. Upon reaching the place, Fajardo heard accused-appellant
shouting at his uncle, "I will kill you!" Thereafter, he saw accused-appellant coming out of Quinto's
house with blood oozing from his forehead. 6 At that time, the place was well lighted by a flourescent
lamp. Guban tried to assist accused-appellant. However, for unknown reason, accused-appellant and
Guban shouted at each other and grappled "face to face." Accused-appellant pulled out his knife,
stabbed Guban at the abdomen 7 and ran away. When Fajardo got hold of Guban, the latter said, "I
was stabbed by Feding Abrazaldo." 8 Fajardo, together with the other barangay tanod, rushed Guban
to the Gov. Teofilo Sison Memorial Hospital where he was operated by Dr. Alberto Gonzales, a
Medical Officer III. But after a few hours, Guban died. Dr. Gonzales issued a Medico-Legal
Certificate stating that the cause of death was "stab wound, epigastrium, massive hemothorax right."
9
Gregorio Guban, the victim's father, testified that he was the one who spent for his son's funeral
expenses. For the burial, he spent P10,000.00; 10 for the 10-day funeral wake, P10,000.00; 11 for the
9th day novena, P3,000.00; 12 and for the hospitalization, P4,000.00, 13 or a total of P27,000.00.
On July 16, 1995, Fajardo learned that the knife used by accused-appellant in stabbing Guban was in
Salay, Pangasinan. Together with SPO2 Roberto Fernandez, Fajardo went to the house of Francisca
Velasquez, accused-appellant's aunt, and recovered the knife. 14

Invoking self-defense, accused-appellant presented a different version. On July 15, 1995 at about
10:00 in the evening, he was making fans inside his house at Barangay Pogo, Mangaldan,
Pangasinan. 15 His wife Lydia and children Mary Jane, Melvin and Christelle were with him.
Suddenly, Delfin Guban, who was then drunk, went to his house and shouted at him, saying, "Get out
Feding I will kill you!" 16 When accused-appellant went out, Guban hit him with an iron pipe.
Accused-appellant ran towards his house and got his two children. Guban, now armed with a knife,
followed him and they grappled for its possession. In the course thereof, both fell down. 17 It was
then that the knife held by Guban accidentally hit him. Accused-appellant did not know which part of
Guban's body was hit. Thereafter, he got the knife in order to surrender it to the police. 18
Marites Abrazaldo testified that accused-appellant is his brother. 19 On July 15, 1992, at about 6:00
in the evening, accused-appellant, Guban and Juan Quinto were engaged in a "drinking spree." 20 At
about 10:00 o'clock in that evening, accused-appellant caused trouble at the house of his uncle,
Bernabe Quinto. 21 He attempted to hack his uncle, but instead hit the post of the latter's house. 22
While running away from his uncle's place, he bumped an artesian well, causing a wound on his
forehead. 23 Afterwards, accused-appellant killed Guban. 24
On November 15, 1995, the trial court rendered a Decision, the decretal portion of which reads:
IcaHCS
"WHEREFORE, premises considered, the Court finds accused Federico
Abrazaldo @ Peding guilty beyond reasonable doubt of the crime of Murder
under Article 248 of the Revised Penal Code, as amended by Republic 7659,
and in view of the presence of the aggravating circumstances that the crime
was committed while the public authorities were engaged in the discharge of
their duties and that the crime was committed at nighttime, which aggravating
circumstances are not offset by any mitigating circumstance, accused Federico
Abrazaldo is hereby sentenced to suffer the penalty of Death.
"Accused Federico Abrazaldo is ordered to pay an indemnity of P50,000.00 to
the heirs of the deceased Delfin Guban. Accused is also ordered to pay the
heirs of the deceased Delfin Guban the total sum of P27,000.00 as actual
expenses, plus costs.
"SO ORDERED."
In appreciating treachery and the aggravating circumstances under paragraphs (5) and (6) of Article
14, 25 Revised Penal Code, the trial court held:
"We now come to the issue of whether or not evident premeditation was
present. The prosecution's evidence is wanting on this point. However, there is
no question that there was treachery as the accused embraced Delfin Guban
and suddenly stabbed him with knife. The victim was not in a position to
defend himself at the time of the attack. The deceased was stabbed without any
warning. He was given no chance to defend himself. Treachery, therefore,
qualifies the killing of the victim and raises it to the category of murder.
"The prosecution has established thru the testimony of Gregorio Guban that at
the time of the incident on July 15, 1995, the members of the barangay tanod,
namely: Rosendo Fajardo, Sr., Delfin Guban and Alfredo Laceste were

11

performing their duties as members of the barangay tanod. (See p. 6 tsn

September 18, 1995). This is an aggravating circumstance under paragraph 5,
Article 14 of the Revised Penal Code. The members of the barangay tanod who
are public authorities were engaged in the discharge of their duties at the time
of the stabbing incident. Besides, the incident was committed during nighttime,
that was 10:00 in the evening. Accused took advantage of the darkness of the
night for the successful consummation of his plan to kill Delfin Guban."
Accused-appellant, in his Appellant's Brief, ascribes to the trial court the following errors:
"I
THE HONORABLE TRIAL COURT ERRED IN NOT APPRECIATING THE
CLAIM OF SELF-DEFENSE BY THE ACCUSED TAKING INTO
CONSIDERATION THE CIRCUMSTANCE OF THE CASE.
II
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE
RECOVERY OF THE ALLEGED WEAPON USED IN STABBING VICTIM
AT THE HOUSE OF THE AUNT OF ACCUSED BOLSTERED THE CASE
AGAINST HIM DESPITE LACK OF SUFFICIENT EVIDENCE TO PROVE
ITS VERACITY.
III
THE HONORABLE TRIAL COURT ERRED IN APPRECIATING THE
TESTIMONY EXTRACTED BY THE PROSECUTION FROM DEFENSE
WITNESS MARITESS ABRAZALDO WHICH HAD NO SUFFICIENT
BASIS AT ALL.
IV
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT
TREACHERY ATTENDED THE STABBING OF THE VICTIM WITHOUT
SUFFICIENT BASIS TO PROVE THE SAME.
V
THE HONORABLE TRIAL COURT ERRED IN ASSUMING THAT
ACCUSED-APPELLANT TOOK ADVANTAGE OF NIGHTTIME IN
CONSUMING THE ACT.
VI
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE
CHARGE AGAINST ACCUSED-APPELLANT IS AGGRAVATED BY THE
FACT THAT THE VICTIM WAS IN THE PERFORMANCE OF HIS DUTY."
The Solicitor General, in the Appellee's Brief, asserts that in pleading self-defense, accused-appellant
admitted he killed the victim and, therefore, he must rely on the strength of his own evidence and not

on the weakness of that of the prosecution. Moreover, accused-appellant's version of the incident is
completely contradicted by the testimony of his sister. Also, the aggravating circumstance, under par.
(5) of Article 14, Revised Penal Code, was clearly established because during the incident, Guban, as
the Assistant Chief Tanod, was on duty and engaged in the maintenance of peace and order.
The Solicitor General though agrees with accused-appellant that there was no treachery. Evidence
shows that he and Guban shouted at each other and struggled "face to face" before the stabbing
incident. Thus, the assault was not sudden. Likewise, the Solicitor General is convinced that accusedappellant did not purposely and deliberately seek nighttime to perpetrate the commission of the
crime. HEaCcD
Consistent is the jurisprudence that where self-defense is invoked, it is incumbent upon the accused
to prove by clear and convincing evidence that (1) he is not the unlawful aggressor; (2) there was lack
of sufficient provocation on his part; and (3) he employed reasonable means to prevent and repel an
aggression. On appeal, the burden becomes even more difficult as the accused must show that the
court below committed reversible error in appreciating the evidence. 26

Accused-appellant miserably failed to discharge the burden. To show that he was not the unlawful
aggressor, he testified that it was Guban who went to his house, threatened to kill him, 27 hit him
with an iron pipe, 28 and attacked him with a knife. 29 We quote accused-appellant's testimony, thus:
"ATTY. CAMPOS:
xxx xxx xxx
Q You said a while ago that on July 15, 1995 at about 10:00 in the evening you
were in your house engaging in fan making, do you know of any
unusual incident that happened during that time?
A Delfin Guban came to my house and he was under the influence of liquor
and he shouted at me, sir.
Q And what did Delfin Guban shout at you?
A He said, "Get out Feding I will kill you."
Q After this Delfin Guban shouted at you, what happened next?
A When I went out of the house, I was already there infront of the house then
he hit me, sir.
Q You said Delfin Guban hit you, what instrument did he use in hitting you?
A He hit me with a pipe, sir.
xxx xxx xxx
Q After Delfin Guban hit you with that pipe, what happened next?

12

A I ran towards my house inside, then got my two children while Delfin Guban
followed me inside my house, sir.
Q When Delfin Guban followed you inside your house, what happened again?
A He was holding a knife and we grappled and during that time both of us fell
down, sir.
Q When you grappled with Delfin Guban, who was holding a knife, what
again happened?
A We grappled for the possession of the knife then we fell down and the knife
he was then holding pointed towards him and hit him. . . . 30 "
(Emphasis supplied)
The foregoing testimony bears not only the vice of falsity but also isolation. It is uncorroborated and
even opposed by Marites, accused-appellant's own sister and lone witness. Contrary to his testimony
that Guban hit him on his forehead with a pipe, Marites declared that accused-appellant sustained the
wound on his forehead when he accidentally bumped an artesian well. Instead of fortifying her
brother's defense, she virtually affirmed the prosecution's story by testifying that he created trouble in
their compound, attempted to kill his uncle Bernabe Quinto and killed Guban. 31
Ingrained in our jurisprudence is the doctrine that the plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any separate competent evidence but in itself is
extremely doubtful. 32 In the present case, accused-appellant's tendency to invoke a melange of
defenses renders his testimony dubious. While he admitted the commission of the crime in order to
preserve his own life, he maintained that Guban accidentally stabbed himself. This shows
ambivalence. Accident presupposes lack of intention to stab the victim, while self-defense presumes
voluntariness, induced only by necessity. 33 Indeed, if there is truth to either of his claim, his natural
course of action was to assist the victim, or at the very least, report the incident to the authorities.
Certainly, the justifying circumstance of self-defense 34 or the exempting circumstance of accident
cannot be appreciated considering accused-appellant's flight from the crime scene and his failure to
inform the authorities of the incident. Furthermore, that he did not surrender the knife to the
authorities is inconsistent with a clean conscience and, instead, indicates his culpability of the crime
charged. 35
In a last-ditch effort to exculpate himself, accused-appellant assails Fajardo's testimony as tainted
with inconsistencies and is "contrary to the normal course." Accused-appellant cannot invoke these
alleged weaknesses in view of the principle that one who pleads self-defense must rely on the
strength of his own evidence and not on the weakness of that of the prosecution. Even if the
prosecution's evidence is weak, it is still credible considering accused-appellant's admission that he
killed the victim. It bears emphasis that Fajardo's testimony clearly points to him as the culprit. Not
only did he pull out his knife, stabbed Guban 36 and ran away. 37 Fajardo also reiterated what Guban
uttered to him, i.e., "I was stabbed by Feding Abrazaldo." 38
As Guban had succumbed to death and his opportunity to divulge the truth on his demise had been
lost, we cannot but cast a quizzical glance on accused-appellant's uncorroborated testimony. More so,
when such testimony was contradicted by his own witness who happened to be his sister. Standing
alone against the testimonies of the prosecution witnesses, accused-appellant's own account of the
killing must necessarily fail. We hold that his guilt has been established to a degree of moral

certainty. The trial court did not err in relying on the testimony of Fajardo, an eyewitness. Time and
again, we have said that we will not interfere with the judgment of the trial court in determining the
credibility of witnesses unless there appears on record some facts or circumstances of weight and
influence which have been overlooked or the significance of which has been misinterpreted. This is
so because the trial court has the advantage of observing the witnesses through the different
indicators of truthfulness or falsehood. 39
However, we find that the trial court erred in concluding that treachery attended the commission of
the crime. There is treachery when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof, which tend directly and specially to insure its
execution, without risk to himself arising from defense which the offended party might make.
Treachery cannot be presumed, it must be proved by clear and convincing evidence or as
conclusively as the killing itself. Fajardo testified that accused-appellant and Guban were "grappling
with each other" and that prior to the stabbing, they were shouting at each other. In this scenario, it
cannot be said that Guban was unprepared to put up a defense, such as hitting accused-appellant, or
that the latter's assault was sudden. We quote in verbatim the testimony of Fajardo, thus:
"ATTY. CAMPOS:
Q They were not then fighting?
A They were grappling with each other and then he stabbed Delfin Guban.
xxx xxx xxx
Q In fact, they were shouting each other?
A Yes, sir.
Q What were they shouting against another?
A I could no longer understand because it was already night.
Q But they were shouting loudly, am I correct?
A Yes and there were many people." 40 (Italics supplied)
The trial court likewise erred in appreciating the aggravating circumstance of nocturnity or nighttime.
For nocturnity to be properly appreciated, it must be shown that it facilitated the commission of the
crime and that it was purposely sought for by the offender. By and itself, nighttime is not an
aggravating circumstance. 41 In the instant case, no sufficient evidence was offered to prove that
accused-appellant deliberately sought the cover of darkness to accomplish his criminal design. In
fact, Fajardo testified that there was a fluorescent lamp sufficiently illuminating the scene of the
crime. 42
Neither can we sustain the trial court's finding that the aggravating circumstance under paragraph (5)
of Article 14, Revised Penal Code, i.e., that the crime was committed in a place where public
authorities were engaged in the discharge of their duties, is present. It must be pointed out that this
aggravating circumstance is based on the greater perversity of the offender, as shown by the place of
the commission of the crime, which must be respected. 43 In this case, the crime was committed at
the compound of the accused-appellant where no public function was being held. The arrival of the

13

barangay authorities was precisely due to the trouble that had commenced prior to the stabbing
incident. Clearly, the said aggravating circumstance cannot be considered. Moreover, under the
present Rules, 44 aggravating circumstances must be alleged, otherwise, they cannot be appreciated.
Being favorable to the accused, this new procedure may be given retroactive effect. 45 Except
treachery, the other aggravating circumstances mentioned have not been alleged in the Information.
In the absence of any circumstance that would qualify the crime at bar to murder, accused-appellant
can only be held liable for homicide defined and penalized under Article 249 of the Revised Penal
Code. The prescribed penalty is reclusion temporal. Considering that there was neither mitigating nor
aggravating circumstance that attended the commission of the crime, the penalty has to be imposed in
its medium period, ranging from 14 years, 8 months and 1 day to 17 years and 4 months. Applying
the provisions of the Indeterminate Sentence Law, he should be sentenced to an indeterminate
penalty, the minimum of which is within the range of prision mayor, or 6 years and 1 day to 12 years.
The maximum thereof is within the range of reclusion temporal in its medium period, which is 14
years, 8 months and 1 day to 17 years and 4 months. 46
On the trial court's award of actual damages in the amount of P27,000.00, we find the same to be
unsubstantiated. To be entitled to such damages, it is necessary to prove the actual amount of loss
with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable to the injured party. 47 In the case at bar, the prosecution failed to present any receipt to
prove the claim for expenses incurred. 48 Gregorio Guban, the father of the victim, who shouldered
the expenses for the wake and burial failed to submit receipts to show the amount of such expenses.
49 However, as the heirs of Guban did actually incur funeral expenses, we are justified in awarding
P25,000.00, not for purposes of indemnification, but by way of temperate damages. 50

Thus, we now hold that where the amount of the actual damages cannot be determined because of the
absence of receipts to prove the same, but it is shown that the heirs are entitled thereto, temperate
damages may be awarded. Such temperate damages, taking into account the current jurisprudence
fixing the indemnity for death at P50,000.00, should be one-half thereof, or P25,000.00. This makes
temperate damages equal to the award of exemplary damages, which is likewise fixed at P25,000.00
in cases where its award is justified. ECaTAI
WHEREFORE, the assailed judgment in Criminal Case No. 95-01052-D is AFFIRMED with
MODIFICATION. Accused-appellant Federico Abrazaldo is declared guilty beyond reasonable doubt
of homicide defined and penalized under Article 249 of the Revised Penal Code and is sentenced to
suffer an indeterminate penalty of six (6) years and 1 day of prision mayor, as minimum, to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal in its medium period, as
maximum. He is ordered to pay the heirs of the late Delfin Guban P50,000.00 as indemnity and
P25,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
||| (People v. Abrazaldo, G.R. No. 124392, [February 7, 2003], 445 PHIL 109-127)

SECOND DIVISION
[G.R. No. 79811. March 19, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PIO CANTUBA &
PEDRITO LALAGUNA, defendants-appellants.

The Office of the Solicitor General for plaintiff-appellee.

Ernesto P. Pangalangan for defendants-appellants.

SYLLABUS
1. CRIMINAL LAW; CONSPIRACY; DECREE OF ACTUAL PARTICIPATION IN THE
COMMISSION OF THE CRIME, IMMATERIAL. It is the contention of accused-appellant that
even if he (Cantuba) did approach the victim with a gun in his hand, it was never established that the
fatal shot came from his gun. The contention is untenable. First, the factual points marshalled by the
appellants do not engender reasonable doubt as to his (Cantuba) culpability. Second, even assuming
that he (Cantuba) never fired his gun, he would still be principally liable as a co-conspirator in the
killing of Atty. Celera under the principle that the act of a conspirator is the act of all co-conspirators.
The degree of actual participation in the commission of the crime is immaterial in a conspiracy.
2. ID.; ID.; ESTABLISHED IN CASE AT BAR. Accused-appellant further calls the attention of
this court to the fact that Pat. Torrecampo did not mention him (Pedrito Lalaguna) as among his
companions when the former directed the killing. This court finds this fact not exculpatory. It does
not in any way contradict the testimonies of Margie Rotor and Romulo Tama that appellant Lalaguna
was at the scene of the crime and tried to run down the victim. Appellant Lalaguna's identity and
participation had been sufficiently established, and his motives become inconsequential (People v.
Soriano, 134 SCRA 542). The trial court correctly convicted appellant Lalaguna as a co-conspirator
as the circumstances of his participation indubitably showed unity of purpose and unity in the
execution of the unlawful acts as can be gleaned from the fact that, Lalaguna knew of the plot to
assassinate Atty. Celera as he too had been ordered to scout for a man who could do the job (TSN,
Sept. 3, 1985, pp. 355-356). He also knew exactly the place where the killing was to take place and
also the date and approximate time of the assault. At the very least, therefore, he had to know about
the Torrecampo plot and decided to join its execution. From the legal viewpoint, conspiracy exists if,
at the time of the commission of the offense, the accused had the same purpose and were united in its
execution. (People v. Caday, 28 SCRA 388; People v. Sy, 113 SCRA 207).
3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; NOT AFFECTED BY MINOR
INCONSISTENCIES. With regard to the alleged conflicting testimonies of the two principal

14

witnesses, Margie Rotor and Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court is
convinced that the testimony of Margie Rotor is more credible than that of Torrecampo because when
witness Margie Rotor heard the gunfire, it was after she saw Pio Cantuba holding a gun while
walking towards them. This court finds that the only competent persons to identify the person who
fired the gun are the witnesses present at the scene of the crime. Witness Margie Rotor who was
standing right beside the victim is more believable than Torrecampo who was standing across the
street. When contradictory statements refer only to minor details, this does not destroy their
credibility. Their inconsistency in minor details is proof that they were not rehearsed.
4. ID.; ID.; ID.; FINDINGS OF TRIAL COURT THEREOF; NOT TO BE DISTURBED ON
APPEAL; EXCEPTION; CASE AT BAR. With respect to the sworn statement of Ricardo Baco
claiming that it was Totong Labuyo who shot Atty. Celera remain hearsay evidence and, therefore,
inadmissible since Baco was never presented to allow the prosecution to cross-examine him.
Moreover, it was physically impossible for Baco to see who actually fired the gun because Baco went
the opposite direction and encircled Rotor and the victim from behind. His eyes were fixed on the
victim and not on the gunwielder who was at a distance from the victim. It is a well settled rule that
when the main thrust of the appeal is that of the credibility of the witnesses for the prosecution is
assailed, and appellant failed to demonstrate why this court should depart from the cardinal principle
that the findings of the trial court on the matter of credibility should not be disturbed on appeal due to
its superior advantage in observing the conduct and demeanor of the witnesses while testifying unless
some fact or circumstance may have been overlooked that may affect the result of the case.
5. ID.; ID.; ID.; STRENGTHENED BY SLIGHT VARIATION IN THE TESTIMONY OF THE
TWO WITNESSES; CASE AT BAR. We do not agree with the appellant's claim that his
participation in Atty. Celera's murder is tenuous because the records show otherwise. Both
prosecution witnesses Margie Rotor and Romulo Tama testify to one motorbike or 'tricycle' that was
speeding at precisely the same time, i.e., immediately after Atty. Celera had fallen to the ground as a
result of the gunshot and stab wounds. Accused-appellant Lalaguna points out that Margie Rotor did
not testify against him. This statement is misleading. Margie Rotor testified against the rider of the
speeding 'tricycle' as a participant in the ambush because he was bent on running over the fallen Atty.
Celera. The only element missing in her testimony is the identity of the rider because of the glare of
the vehicle's lights. This, however, was supplied by Romulo Tama who recognized the rider to be
Pedrito Lalaguna, whom he had known even before the incident. Their testimonies as to the
motorbike aspect of the incident corroborate each other. They both distinctly remember the noticeable
speed of the vehicle and that it happened after Atty. Celera had fallen to the ground. By reason of
their relative vantage points, this court finds each witness naturally recalling details which the other
would not have noticed. This is indicative of credible and unadulterated testimony. Slight variations
in the testimony of two witnesses strengthen their credibility (People v. Villamil, 135 SCRA 610).
6. ID.; ID.; ALIBI; CANNOT PREVAIL WHERE IT WAS NOT SHOWN THAT IT WAS
IMPOSSIBLE FOR THE ACCUSED TO HAVE BEEN AT THE SCENE OF THE CRIME. The
state has satisfactorily discharged its burden of proving the guilt of the appellants beyond reasonable
doubt. Appellants' discussion of their third assignment of error seems to imply that the decision was
premised on the weakness of the arguments and evidence for the defense. However, an unprejudiced
reading of the decision and the points already discussed will readily show otherwise. Be it noted that
the questioned judgment tried very well to rebut the defense of alibi of Pio Cantuba and Pedrito
Lalaguna. Appellants' defense of alibi is jurisprudentially weak (People v. Onquillano, 149 SCRA
442; People v. Acelajado, 148 SCRA 142). As they were not able to demonstrate by convincing

evidence that it was physically impossible for them to have been at the scene of the crime at the time
it was committed. Moreover, the defense of alibi is generally accepted with caution, because under
certain circumstances might exonerate the accused on the ground of impossibility of participation, or
at the very least, raise a reasonable doubt. In the case at bar, both appellants claimed that on the night
and time of the incident they were not at the vicinity of the Sunrise Disco Pub where the alleged
crime was committed, as they were then in the house of Asst. Provincial Treasurer Manlapaz playing
'pusoy'. But considering the admitted fact that the distance between the house of Asst. Provincial
Treasurer Manlapaz where the accused claimed to be, is only 300 meters away from the Sunrise
Disco Pub, where the crime was perpetrated, there is no physical impossibility for both accused to be
at the scene of the crime. Accordingly, such defense merits no serious consideration. Moreover, both
accused were positively identified by prosecution witnesses Margie Rotor, Rodolfo Torrecampo and
Romulo Tama. Accused Pio Cantuba, as the person who fired the gun and Pedrito Lalaguna, as the
rider of the speeding motorbike or 'tricycle' who was bent on running over the fallen body of Atty.
Celera.
DECISION
PARAS, J p:
The accused-appellants Pio Cantuba and Pedrito Lalaguna together with co-accused Gualberto
Versales (alias Berting), Satur Gerbuela, Ricardo Baco, Rogelio Penales (alias Pugo), Romeo Totong
Labuyo and Mayor Moises Espinosa were charged with the crime of Murder under Art. 248 of the
Revised Penal Code in an amended information which reads as follows:
"That on or about December 23, 1981 in the municipality of Masbate, province
of Masbate, Philippines, and within the jurisdiction of the Honorable Court, the
said accused, confederating with each other, did then and there willfully,
unlawfully and feloniously, with evident premeditation and with night-time as
a means to better facilitate the commission of the crime, attack, assault and use
personal violence upon one ATTY. ADOLFO CELERA, by then and there
shooting him at several parts of his body, thereby inflicting upon the latter,
mortal wounds which are the direct and immediate cause of his death
thereafter. cdphil
"Contrary to law." (p. 124, Rollo).
The accused Cantuba, Lalaguna, Versales, Gerbuela, Baco and Mayor Moises Espinosa pleaded not
guilty upon arraignment. Penales and Labuyo remained at large and were not arraigned.
The defense, in a motion for an order requiring the Prosecuting Fiscal or Fiscals in this case to
conduct another investigation and thereafter to include in the Amended Information all persons, who
appear responsible therefor, moved for the inclusion of one Pat. Torrecampo, a confessed participant
in the alleged crime, as one of the accused. Although the motion was granted by the court, the issue
was eventually rendered moot and academic when the trial was completed without the Prosecuting
Fiscals having complied with the court's order.

On April 27, 1987, the trial court rendered a decision, the dispositive portion of which states:

15

"WHEREFORE, premises considered, we find accused PIO CANTUBA and

PEDRITO LALAGUNA, guilty beyond reasonable doubt of the crime of
Murder, and hereby sentences each of them to suffer the penalty of
RECLUSION PERPETUA, to indemnify jointly and solidarily the heirs of Atty.
Celera in the sum of One Hundred Thousand (P100,000.00) Pesos, and to pay
the costs. prcd
"Accused GUALBERTO VERSALES, SATUR GERBUELA and MAYOR
MOISES R. ESPINOSA, are hereby ACQUITTED, for insufficiency of
evidence to establish guilt beyond reasonable doubt, with the consequent
cancellation of their bailbonds.
"The case against accused RICARDO BACO who is already dead is
DISMISSED.
"The case against ROMEO alias TOTONG LABUYO and ROGELIO
PENALES alias PUGO who, up to the present are at large, is hereby placed in
the ARCHIVES.
"SO ORDERED." (pp. 66-67, Rollo).
The trial court gave credence to the testimonies of the prosecution witnesses Margie Rotor, Romulo
Tama and Pat. Rodolfo Torrecampo and on the basis of their testimonies the facts as hereunder
narrated are reconstructed by the Solicitor General, as follows:
"On December 21, 1981, Patrolman Rodolfo Torrecampo, then under
suspension but working as the bodyguard of Mayor Moises Espinosa, went to
Dagusungan, Milagros, Masbate to fetch one Romeo 'Totong' Labuyo, the
'encargado' of Mayor Espinosa's ranch, and to Pulang-Bato, Masbate, Masbate
to fetch Pio Cantuba, the mayor's 'sidekick' in his cockpit (TSN, Sept. 3, 1985,
pp. 335, 337; TSN, September 2, 1985, p. 297).
"On December 23, 1981, all three went to the provincial jail to secure the
release of Ricardo Baco, a detention prisoner (TSN, Sept. 3, 1985, pp. 338,
342). Together with Baco, they proceeded to the house of Saturnino Gerbuela,
a provincial guard, but the latter was not at home (Id., p. 343). They left Baco
behind to wait for Gerbuela with instructions that they both should proceed to
Sunrise Disco Pub at 6:00 p.m. (Id.). Torrecampo, Labuyo and Cantuba went to
the Bel-Air Theater to kill time staying there for about two hours before
proceeding to the Sunrise Disco Pub (Id., pp. 344, TSN, November 7, 1985, p.
446). Ricardo Baco was already at the Sunrise Disco Pub when they arrived
(TSN, September 3, 1985, p. 345).
"Torrecampo told the group to wait outside while he checked inside the pub to
see if Atty. Adolfo Celera was inside (Id., p. 345). As the pub was dark, he
could not confirm Atty. Celera's presence (Id., p. 346). Coming out of the pub,
Torrecampo explained to Cantuba, Labuyo and Baco how they would kill Atty.
Celera. He handed to Labuyo a .45 cal. pistol and to Baco a knife (machete)
(Id., pp. 346-347). Torrecampo described the features of the victim to Baco
(Id., p. 346) and instructed Cantuba, who knew Atty. Celera, to signal Baco

and Labuyo as soon as he sees their victim approaching (TSN, November

7,1985, p. 446). LLphil
"Atty. Adolfo Celera was a practicing lawyer and had run for public office (Id.,
p. 450). He had been the lawyer for the complainant in a rape case brought
against Mayor Espinosa, formerly Governor of Masbate (TSN, January 23,
1985, p. 75, TSN, October 21, 1987, pp. 34), who at the time of Atty. Celera's
death had filed a case against the latter for moral damages (TSN, September 2,
1985, p. 294). After the trial of the damage suit began, Atty. Celera confided to
his wife that Mayor Espinosa had warned him that should he lose the suit a
'miracle' would happen (TSN, October 21, 1985, pp. 4, 5). Subsequently, Atty.
Jolly Fernandez (later Assemblyman), who collaborated with Atty. Celera in
the rape case against Mayor Espinosa, was 'bombed' as he left the court on
December 2, 1981 (Id., pp. 6, 7).
"On the evening of December 23, 1981, Atty. Celera, together with Margie
Rotor and Ave Refil, attended the Christmas party of the Bureau of Land
Transportation (BLT). They left the place after staying for one hour and took a
tricycle to Pil-Tel, a local long distance telephone company. Atty. Celera went
inside Pil-Tel while his companions waited outside. Margie Rotor noticed that
there were also three other people standing outside Pil-Tel (Id., p. 59) one of
them she recognized as Pio Cantuba a long time acquaintance (Id., p. 60). After
5 minutes, Atty. Celera came out of Pil-Tel and then headed for the Sunrise
Disco Pub (TSN, January 23, 1985, pp. 56, 58, 61) just across the street from
Pil-Tel. (Id., p. 58, 59; TSN, June 10, 1985, p. 135). Ave Refil was called by
somebody and Atty. Celera and Margie Rotor went inside the Pub and ordered
a bottle of White Castle and before they had consumed its contents Atty. Celera
told her that he will go home already (Id., p. 62).
Margie Rotor accompanied Atty. Celera to the gate of the pub where they stood
facing the street waiting for a tricycle, with Margie Rotor standing at the right
side of Atty. Celera (TSN, January 23, 1985, p. 63). The gate was lighted by a
long flourescent lamp. Near them, by the side of the Carandang Optical,
Margie Rotor noticed a man standing by a blue Yamaha Motorbike with a
butterfly sticker (Id., p. 71). She also noticed that Pio Cantuba and his two
companions were still standing near the wall of Pil-Tel (Id., p. 63; TSN,
January 24, 1985, p. 133). Then the three dispersed. Pio Cantuba walked
towards UCPB which was to her left and then Cantuba returned and headed
towards where she and Atty. Celera were standing (Id., p. 64). One of
Cantuba's companions who was wearing a white t-shirt and maong pants,
whom Margie Rotor recognized in the courtroom and turned out to be Ricardo
Baco, circled behind them (Id., p. 64). LLphil
"As Cantuba slowly approached them, Margie Rotor saw that Cantuba was
holding a gun (Id., p. 65). Then she heard a gunfire (TSN, September 3, 1985,
p. 348) and Atty. Celera staggered. Then Ricardo Baco rushed from behind and
stabbed Atty. Celera twice on the left chest (Id., p. 349; TSN, January 23, 1985,
p. 66). Atty. Celera fell to the ground, groaning (Id., p. 67).

16

"As Cantuba and Baco were fleeing, Margie Rotor saw a 'tricycle' speeding
towards the fallen victim (Id., p. 68) but Margie Rotor was able to pull his
body out of its path (Id., p. 69). The glaring lights of the vehicle made it
difficult for her to make out and identify the rider (Id., p. 68). However, 17
year old Romulo Tama, a bystander who had also seen the blue Yamaha
motorbike with a butterfly sticker near Carandang Optical, saw the rider,
whom he recognized as Pedrito Lalaguna, start the engine and speed away
right after Atty. Celera fell to the ground mortally wounded (TSN, June 10,
1985, pp. 131, 132).
"Margie Rotor, Patrolman Igloso and Nino, a waiter at Sunrise Disco Pub, took
Atty. Celera to the Masbate Provincial Hospital in a tricycle (TSN, June 23,
1985, pp. 69, 70). Atty. Celera sustained a gunshot in the left lumbar area, or at
the left back just above the waistline, with no exit wound, and two stab wounds
on the left side of his body, one over the 'epig. area' and the other between the
6th and 7th ribs between sternal and mid-clavicular lines or just below the
nipple (TSN, July 30, 1985, p. 259; September 2, 1985, pp. 291-292). Adolfo
Juancho Celera, Jr., eldest son of the deceased, also rushed to the hospital and
saw the doctor remove a .45 cal. slug from his father's right torso (TSN
September 2, 1985, p. 288). Atty. Celera died in the hospital. cdll
Technical Sgt. Randolf Arizala, together with Col. Cesar Veloso immediately
investigated the reported shooting of Atty. Celera (TSN, November 26, 1984,
p. 13). Arizala saw the slug that was extracted from the deceased (Id., pp. 14,
15). As a result of an on-the-spot investigation, Sgt. Arizala traced the blue
Yamaha motorcycle to Ernesto Lampago and found the vehicle at the latter's
address in Masbate, Masbate (Id., pp. 16, 18). While the rear tire was deflated,
Sgt. Arizala observed that the engine was still warm (Id., p. 17). Lampago
explained that the motorcycle was owned by Godofredo Versales whose wife
mortgaged the same to Lampago (Id., p. 17). Sgt. Arizala impounded the
vehicle (Id., p. 18).
"That same evening, at around nine o'clock in the evening, Romeo Gerona,
went out of his sister's house to buy cigarettes (TSN, July 30, 1985, pp. 266,
267). On the way, a tricycle with four persons on board passed him and then
stopped in front of the house of Mayor Espinosa (Id., p. 267). He recognized
two of them Pugo Penales and Pio Cantuba (Id., pp. 267, 268)." (pp. 4-9,
Appellee's Brief; p. 124, Rollo).
Now Appellants Pio Cantuba and Pedrito Lalaguna filed the instant appeal assigning the following
errors:
I
The Lower Court erred in finding that accused, Pio Cantuba, fired the fatal
shot that snuffed the life of deceased Adolfo Celera, despite overwhelming
evidence to the contrary.

The Lower Court erred in convicting accused, Pedrito Lalaguna, despite the
fact that the only evidence against him considered solely of having been seen
driving a motorbike away from the scene of the crime.
III
The Lower Court erred in disregarding the constitutional right of the accused
to be presumed innocent until proven guilty beyond reasonable doubt. (p. 3,
Appellee's Brief).
It is the contention of accused-appellant that even if he (Cantuba) did approach the victim with a gun
in his hand, it was never established that the fatal shot came from his gun.
The contention is untenable. First, the factual points marshalled by the appellants do not engender
reasonable doubt as to his (Cantuba) culpability. Second, even assuming that he (Cantuba) never fired
his gun, he would still be principally liable as a co-conspirator in the killing of Atty. Celera under the
principle that the act of a conspirator is the act of all co-conspirators. The degree of actual
participation in the commission of the crime is immaterial in a conspiracy. cdll
With regard to the alleged conflicting testimonies of the two principal witnesses, Margie Rotor and
Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court is convinced that the testimony
of Margie Rotor is more credible than that of Torrecampo because when witness Margie Rotor heard
the gunfire, it was after she saw Pio Cantuba holding a gun while walking towards them. This court
finds that the only competent persons to identify the person who fired the gun are the witnesses
present at the scene of the crime. Witness Margie Rotor who was standing right beside the victim is
more believable than Torrecampo who was standing across the street. When contradictory statements
refer only to minor details, this does not destroy their credibility. Their inconsistency in minor details
is proof that they were not rehearsed.

With respect to the sworn statement of Ricardo Baco claiming that it was Totong Labuyo who shot
Atty. Celera remain hearsay evidence and, therefore, inadmissible since Baco was never presented to
allow the prosecution to cross-examine him. Moreover, it was physically impossible for Baco to see
who actually fired the gun because Baco went the opposite direction and encircled Rotor and the
victim from behind. His eyes were fixed on the victim and not on the gunwielder who was at a
distance from the victim.
It is a well settled rule that when the main thrust of the appeal is that of the credibility of the
witnesses for the prosecution is assailed, and appellant failed to demonstrate why this court should
depart from the cardinal principle that the findings of the trial court on the matter of credibility
should not be disturbed on appeal due to its superior advantage in observing the conduct and
demeanor of the witnesses while testifying unless some fact or circumstance may have been
overlooked that may affect the result of the case.
Anent the second assignment of error, it is the contention of the accused-appellant Pedrito Lalaguna
that the lower court erred in convicting him despite the fact that the only evidence against him
consisted solely of having been seen driving a motorbike away from the scene of the crime.

II

17

We do not agree with the appellant's claim that his participation in Atty. Celera's murder is tenuous
because the records show otherwise. Both prosecution witnesses Margie Rotor and Romulo Tama
testify to one motorbike or 'tricycle' that was speeding at precisely the same time, i.e., immediately
after Atty. Celera had fallen to the ground as a result of the gunshot and stab wounds. LexLib
Accused-appellant Lalaguna points out that Margie Rotor did not testify against him. This statement
is misleading. Margie Rotor testified against the rider of the speeding 'tricycle' as a participant in the
ambush because he was bent on running over the fallen Atty. Celera. The only element missing in her
testimony is the identity of the rider because of the glare of the vehicle's lights. This, however, was
supplied by Romulo Tama who recognized the rider to be Pedrito Lalaguna, whom he had known
even before the incident. Their testimonies as to the motorbike aspect of the incident corroborate each
other. They both distinctly remember the noticeable speed of the vehicle and that it happened after
Atty. Celera had fallen to the ground. By reason of their relative vantage points, this court finds each
witness naturally recalling details which the other would not have noticed. This is indicative of
credible and unadulterated testimony. Slight variations in the testimony of two witnesses strengthen
their credibility (People v. Villamil, 135 SCRA 610).
Accused-appellant further calls the attention of this court to the fact that Pat. Torrecampo did not
mention him (Pedrito Lalaguna) as among his companions when the former directed the killing. This
court finds this fact not exculpatory.
It does not in any way contradict the testimonies of Margie Rotor and Romulo Tama that appellant
Lalaguna was at the scene of the crime and tried to run down the victim. Appellant Lalaguna's
identity and participation had been sufficiently established, and his motives become inconsequential
(People v. Soriano, 134 SCRA 542).
The trial court correctly convicted appellant Lalaguna as a co-conspirator as the circumstances of his
participation indubitably showed unity of purpose and unity in the execution of the unlawful acts as
can be gleaned from the fact that, Lalaguna knew of the plot to assassinate Atty. Celera as he too had
been ordered to scout for a man who could do the job (TSN, Sept. 3, 1985, pp. 355-356). He also
knew exactly the place where the killing was to take place and also the date and approximate time of
the assault. At the very least, therefore, he had to know about the Torrecampo plot and decided to join
its execution. From the legal viewpoint, conspiracy exists if, at the time of the commission of the
offense, the accused had the same purpose and were united in its execution. (People v. Caday, 28
SCRA 388; People v. Sy, 113 SCRA 207). cdphil
Appellant Lalaguna insists that the act of driving a motorbike is an equivocal act. This would be
correct only if the testimony of Romulo Tama were considered in isolation from the testimony of
Margie Rotor, Pat. Torrecampo and Sgt. Rodolfo Arizala which clearly indicate that Lalaguna drove
the vehicle to run down the victim and that he shared in the criminal intent to do away with Atty.
Celera. Therefore, the criminal culpability of appellant Pedrito Lalaguna had been clearly established.
Relative to the last assigned error, the state has satisfactorily discharged its burden of proving the
guilt of the appellants beyond reasonable doubt. Appellants' discussion of their third assignment of
error seems to imply that the decision was premised on the weakness of the arguments and evidence
for the defense. However, an unprejudiced reading of the decision and the points already discussed
will readily show otherwise.

Be it noted that the questioned judgment tried very well to rebut the defense of alibi of Pio Cantuba
and Pedrito Lalaguna. Appellants' defense of alibi is jurisprudentially weak (People v. Onquillano,
149 SCRA 442; People v. Acelajado, 148 SCRA 142). As they were not able to demonstrate by
convincing evidence that it was physically impossible for them to have been at the scene of the crime
at the time it was committed. Moreover, the defense of alibi is generally accepted with caution,
because under certain circumstances might exonerate the accused on the ground of impossibility of
participation, or at the very least, raise a reasonable doubt. In the case at bar, both appellants claimed
that on the night and time of the incident they were not at the vicinity of the Sunrise Disco Pub where
the alleged crime was committed, as they were then in the house of Asst. Provincial Treasurer
Manlapaz playing 'pusoy'. But considering the admitted fact that the distance between the house of
Asst. Provincial Treasurer Manlapaz where the accused claimed to be, is only 300 meters away from
the Sunrise Disco Pub, where the crime was perpetrated, there is no physical impossibility for both
accused to be at the scene of the crime. Accordingly, such defense merits no serious consideration.
Moreover, both accused were positively identified by prosecution witnesses Margie Rotor, Rodolfo
Torrecampo and Romulo Tama. Accused Pio Cantuba, as the person who fired the gun and Pedrito
Lalaguna, as the rider of the speeding motorbike or 'tricycle' who was bent on running over the fallen
body of Atty. Celera. llcd
WHEREFORE, the decision of the trial court is hereby AFFIRMED, with costs against the
appellants.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

SECOND DIVISION
[G.R. No. L-28547. February 22, 1974.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIAS
JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN
GOBRICETA, accused. ELIAS JARANILLA RICARDO SUYO, and
FRANCO BRILLANTES, defendants-appellants.

Solicitor General Felix V . Makasiar, Assistant Solicitor General Felicisimo R. Rosete and Solicitor
Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

18

DECISION

AQUINO, J p:
This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision
of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced
each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos
to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of
five fighting cocks (Criminal Case No. 11082).
The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9,
1966, Heman Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford
pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde
Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They
hailed Gorriceta who stopped the truck. Jaranilla requested Gorriceta to bring them to Mandurriao, a
district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his
way home.
Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get
something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck which
Gorriceta drove to Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters
from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla
instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval
of about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They
ran to the truck.
Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the
truck to Jaro (another district of the city) on the same route that they had taken in going to
Mandurriao.
It is important to note the positions of Gorriceta and his three companions on the front seat of the
truck. Gorriceta, as the driver, was on the extreme left. Next to him on his right was Suyo. Next to
Suyo was Brillantes. On the extreme right was Jaranilla.
While the truck was traversing the detour road near the Mandurriao airport, then under construction,
Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running
towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and
was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the
policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the occupants
of the truck to go down. They did not heed the injunction of the policeman.
Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot
Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck
and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards
Jabatan.

Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside
the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to his
room. After a while, he heard policemen shouting his name and asking him to come down. Instead of
doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day
that he decided to come down. His uncle had counselled him to surrender to the police. The
policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator.
Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in
Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to the
housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence, he
saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red
Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly
thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at
Mandurriao. He reported to Patrol men Jabatan and Castro what he had just witnessed. The two
policemen requested him to take them in his car to the place where he saw the three suspiciouslooking men. Upon arrival thereat, the men and the truck were not there anymore.
Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road
leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their
objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao.
At that moment he heard gunshots. He stopped and again turned his car in the direction where the
shots had emanated. A few moments later, Patrolman Castro came into view. He was running. He
asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and
Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that
Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department,
conducted an autopsy on the remains of Patrolman Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla,
directed diagonally downward to the right, perforating the left upper lobe of
the lungs through and through, hitting the left pulmonary artery and was
recovered at the right thoracic cavity; both thoracic cavity was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning
of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A
and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found
that six of his fighting cocks were missing. Each coop contained six cocks. The coop was made of
bamboo and wood with nipa roofing. Each coop had a door which was locked by means of nails. The
coops were located at the side of his house, about two meters therefrom.
Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came
to his house together with the police photographer who took pictures of the chicken coops. The six
roosters were valued at one hundred pesos each. Two days later, he was summoned to the police
station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily
identified it as one of the six roosters which was stolen from his chicken coop (Exh. B).

19

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating
circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public
authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was
dismissed as to him.
On February 2, 1967, after the prosecution had rested its case and before the defense had commenced
the presentation of its evidence, Jaranilla escaped from the provincial jail. The record does not show
that he has been apprehended.
The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19,
1967 when it was read to them in court. They signed at the bottom of the last page of the decision.
There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail
(See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla.
Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed. His
appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes
will be considered.
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the
taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on
the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.
In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one
who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was allegedly
drunk. Through their counsel de oficio, they further contend that the taking of the roosters was theft
and, alternatively, that, if It was robbery, the crime could not be robbery with homicide because the
robbery was already consummated when Jabatan was killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who
shot the policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's
declaration that he was driving the truck at the time that Jaranilla shot Jabatan.
The improbability of appellant's theory is manifest. The truck belonged to Gorriceta's sister. He was
responsible for its preservation. He had the obligation to return it to his sister in the same condition
when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he
allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a
truck.

The theory of the defense may be viewed from another angle. If, according to the appellants,
Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk, then that circumstance
would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly, intoxicated,
Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could
not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot
accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must
have been a sober person like Jaranilla.

Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was
Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory
that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be implausible.
Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters
from their coop or cages in the yard of Baylon's house violence against or intimidation of persons
was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery
in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was
not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the
Revised Penal Code.
Having shown the inapplicability of articles 294 and 299, the next inquiry is whether the taking of the
six roosters is covered by article 302 of the Revised Penal Code which reads:
"ART. 302. Robbery in an uninhabited place or in private building. Any
robbery committed in an uninhabited place or in a building other than those
mentioned in the first Paragraph of article 299, if the value of the property
exceeds 250 pesos, shall be punished by prision correccional in its medium
and maximum periods provided that any of the following circumstances is
present:
1. If the entrance has been effected through any opening not intended for
entrance or egress.
2. If any wall, roof, floor or outside door or window has been broken.
3. If the entrance has been effected through the use of false keys, picklocks or
other similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle
has been broken.
5. If any closed or sealed receptacle, as mentioned in the preceding paragraph,
has been removed, even if the same be broken open elsewhere.
xxx xxx xxx"
In this connection, it is relevant to note that there is an inaccuracy in the English translation of article
302. The controlling Spanish original reads:
"ART. 302. Robo en lugar no habitado o edificio particular. El roho
cometido en un lugar no habitado o en un edificio que no sea de los
comprendidos en el parrafo primero del articulo 299, . . ."(Tomo 26, Leyes
Publicas 479).
The term "lugar no habitado" is erroneously translated as "uninhabited place", a term which may
be confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised
Penal Code, which is the translation of despoblado and which is different from the term lugar

20

no habitado in article 302. The term lugar no habitado is the antonym of casa habitada
(inhabited house) in article 299.
One essential requisite of robber with force upon things under articles 299 and 302 is that the
malefactor should enter the building or dependency where the object to be taken is found. Articles
299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar
no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force
upon things. (See Albert, Revised Penal Code. 1932 edition, page 688).
Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue,
Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not
enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567,
per Montemayor, J., who later became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken cannot be considered a
building within the meaning of article 302. Not being a building, it cannot be said that the accused
entered the same in order to commit the robbery by means of any of the five circumstances
enumerated in article 302.
The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing
any structure not mentioned in article 299 (meaning not an "inhabited house or public building or
edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal
property. As thus construed, a freight car used for the shipment of sugar was considered a private
building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a
freight car, was held to constitute breaking by force within the meaning of article 512, now article
302. (U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a
railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car, does
not commit robbery He is guilty of theft because a railroad car is neither a house nor a building
within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code.
Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a
pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft
and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings.
(Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7,
642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April
25, 1887). **
As may be seen from the photographs (Exhs. A and A-1), Baylon's coop, which is known in the
dialect as tangkal or kulungan, is about five yards long, one yard wide and one yard high. It has
wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average
height like Baylon. It is divided into six compartments or cages. A compartment has an area of less
than one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not
intended that a person should go inside that compartment. The taking was effected by forcibly
opening the cage and putting the hands inside it to get the roosters.
Therefore, the taking of the six roosters from their coop should be characterized as theft and not
robbery. The assumption is that the accused were animated by single criminal impulse. The conduct
of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single
offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same

occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of
Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320;
People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953).
Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the
commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle
so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs.
Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of
recidivism which was alleged in, the information. They admitted their previous convictions for theft
(130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its
minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in
its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal
Code).
Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to
an indeterminate sentence (Sec. 2, Act No. 4103).
With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the
prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing
was homicide because it was made on the spur of the moment. The treacherous mode of attack was
not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs.
Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting.
He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon
an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses
resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs.
Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla,
Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is
shown by the manner in which they perpetrated the theft. They went to the scene of the crime
together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the
getaway truck driven by Gorriceta.
The theft was consummated when the culprits were able to take possession of the roosters. It is not an
indispensable element of theft that the thief carry, more or less far away, the thing taken by him from
its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S. vs. Adiao, 38 Phil.
754).

It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or
frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no evidence
to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were
with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do

21

anything when Jabatan approached the right side of the truck and came in close proximity to Jaranilla
who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn).
Mere presence at the scene of the crime does not necessarily make a person a co-principal thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness
stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an
admission of guilt.
The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on
the occasion when the accused took his chickens under the house. It is distinguishable from the
People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the
Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the
occasion of the robbery. As already noted, theft, not robbery, was committed in this case.
The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493
where the homicide committed by a member of the band was not a part of the common plan to
commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with
homicide. The others were convicted of robbery only.
There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in
the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed.
Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's
death. Their complicity in the homicide committed by Jaranilla has not been established.
WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco
Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of
reasonable doubt.
As coprincipals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced
to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two
(2) months of prision correccional as maximum and (b) ordered to indemnify solidarily the
complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay
one-third of the costs.
As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of
authority, the trial court should render a new judgment consistent with this opinion (See Sec. 19, Art.
IV, Constitution).

I am in full accord with the findings of fact and the legal rationalization and conclusions in the main
opinion very ably written for the Court by Mr. Justice Aquino.
I would like to make the observation, however, that I cannot find any error in the literal translation of
the term "lugar no habitado" used in the controlling Spanish text of Article 302 into "uninhabited
place" appearing in the English version. The correct concept of the said term as used in Article 302 is
indeed different from the "uninhabited place" contemplated in Articles 295 and 300, which means
"despoblado" or open country referring to a "lugar", meaning place, site or space where nobody
lives or is usually found. And, of course, it is also clear to me that what Article 302 refers to as an
"uninhabited place" is really an unoccupied or uninhabited house, the antonym of the "casa habitada"
referred to in Article 299. But I cannot bring myself to the thought that the word "lugar" in Article
302 may literally be translated to anything else than "place, site or space". I simply cannot see in it
the specific connotation of house or building. Maybe it is the wording of the Spanish text that is
somewhat inaccurate, unless it can be shown, which I am afraid cannot be done, that colloquially or
somewhere in the Spanish speaking world, said word means house or building or any structure
wherein personal properties may be deposited, stored or kept.
I would prefer to footnote Article 302 the same way Justice Luis B. Reyes of the Court of Appeals
does, thus:
"The 'uninhabited place' mentioned in Article 302 is a building, because
paragraphs Nos. 1 and 3 speak of 'entrance,' which necessarily refers to a
building." (The Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p. 617.)
In that way, I believe the true and correct meaning of the provision is clarified without attributing any
possible misconstruction to faulty literal translation, which I am convinced does not exist. I reiterate,
the error in translation noted in the main opinion is inevitable for while the literal translation is
indubitably accurate, on the other hand, as a matter of construction, the correct interpretation is
different. Evidently, the Spanish text uses "lugar" for house, building or structure, and, to my mind,
that is not the sense that word is usually understood in Spanish. But I agree that what is contemplated
in Article 302 is not "despoblado" but simply an unoccupied or uninhabited house, building or
structure. In other words, it appears that the correct expression that should be in Article 302 is
"uninhabited house," disregarding, consequently, the inaccurate reference to "lugar" in the Spanish
text and sticking, by way of construction, to the correct concept of the thing really contemplated.
||| (People v. Jaranilla, G.R. No. L-28547, [February 22, 1974], 154 PHIL 516-534)

So ordered.
Zaldivar, Fernando, Antonio and Fernandez, JJ ., concur.

Separate Opinions
BARREDO, J ., concurring:

THIRD DIVISION
[G.R. Nos. 136592-93. November 27, 2003.]
PEOPLE OF THE PHILIPPINES, appellee, vs. MANOLITO PANCHO,
appellant.

I concur.

22

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
Appellant was found guilty by the trial court of rape and attempted rape committed on separate
occasions. In this appeal, appellant assailed the sufficiency of evidence for his conviction.
The Supreme Court affirmed the trial court's decision convicting appellant of the crime of rape. In the
Information, appellant was being charged of statutory rape considering that the victim was then
below twelve years old. The gravamen of the offense of statutory rape is carnal knowledge of a
woman below twelve years old. In statutory rape, force, intimidation or physical evidence of injury is
immaterial. Where the girl is below twelve years of age, violence or intimidation is not required, and
the only subject of inquiry is whether carnal knowledge took place.
The Court likewise ruled that in rape cases, the absence of fresh lacerations does not preclude the
finding of rape, especially when the victim is of tender age. Rape is consummated by the slightest
penile penetration of the labia majora or pudendum of the female organ.
Anent the charge of attempted rape, the Supreme Court held that the prosecution failed to prove that
appellant started to rape the victim and 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. The
Court cannot conclude that he attempted to rape her. Thus, the Court acquitted appellant of the crime
of attempted rape.

SYLLABUS
1. CRIMINAL LAW; STATUTORY RAPE; FORCE, INTIMIDATION OR PHYSICAL EVIDENCE
OF INJURY IS IMMATERIAL. The gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12) years old. In statutory rape, force, intimidation or physical
evidence of injury is immaterial. 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.
2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; IN RAPE CASES,
ACCUSED MAY BE CONVICTED SOLELY ON THE TESTIMONY OF RAPE VICTIM IF HER
TESTIMONY IS CREDIBLE, NATURAL AND CONVINCING; CASE AT BAR. Michelle's
testimony is straightforward, unflawed by significant inconsistency, and unshaken by rigid crossexamination. 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. 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. 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.

3. CRIMINAL LAW; RAPE; NOT NEGATED BY ABSENCE OF HYMENAL RUPTURE OR ANY

INDICATION OF VAGINAL LACERATION OR GENITAL INJURY. [I]n rape cases the absence
of fresh lacerations does not preclude the finding of rape, especially when the victim is of tender age.
Moreover, laceration of the hymen is not an element of the crime of rape. Hymenal rupture or any
indication of vaginal laceration or genital injury is not necessary for the consummation of rape. Its
absence does not negate a finding of forced sexual coitus.
4. ID.; ID.; CONSUMMATED BY THE SLIGHTEST PENILE PENETRATION OF THE LABIA
MAJORA OR PUDENDUM OF THE FEMALE ORGAN. [R]ape is consummated by the
slightest penile penetration of the labia majora or pudendum of the female organ. 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.
5. REMEDIAL LAW; EVIDENCE; DENIAL; CANNOT BE GIVEN GREATER EVIDENTIARY
WEIGHT THAN THE TESTIMONY OF VICTIM WHO TESTIFIED ON AFFIRMATIVE
MATTERS. Appellant's 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. 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 prosecution's evidence is such that it does not prove
guilt beyond reasonable doubt. Verily, mere denial, unsubstantiated by clear and convincing evidence,
is negative self-serving evidence which cannot be given greater evidentiary weight than the testimony
of the complaining witness who testified on affirmative matters.
6. CRIMINAL LAW; RAPE; WHEN ATTEMPTED. 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.
7. ID.; ID.; 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 People vs. Campuhan, 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 accused's organ merely touched but did not penetrate her vagina.
We held that he could not be convicted of statutory rape but only attempted rape.
8. CIVIL LAW; DAMAGES; CIVIL INDEMNITY AND MORAL DAMAGES; AWARDED IN
CASE AT BAR. 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. 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. The anguish and pain
she has endured are evident.

DECISION

23

SANDOVAL-GUTIERREZ, J p:
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.

Sometime in December, 1995 at the family's 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. THAECc
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:

"Contrary to law."

Height: 132.0 cms

For Criminal Case No. 838-M-96 (For Attempted Rape):

Weight: 78.0 cms

"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.

Normally developed, fairly nourished, conscious, coherent, cooperative,

ambulatory subject.

"Contrary to law."

"GENITAL EXAMINATION:

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 Michelle's
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 o'clock in the morning, Michelle, who was then only ten years old,
went home after spending the night at her aunt's 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.

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.

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 Michelle's hymen has remained intact with no sign of extra-genital or genital injuries.

24

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 accused's detention is credited in his favor.

"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. HSaCcE
2. . . .."
A. 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 victim's 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

"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:

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:

1. By using force or intimidation;

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?

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

A: About 6:00 o'clock in the morning I went home, sir.

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

Q: And where is your home located?

"The crime of rape shall be punished by reclusion perpetua.

A: I went home at Look First, Malolos, Bulacan.

xxx xxx xxx

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

25

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?

Q: What motion did he do if you can still remember when Manolito Pancho
was on top of you?

A: He took off all my clothes.

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 clothes you are wearing at that time, Ms. witness?

Q: And what happened to your vagina after he inserted his penis?

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

A: It bled, sir.

Q: What else Manolito Pancho removed?

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

A: My clothes, short and panty, sir.

A: Four (4) minutes, sir.

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

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

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.

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

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

A: He inserted his penis on my vagina.

A: My birth certificate, sir.

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

Q: Do you have with you your birth certificate?

A: Yes, sir.

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

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

A: He was kissing me and touching my body, sir.

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

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

A: April 2, 1984.

A: My both breasts, sir.

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

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

A: Yes, sir.

A: It hurts, sir. ACTESI

xxx xxx xxx." 15

26

Michelle's 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,
Michelle's hymen has remained intact. 18
We are not persuaded.

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

Appellant heavily relies on the virgo intacta theory. 19 He disregards Dr. Daniel's 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

Appellant's 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 prosecution's evidence is such that it does not prove guilt beyond
reasonable doubt. 29 Verily, mere denial, unsubstantiated by clear and convincing evidence, is
negative self-serving 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 xxx xxx
Q: And what happened in that place at Bayugo, Meycauayan, Bulacan?

A: When he was holding my feet I was not able to jump from the window and
that's the time the door opened and then I saw my uncle that is why
the rape was not committed.
xxx xxx 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 accused's 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 complainant's 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.

27

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 court's 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, Corona and Carpio Morales, JJ ., concur.
||| (People v. Pancho, G.R. Nos. 136592-93, [November 27, 2003], 462 PHIL 193-209)

FIRST DIVISION
[G.R. No. 102058. August 26, 1996.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERGIO
PATOTOY and BONIFACIO PATOTOY, accused. BONIFACIO
PATOTOY, accused-appellant.

Solicitor General for plaintiff-appellee.

2. ID.; ID.; WITHOUT UNLAWFUL AGGRESSION SELF-DEFENSE CANNOT EXIST NOR BE

AN EXTENUATING CIRCUMSTANCE. Unlawful aggression presupposes an actual, sudden and
unexpected attack, or an imminent danger thereof, and not merely a threatening or intimidating
attitude. There must exist a real danger to the life or personal safety of the person claiming selfdefense. This element, in the case before us, is sorely wanting. No veritable physical force on the part
of Manuel has been shown that could have really endangered appellant's life. Manuel's alleged act of
drawing "something" from his waist certainly is not the "unlawful aggression" meant in the law that
would justify a fatal strike at the victim with such lightning-speed as appellant has delivered. In fact,
no weapon, supposedly in the person of Manuel, is shown to have been found. Without unlawful
aggression, self-defense cannot exist nor be an extenuating circumstance. HEcaIC
3. ID.; PRESENCE OF THE AGGRAVATING CIRCUMSTANCE OF ABUSE OF SUPERIORITY
QUALIFIED THE KILLING TO MURDER PURSUANT TO ARTICLE 248 (1) OF THE REVISED
PENAL CODE; IMPOSABLE PENALTY SHOULD BE THE MINIMUM PERIOD OF
RECLUSION TEMPORAL MAXIMUM TO DEATH. The aggravating circumstance of abuse of
superiority is present when there is proof of "gross physical disparity" between protagonists or when
force used by the aggressor is out of proportion to the means of defense available to the victim. The
narration of the incident by the prosecution witnesses (supra), detailing the attack on the hapless
victim by appellant and his co-accused, quite aptly would indicate the presence of this aggravating
circumstance. The allegation of abuse of superior strength in the information, qualified the killing to
murder pursuant to Article 248(1) of the Revised Penal Code. Voluntary surrender was correctly
considered in appellant's favor by the trial court. Conformably with Article 64(2) of the Revised
Penal Code, the imposable penalty should be the minimum period of the prescribed penalty of
reclusion temporal maximum to death imposed by Article 248 for the crime of murder. Applying the
Indeterminate Sentence Law, appellant could be held to bear the indeterminate penalty of anywhere
from ten (10) years and one (1) day of prison mayor maximum to seventeen (17) years and four (4)
months of reclusion temporal medium, as the minimum penalty, to anywhere from seventeen (17)
years, four (4) months and one (1) day to twenty (20) years (maximum period of reclusion temporal)
as the minimum penalty.

Norberto F. Manjares, Jr. for accused-appellant.

DECISION
SYLLABUS
1. CRIMINAL LAW; SELF-DEFENSE; IT IS INCUMBENT UPON THE DEFENDANT TO
PROVE THE POSITIVENESS OF SELF-DEFENSE; ELEMENTS THEREOF. We start with the
familiar rule in criminal cases that the burden of proof to show the guilt of an accused is on the
prosecution which must rely on the strength of its own evidence and not on the weakness of the
defense. Where, however, an accused charged with the killing of a person admits having caused that
death but invokes self-defense to escape from criminal liability, it becomes incumbent upon him to
prove by clear and convincing evidence the positiveness of that justifying circumstance. Self-defense
is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof
and, coincidentally, the existence of the following requisites: (a) unlawful aggression; (b) reasonable
necessity of the means employed to repel it, and (c) lack of sufficient provocation on the part of the
person defending himself. All these conditions must concur.

VITUG, J p:
Appellant Bonifacio Patotoy sets upon the decision 1 of the Regional Trial Court of Masbate, Branch
44, in Criminal Case No. 6015 convicting him of murder for the killing of Manuel Verano.
Bonifacio Patotoy was charged with his father, Sergio Patotoy, in an information that
read:
"That on or about February 7, 1990 in the afternoon thereof, at Barangay
Sawang, Municipality of Uson, Province of Masbate, Philippines, and within
the jurisdiction of this Court, the said accused confederating together and
helping one another, with intent to kill, evident premeditation, treachery and

28

superiority of strength, did then and there, willfully, unlawfully and feloniously
attack, assault and stab with a knife one Manuel Verano, hitting the latter on
the different parts of the body, thereby inflicting wounds which directly caused
his instantaneous death.
"CONTRARY TO LAW." 2
The accused pleaded not guilty to the charge. His father was never apprehended and remained at
large.
The Solicitor General sums up the evidence submitted by the prosecution; viz:
"On February 7, 1990, at about 4:30 p.m., the residents of Barangay Sawang,
Uson, Masbate were celebrating the wedding of a certain Ergie Garganta to a
Chinese. Dancing and merrymaking attended the wedding celebration which
was held at the barangay plaza (tsn., B. Garganta, Aug. 8, 1990, p. 2; tsn., E.
Conejos, Aug. 9, 1990, p. 12).
"While the dancing was in progress, victim Manuel Verano succeeded in
getting Sergio Patotoy's wife as dancing partner. This apparently irked coaccused for after the dance, he approached said victim and elbowed the latter
on the stomach. The victim asked why he was elbowed. Instead of answering,
co-accused boxed him. Thereafter, a fistfight ensued. The people pacified them
and advised them to go home. While the victim went home, co-accused went
to his house five meters away to get a bolo then returned to the plaza (tsn., B.
Garganta, Aug. 8, 1990, pp. 4-5; tsn., E. Conejos, Aug. 9, 1990, pp. 13-14).
"At the time of the boxing incident, appellant was in the house of Ranilo
Carmen. A certain Bugoy Monares arrived and informed the former that coaccused, his father, was involved in a fistfight at the plaza. Thereafter,
appellant left the said house and went to the plaza to ask his father about the
incident (tsn., B. Patotoy, Feb. 26, 1991, pp. 3-4; tsn., R. Carmen, Apr. 2, 1991,
pp. 1-3).
"When appellant arrived at the plaza, he immediately approached co-accused
and asked him what happened. Co-accused told him that he was mauled by the
victim. Thereafter, he encouraged appellant, his son, to go and kill the victim.
This prompted appellant to pull out a 'batangas' knife and comment that the
same was sufficient to kill a person. Afterwards, he ran towards the house of
the victim one hundred meters away from the plaza. Co-accused followed him
(Exhs. 'E', 'E-1', 'E-2'; tsn., B. Garganta, Aug. 8, 1990, pp. 6-7; tsn., E. Conejos,
Aug. 9, 1990, pp. 15-18).
"When appellant reached the victim's house, the victim and his wife were
about to climb the stairs leading to their house. Suddenly, appellant, with the
knife in hand, rushed to where the victim was and said: 'What did you do to my
father?' As the victim turned left to face appellant, the latter suddenly stabbed
the former with an upward thrust on the left breast. After the victim was fatally
stabbed, he staggered towards the fence, with blood oozing from his mouth,

nose and chest (tsn., M. Saspa, Aug. 8, 1990, pp. 10, 55-56, 60; tsn., E.
Conejos, Aug. 9, 1990, pp. 20-22; tsn., F. Verano, Jan. 23, 1991, pp. 3-4).
"The victim's wife and daughter tried to stop appellant by grappling with him
for the possession of the knife. However as they were preventing appellant
from further hurting the victim, appellant's co-accused who was following him
likewise stabbed the dying victim, at the back this time. After the second
stabbing, co-accused told his son: 'tama na ina, patay na ina'. As the two
walked away from the place, co-accused said: 'Appear. That is what I want to
(sic) my son. He knows how to kill.' (tsn., B. Garganta, Aug. 8, 1990, p. 7; tsn.,
F. Verano, Jan. 23, 1991, pp. 3-5; tsn., E. Conejos, Aug. 9, 1990, p. 22).
"At around 5:30 p.m., appellant surrendered to the Barangay Captain of
Marcella, Uson, Masbate (tsn., E. Monares, Apr. 2, 1991, p. 6)." 3
The medical report of Dr. Artemio Capellan, the municipal health officer who conducted an autopsy,
revealed that Manuel Verano had sustained the following injuries:
"1. Stab wound affecting the left lateral portion of the chest just above the
mammary gland, hit by a sharped (sic) pointed instrument. Major
organs and blood vessels were affected.
"2. Stab wound affecting the left lumbar area of the back, hit by a sharped (sic)
pointed instrument. Major organs and blood vessels were affected." 4
Appellant admitted having killed Manuel; he denied, however, that his father was with him at the
time. He instead gave the following account:
Appellant was in the house of his friend, Ranilo Carmen, when he learned from one
Bugoy Monares that his father and Manuel had figured in a fistfight. Since he was unaware of
any grudge between the two protagonists, appellant proceeded to the house of Manuel to ask
him about what might have led to the "quarrel." 5
Just as he arrived at Manuel's house, appellant heard Manuel telling his wife to let go
of him "because he was going to kill (someone)." 6 Confronting Manuel, appellant said, "Manoy
Maning you (fought with) Tata!" Manuel retorted, "Ikaw pa." 7 After freeing himself from his
wife's hold, Manuel lunged towards the accused and appeared to draw at the same time
"something" 8 from his waist. Appellant promptly drew his fan knife and instantly stabbed
Manuel on his breast. Manuel tried to embrace him but appellant gave a second thrust. Manuel
fell to the ground. Appellant refrained from delivering another stab blow and left. 9
At home, appellant told his family that he had killed Manuel, and that he was going to give himself
up. He surrendered to Barangay Captain Eutequiano Velasco of Marcella and handed over the death
weapon. 10 According to Velasco, appellant did not surrender to the barangay captain of Sawang, the
latter being a relative of the victim. 11

After the presentation of evidence, the trial court, on 15 May 1991, rendered a decision disposing of
the case, as follows:

29

"Wherefore, finding without doubt that Bonifacio Patotoy is guilty beyond

reasonable doubt of the crime of Murder and the Mitigating Circumstance of
surrender is offset by treachery. His admission of the crime could not be given
consideration as mitigating as it was made after the prosecution presented its
evidence. This Court hereby renders judgment convicting the accused and
imposes the penalty of Reclusion Perpetua to be served at the National
Penitentiary. He is further ordered to indemnify the heirs of the victim the
amount of P50,000.00 as moral damage and to pay the cost of the suit.
"The Court not having acquired jurisdiction over the person of Sergio Patotoy
his case is hereby placed in Archive(d) and an Alias Warrant for his arrest is
hereby ordered issued.
"The evidence presented during the trial are ordered confiscated in favor of the
government.
"SO ORDERED." 12
In this appeal, appellant contends that the trial court has erred in not sustaining his plea of selfdefense or, in the alternative, in finding that the killing of Manuel Verano has been attended by the
aggravating circumstances of treachery, evident premeditation and abuse of superior strength.
We start with the familiar rule in criminal cases that the burden of proof to show the
guilt of an accused is on the prosecution which must rely on the strength of its own evidence and
not on the weakness of the defense. 13 Where, however, an accused charged with the killing of a
person admits having caused that death but invokes self-defense to escape from criminal
liability, it becomes incumbent upon him to prove by clear and convincing evidence the
positiveness of that justifying circumstance. 14 Self-defense is an affirmative allegation that
must be established with certainty by sufficient and satisfactory proof 15 and, coincidentally, the
existence of the following requisites: (a) unlawful aggression; (b) reasonable necessity of the
means employed by repel it, and (c) lack of sufficient provocation on the part of the person
defending himself. 16 All these conditions must concur. 17
Unlawful aggression presupposes an actual, sudden and unexpected attack, or an
imminent danger thereof, and not merely a threatening or intimidating attitude. There must exist
a real danger to the life or personal safety of the person claiming self-defense. 18 This element,
in the case before us, is sorely wanting. No veritable physical force on the part of Manuel has
been shown that could have really endangered appellant's life. Manuel's alleged act of drawing
"something" from his waist certainly is not the "unlawful aggression" meant in the law that
would justify a fatal strike at the victim with such lightning-speed as appellant has delivered. In
fact, no weapon, supposedly in the person of Manuel, is shown to have been found. Without
unlawful aggression, self-defense cannot exist nor be an extenuating circumstance. 19
The aggravating circumstance of abuse of superiority is present when there is proof of
"gross physical disparity" between protagonists 20 or when force used by the aggressor is out of
proportion to the means of defense available to the victim. 21 The narration of the incident by
the prosecution witnesses (supra), detailing the attack on the hapless victim by appellant and his
co-accused, quite aptly would indicate the presence of this aggravating circumstance. We
cannot, however, appreciate in the same affirmative way the aggravating circumstances of
treachery and evident premeditation. The incident has been preceded by a fistfight between

appellant's father and the victim that must have forewarned the victim. 22 Evident premeditation
cannot be considered absent any convincing evidence that the accused had indeed planned to
commit the offense. 23
The allegation of abuse of superior strength in the information, qualified the killing to murder
pursuant to Article 248(1) of the Revised Penal Code. Voluntary surrender was correctly considered
in appellant's favor by the trial court. Conformably with Article 64(2) of the Revised Penal Code, the
imposable penalty should be the minimum period of the prescribed penalty of reclusion temporal
maximum to death imposed by Article 248 for the crime of murder. Applying the Indeterminate
Sentence Law, appellant could be held to bear the indeterminate penalty of anywhere from ten (10)
years and one (1) day of prision mayor maximum to seventeen (17) years and four (4) months of
reclusion temporal medium, as the minimum penalty, to anywhere from seventeen (17) years, four
(4) months and one (1) day to twenty (20) years (maximum period of reclusion temporal) as the
maximum penalty. The trial court correctly imposed upon appellant the payment of an indemnity of
fifty thousand pesos (P50,000.00) in favor of the heirs of Manuel Verano.
WHEREFORE, the decision of the trial court is hereby AFFIRMED subject to the modification that
appellant Bonifacio Patotoy shall, instead, suffer the indeterminate penalty 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. Costs against appellant.
SO ORDERED.
Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ ., concur
||| (People v. Patotoy, G.R. No. 102058, [August 26, 1996], 329 PHIL 748-758)

EN BANC
[G.R. No. 126114. May 11, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY
SABREDO y GARBO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

30

Accused-appellant Jimmy Sabredo y Garbo was found guilty by the Regional Trial Court of Masbate
of the complex crime of abduction with rape and was sentenced to suffer the supreme penalty of
death. Hence, the present automatic review by the Court. The issues resolved by the Court were the
correctness of appellant's conviction for forcible abduction with rape, and the propriety of the
imposition of the death penalty on him.
The Supreme Court ruled that the trial court erred in convicting accused-appellant of the complex
crime of forcible abduction with rape. According to the Court, while the information sufficiently
alleged the forcible taking of complainant from Cebu to Masbate, the same failed to allege "lewd
designs." There was no legal basis then to convict appellant of the crime because the information
failed to state an essential element of the crime charged. However, when appellant forcibly took away
complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then
absorb forcible abduction. Hence, the crime committed by accused-appellant is simple rape only. The
Court also ruled that R.A. No. 7659 is not applicable in the present case because at the time the rape
was committed, private complainant was already more than eighteen years of age and the information
did not allege that the offender and offended party were relatives within the third degree of
consanguinity. The Court reduced the penalty of death imposed by the trial court to reclusion
perpetua.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; POSITIVE EVIDENCE
PREVAILS OVER BARE DENIAL. The trial court's assessment of the credibility of
complainant's testimony is entitled to great weight, absent any showing that some facts were
overlooked which, if considered, would affect the outcome of the case. We find no reason to overturn
the trial court's detailed evaluation of the evidence for both the prosecution and the defense.
Complainant Judeliza's testimony was given in a straightforward, clear, and convincing manner,
which remained consistent even under cross-examination. The trial court found her testimony
believable and convincing, while appellant's version of events incredible and outrageous. Moreover,
as testified by the medico-legal officer, he found that her body bore evidences of physical and sexual
assault. Appellant's bare denial could not prevail over said positive evidence.
2. CRIMINAL LAW; NO LEGAL BASIS TO CONVICT APPELLANT OF THE COMPLEX
CRIME OF FORCIBLE ABDUCTION WITH RAPE; WHILE THE INFORMATION
SUFFICIENTLY ALLEGES THE FORCIBLE TAKING OF COMPLAINANT FROM CEBU TO
MASBATE, THE SAME FAILS TO ALLEGE "LEWD DESIGNS." Was appellant's conviction by
the trial court for the complex crime of forcible abduction with rape correct? The elements of forcible
abduction are: (1) that the person abducted is any woman, regardless of age, civil status, or
reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs.
The prosecution's evidence clearly shows that the victim was forcibly taken at knifepoint from
Borbon, Cebu by appellant and through threats and intimidation brought to various towns in Masbate,
where he passed her off as his "wife." That appellant was moved by lewd designs was shown in
regard to rape by his having carnal knowledge of private complainant, against her will, on July 4,
1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible abduction, as defined
and penalized by Article 342 of the Revised Penal Code was also committed, we are not totally
disposed to convict appellant for the complex crime of forcible abduction with rape. We note that

while the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate,
the same fails to allege "lewd designs." When a complex crime under Article 48 of the Revised Penal
Code is charged, such as forcible abduction with rape, it is axiomatic that the prosecution must allege
and prove the presence of all the elements of forcible abduction, as well as all the elements of the
crime of rape. When appellant, using a blade, forcibly took away complainant for the purpose of
sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction. Hence,
the crime committed by appellant is simple rape only.
3. ID.; RAPE; APPELLANT'S "SWEETHEART DEFENSE" UNAVAILING; NO MEMENTOS,
LOVE LETTERS, NOTES, PICTURES OR ANY CONCRETE PROOF OF A ROMANTIC
NATURE WAS PRESENTED IN COURT TO SUBSTANTIATE THE CLAIM. Appellant next
insists that the intercourse between him and Judeliza was consensual, since they were sweethearts. A
"sweetheart defense" should be substantiated by some documentary and/or other evidence of the
relationship. In this case, there is no showing of mementos, love letters, notes, pictures, or any
concrete proof of a romantic nature. Besides, as observed by the trial judge, it is contrary to human
experience that a naive rural lass like Judeliza, barely nineteen years old, would willingly consent to
be her uncle's paramour. Nor, would he if he were indeed her sweetheart maltreat her repeatedly for
no justifiable cause, without over-straining our credulity. HCIaDT
4. ID.; PENALTIES; RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES; WHERE
THERE IS NO AGGRAVATING CIRCUMSTANCE PROVED IN THE COMMISSION OF THE
CRIME, THE LESSER PENALTY SHALL BE APPLIED. The imposable penalty for rape under
Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But
where the rape is committed with the use of deadly weapon or by two or more persons, the imposable
penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the
rape. Under Article 63 of the Revised Penal Code, the crucial factor in determining whether appellant
should be meted the death penalty is the presence of an aggravating circumstance which attended the
commission of the crime. A perusal of the record shows that none of the aggravating circumstances
enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution.
Where there is no aggravating circumstance proved in the commission of the offense, the lesser
penalty shall be applied.
5. ID.; SECTION 11 (1) OF REPUBLIC ACT NO. 7659 CANNOT BE MADE TO APPLY IN CASE
AT BAR BECAUSE AT THE TIME THE RAPE WAS COMMITTED, PRIVATE RESPONDENT
WAS ALREADY MORE THAN EIGHTEEN YEARS OF AGE AND THE INFORMATION DID
NOT ALLEGE THAT OFFENDER AND OFFENDED PARTY WERE RELATIVES WITHIN THE
THIRD DEGREE OF CONSANGUINITY. In sentencing appellant to death, the trial court noted
that the victim was his niece, a relative by consanguinity within the third civil degree. Section 11 (1)
of R.A. No. 7659 imposes the death penalty when the rape victim is under 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. However, R.A. No. 7659
cannot be made to apply in the instant case for two reasons: First, at the time the rape was committed,
private complainant was already more than eighteen years of age. Second, the information did not
allege that offender and offended party were relatives within the third degree of consanguinity. We
have held that the seven circumstances in R.A. No. 7659 which warrant the automatic imposition of
the death penalty partake of the nature of qualifying circumstances and as such should be alleged in
the information to be appreciated as such. In view of the failure of the information to comply with

31

this requirement, said degree of relation could not be taken into account in considering the penalty to
be imposed. For these reasons, the sentence on appellant should only be reclusion perpetua.

Jimmy was sleeping, Nilda managed to take away from him the blade, made of stainless steel, which
he had used in the rape of Judeliza. After the initial police investigation, Judeliza was brought to
Masbate Provincial Hospital, where she was confined for four days. The medico-legal officer, Dr.
Artemio Capellan, examined her.

DECISION

On August 11, 1994, the Provincial Prosecutor of Masbate filed an information for forcible abduction
with rape, which alleged:

For automatic review is the judgment of the Regional Trial Court of Masbate, Masbate, Branch 44,
dated May 13, 1996, in Criminal Case No. 7454, imposing the penalty of death on accused-appellant,
Jimmy Sabredo y Garbo, for the complex crime of abduction with rape of complainant Judeliza
Sabredo. cda

"That on or about June 27, 1994, and days thereafter from sitio Caglagang,
Barangay Caguyong, Burbon, Cebu the said accused with force and
intimidation and against the consent of complainant Judeliza E. Sabredo
abduct the latter to sitio Cagba, barangay Tugbo, Municipality of Masbate,
Province of Masbate, Philippines, within the jurisdiction of this court and on
(sic) the house of one auntie Nilda, accused with a bolo did then and there,
willfully, unlawfully and feloniously have sexual intercourse of (sic) said
Judeliza E. Sabredo on the night of July 4, 1994, against her will and consent.

The facts of this case on record are as follows:

"Contrary to law." 1

QUISUMBING, J p:

Appellant is the uncle of complainant. He is the younger brother of her father. In 1993, Jimmy arrived
from Masbate to reside with Judeliza's family in Cagtagong, Caguyong, Borbon, Cebu, where he
stayed with them for more than a year.
On June 27, 1994, Judeliza went to the well near their house, to take a bath. There, Jimmy grabbed
and forcibly dragged her at knife's point, to the highway where he made her board a truck for Bogo,
Cebu. Impelled by fear, she complied, since Jimmy continuously poked a knife under cover of his
jacket at her. From Bogo, he took her by passenger motorboat to Placer, Masbate. Thence he brought
her to Estampar, Cataingan, Masbate, where they stayed at the house of Conchita Tipnit. Conchita
was Jimmy's sister and Judeliza's aunt, though aunt and niece did not know each other. In Estampar,
Judeliza tried to escape but was caught by Jimmy, who severely mauled her until she lost
consciousness.
Suspecting that Conchita would report the matter to the police, Jimmy took Judeliza by jeepney to
Cagba, Tugbo, Masbate. They stayed with Roberto Sabredo, his nephew and Judeliza's first cousin.
The two cousins, however, had not met before and Jimmy was able to pass her off as his wife. They
stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding Judeliza.
On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually assaulted Judeliza. He
covered her mouth to prevent her from shouting. After satisfying his lust, Jimmy inserted three
fingers into her vaginal orifice and cruelly pinched it. Judeliza screamed and cried for help. Their
host, Roberto, was awakened but could not do anything to assist her. Later, Jimmy struck Judeliza
with a piece of wood, rendering her unconcious. Much later, he brought her to the house of his sister,
Nilda Polloso, also at Cagba.

At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on the merits then ensued.
Jimmy admitted having sexual relations with Judeliza, but insisted that it was consensual. He claimed
that they were lovers and had been engaging in sexual intimacies for three months before running
away. He explained that they had gone to Masbate after Judeliza had revealed to him that she was not
really her father's daughter. They then lived together as husband and wife. He admitted having boxed
and kicked her but claimed that he got mad at her after she confided that she really was his niece,
contrary to what she earlier told him. He likewise admitted having pinched the victim's vagina, but
only to punish her for deceiving him about their kinship. He claimed the instant case was filed against
him because of the maltreatment she received. Appellant likewise admitted that he was facing another
rape case before Branch 45 of the same court, which a certain Juanita Turing had filed against him in
1992. He, however, denied having fled to Cebu to escape prosecution for said case.
The trial court found appellant's version of the incident preposterous and his defense untenable.
Choosing to believe the prosecution, the trial judge convicted appellant, and sentenced him thus:
"WHEREFORE, the Court finds the accused guilty beyond reasonable doubt
of the complex crime of forcible abduction with rape under Article 48 in
relation to Article[s] 335 and 342 of the Revised Penal Code and is meted the
extreme penalty of death.
"The accused is likewise ordered to pay Judeliza Sabredo the amount of FIFTY
THOUSAND PESOS (P50,000.00) by way of moral damages.
"SO ORDERED."
Before us, on automatic review of the case, appellant assigns the following errors:

Nilda noticed the victim's weak and wan condition and offered her medicine. Catching Jimmy in the
act of boiling water, she asked what it was for and was told that it would be poured over Judeliza to
finish her off. Nilda, however, stopped him. On July 8, 1994, Judeliza recovered sufficiently from her
injuries. Nilda brought her to the police where Judeliza reported her ordeal. That same day, while

I.
THE TRIAL COURT GRAVELY ERRED IN ITS EVALUATION OF THE
HONESTY OF PRIVATE COMPLAINANT, IN EFFECT GIVING FULL

32

WEIGHT AND CREDENCE TO THE EVIDENCE OF THE PROSECUTION

THAN THAT OF THE DEFENSE.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.
In sum, the issues for resolution now concern the credibility of the testimony of the offended party;
the correctness of appellant's conviction for forcible abduction with rape, and the propriety of the
imposition of the death penalty on him
Appellant submits that Judeliza was neither a reliable nor credible witness since both the information
and her affidavit 2 showed that the rape took place in Nilda's residence, while on direct examination,
Judeliza testified that she was raped at Roberto's house. He claims these inconsistencies cast doubt on
Judeliza's credibility.
However, we have previously held that some discrepancies between the affidavit and the testimony of
the witness in open court do not necessarily impair credibility of the testimony, for affidavits are
generally taken ex parte and are often incomplete or even inaccurate for lack of searching inquiries
by the investigating officer. 3 Note that here both the affidavit and the testimony of complainant in
open court are consistent as to the fact that Jimmy raped her while he threatened her with a deadly
weapon on July 4, 1994. Her sworn affidavit and her testimony in open court establish the basic
elements of rape. These are: the commission of sexual intercourse, by the accused against
complainant, with the use of force and intimidation, without her consent and against her will. Suffice
it to stress that the trial court found that the accused abducted his niece by force, mauled and
maltreated her repeatedly, instilling fear in her, dragged her to different places and any house he
pleased, and ravished her on the night of July 4, 1994. Whether the house belonged to Nilda or
Roberto, both of whom they had stayed with, is not here crucial, for the houses are both in Cagba,
Tugbo, Masbate.
Here, the trial court's assessment of the credibility of complainant's testimony is entitled to great
weight, absent any showing that some facts were overlooked which, if considered, would affect the
outcome of the case. 4 We find no reason to overturn the trial court's detailed evaluation of the
evidence for both the prosecution and the defense. Complainant Judeliza's testimony was given in a
straightforward, clear, and convincing manner, which remained consistent even under crossexamination. The trial court found her testimony believable and convincing, while appellant's version
of events incredible and outrageous. Moreover, as testified by the medico-legal officer, he found that
her body bore evidences of physical and sexual assault. Appellant's bare denial could not prevail over
said positive evidence. LexLib
Appellant next insists that the intercourse between him and Judeliza was consensual, since they were
sweethearts. A "sweetheart defense" should be substantiated by some documentary and/or other
evidence of the relationship. 5 In this case, there is no showing of mementos, love letters, notes,
pictures, or any concrete proof of a romantic nature. Besides, as observed by the trial judge, it is
contrary to human experience that a naive rural lass like Judeliza, barely nineteen years old, would
willingly consent to be her uncle's paramour. Nor, would he if he were indeed her sweetheart maltreat
her repeatedly for no justifiable cause, without over-straining our credulity.

Was appellant's conviction by the trial court for the complex crime of forcible abduction with rape
correct? The elements of forcible abduction are: (1) that the person abducted is any woman,
regardless of age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the
abduction is with lewd designs. The prosecution's evidence clearly shows that the victim was forcibly
taken at knifepoint from Borbon, Cebu by appellant and through threats and intimidation brought to
various towns in Masbate, where he passed her off as his "wife". That appellant was moved by lewd
designs was shown in regard to rape by his having carnal knowledge of private complainant, against
her will, on July 4, 1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible
abduction, as defined and penalized by Article 342 of the Revised Penal Code was also committed,
we are not totally disposed to convict appellant for the complex crime of forcible abduction with
rape. We note that while the information sufficiently alleges the forcible taking of complainant from
Cebu to Masbate, the same fails to allege "lewd designs." When a complex crime under Article 48 of
the Revised Penal Code is charged, such as forcible abduction with rape, it is axiomatic that the
prosecution must allege and prove the presence of all the elements of forcible abduction, as well as
all the elements of the crime of rape. 6 When appellant, using a blade, forcibly took away
complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then
absorb forcible abduction. 7 Hence, the crime committed by appellant is simple rape only.
The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A.
No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or
by two or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of
the bladed weapon already qualified the rape. 8 Under Article 63 of the Revised Penal Code, the
crucial factor in determining whether appellant should be meted the death penalty is the presence of
an aggravating circumstance which attended the commission of the crime. 9 A perusal of the record
shows that none of the aggravating circumstances enumerated in Article 14 of the Revised Penal
Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved
in the commission of the offense, the lesser penalty shall be applied.
In sentencing appellant to death, the trial court noted that the victim was his niece, a relative by
consanguinity within the third civil degree. Section 11 (1) of R.A. No. 7659 imposes the death
penalty when the rape victim is under 18 years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim. However, R.A. No. 7659 cannot be made to apply in the
instant case for two reasons: First, at the time the rape was committed, private complainant was
already more than eighteen years of age. 10 Second, the information did not allege that offender and
offended party were relatives within the third degree of consanguinity. We have held that the seven
circumstances in R.A. No. 7659 which warrant the automatic imposition of the death penalty partake
of the nature of qualifying circumstances and as such should be alleged in the information to be
appreciated as such. 11 In view of the failure of the information to comply with this requirement, said
degree of relation could not be taken into account in considering the penalty to be imposed. For these
reasons, the sentence on appellant should only be reclusion perpetua.

We note that the trial court did not award any indemnity ex delicto, which current jurisprudence has
fixed at P50,000.00. Accordingly, appellant is further sentenced to indemnify private complainant in
the amount of P50,000.00 for the rape he committed against her. As to moral damages, we find the
trial court's award of P50,000.00 in her favor duly supported by evidence on record and is in order.

33

WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate. Branch 44, in
Criminal Case No. 7454, is hereby MODIFIED. Appellant Jimmy Sabredo y Garbo is declared guilty
beyond reasonable doubt of simple rape only as defined and penalized under Article 335 of the
Revised Penal Code. The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is
also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the amount of FIFTY
THOUSAND (P50,000.00) PESOS as civil indemnity, and to pay her FIFTY THOUSAND
(P50,000.00) PESOS as moral damages. Costs against appellant. cdphil
SO ORDERED.
Davide Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Pardo, Buena, GonzagaReyes, Ynares-Santiago and De Leon Jr., JJ., concur.
Purisima, J., is on leave.
Kapunan, J., took no part. Did not participate in the deliberation.
||| (People v. Sabredo, G.R. No. 126114, [May 11, 2000], 387 PHIL 682-693)

THIRD DIVISION
[G.R. Nos. 76338-39. February 26, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO TAC-AN Y
HIPOS, accused-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Amadeo D. Seno for accused-appellant.

SYLLABUS
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; SELF-DEFENSE; REQUISITES.
Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot
Francis. For a claim of self-defense to be sustained, the claimant must show by clear and convincing
evidence that the following requisites existed: a) unlawful aggression on the part of the victim; b)
reasonable necessity of the means employed by the accused to repel the aggression; and c) lack of
sufficient provocation on the part of the accused.
2. ID.; ID.; ID.; ID.; UNLAWFUL AGGRESSION; ALLEGED UTTERANCES IN A CLASSROOM
BY AN UNARMED VICTIM CANNOT BE REGARDED AS AN UNLAWFUL AGGRESSION.
Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English

III class, Francis had approached him saying: 'Go home, get your firearm because I will go home to
get a gun.' 'You go home get your firearm, if you won't go home and get a gun, I will go to your place
and kill you including your parents, brothers and sisters.' We note at the outset that there was no
evidence before the Court, except Renato's own testimony, that Francis had uttered the above
statements attributed to him by Renato. Although there had been about twenty-five (25) other
students, and the teacher, in the classroom at the time, no corroborating testimony was offered by the
defense. In the second place, assuming (arguendo merely) that Francis had indeed made those
statements, such utterances cannot be regarded as the unlawful aggression which is the first and most
fundamental requirement of self-defense. Allegedly uttered in a high school classroom by an
obviously unarmed Francis, such statements could not reasonably inspire the "well grounded and
reasonable belief" claimed by Renato that "he was in imminent danger of death or bodily harm."
3. ID.; ID.; ID.; ID.; IN THE ABSENCE OF UNLAWFUL AGGRESSION THERE IS NO SELFDEFENSE, COMPLETE OR INCOMPLETE. Unlawful aggression refers to an attack that has
actually broken out or materialized or at the very least is clearly imminent: it cannot consist in oral
threats or a merely threatening stance or postured. Further, as pointed out by the Solicitor General,
Francis was obviously without a firearm or other weapon when Renato returned and burst into Room
15 demanding to know where Francis was and forthwith firing at him repeatedly, without the slightest
regard for the safety of his other classmates and of the teacher. There being no unlawful aggression,
there simply could not be self-defense whether complete or incomplete, and there is accordingly no
need to refer to the other requirements of lawful self-defense.
4. ID.; P.D. NO. 1866; ENFORCEABILITY OF THE LAW DID NOT LAPSE UPON THE
TERMINATION OF MARTIAL LAW. There is nothing in P.D. No. 1866 (which was promulgated
on 29 June 1983) which suggests that it was intended to remain in effect only for the duration of the
martial law imposed upon the country by former President Marcos. Neither does the statute contain
any provision that so prescribes its lapsing into non-enforceability upon the termination of the state or
period of martial law. On the contrary, P.D. No. 1866 by its own terms purported to "consolidate,
codify and integrate" all prior laws and decrees penalizing illegal possession and manufacture of
firearms, ammunition and explosives in order "to harmonize their provisions," as well as to update
and revise certain provisions and prior statutes "in order to more effectively deter violators of the law
on firearms, ammunitions and explosives."
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST DOUBLE JEOPARDY;
FILING OF CASE FOR UNLAWFUL POSSESSION OF FIREARM DOES NOT BAR FILING OF
CASE FOR MURDER. It is elementary that the constitutional right against double jeopardy
protects one against a second or later prosecution for the same offense, and that when the subsequent
information charges another and different offense, although arising from the same act or set of acts,
there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense
charged in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized
under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder
punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in
themselves are quite different one from the other, such that in principle, the subsequent filing of
Criminal Case No 4012 is not to be regarded as having placed appellant in a prohibited second
jeopardy.
6. ID.; ID.; ID.; ID.; ADDITIONAL ALLEGATIONS IN THE INFORMATION DOES NOT HAVE
THE EFFECT OF CHARGING FOR THE SAME OFFENSE. We note that the information in

34

Criminal Case No. 4007 after charging appellant with unlawful possession of an unlicensed firearm
and ammunition, went on to state that said firearm and ammunition had been used to shoot to death
Francis Ernest Escao III. We note also that the amended information in Criminal Case No. 4012
after charging appellant with the unlawful killing of Francis Ernest Escao III, stated that the killing
had been done with the use of an unlicensed firearm. We believe these additional allegations in the
two (2) informations did not have the effect of charging appellant with having committed the same
offense more than once.

10. ID.; ID.; ID.; ID.; FIRING AGAIN AT THE VICTIM SHOWS CONSCIOUS CHOICE OF
EXECUTION TO ENSURE DEATH OF VICTIM WITHOUT RISK TO ASSAILANT. Finally,
the circumstance that Renato, having been informed that Francis was still alive, re-entered Room 15
and fired again at Francis who lay on the floor and bathed with his own blood, manifested Renato's
conscious choice of means of execution which directly and especially ensured the death of his victim
without risk to himself. We are compelled to agree with the trial court that treachery was here present
and that, therefore, the killing of Francis Ernest Escao III was murder.

7. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; USE OF AN UNLICENSED

FIREARM; NOT PROVIDED IN ARTICLE 14 OF THE REVISED PENAL CODE. However, in
sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did take into
account as a "special aggravating circumstance" the fact that the killing of Francis had been done
"with the use of an unlicensed firearm." In so doing, we believe and so hold, the trial court committed
error. There is no law which renders the use of an unlicensed firearm as an aggravating circumstance
in homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of
homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point
is that the unlicensed character or condition of the instrument used in destroying human life or
committing some other clime, is not included in the inventory of aggravating circumstances set out in
Article 14 of the Revised Penal Code.

11. ID.; AGGRAVATING CIRCUMSTANCE; EVIDENT PREMEDITATION; REQUISITES.

The trial court also found the presence of evident premeditation and appreciated the same as a generic
aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident
premeditation had not been sufficiently shown. In order that evident premeditation may be taken into
account, there must be proof of (a) the time when the offender formed his intent to commit the crime;
(b) an action manifestly indicating that the offender had clung to his determination to commit the
crime; and (c) of the passage of a sufficient interval of time between the determination of the offender
to commit the crime and the actual execution thereof, to allow him to reflect upon the consequences
of his act.

8. ID.; P.D. NO. 1866; AUTHORIZES THE INCREASE OF THE IMPOSABLE PENALTY;
UNLAWFUL POSSESSION OF AN UNLICENSED FIREARM OR AMMUNITION IS
PUNISHED UNDER A SPECIAL LAW. In contrast, under an information for unlawful
possession (or manufacture, dealing in, acquisition or disposition) of a firearm or ammunition, P.D.
No. 1866 authorizes the increase of the imposable penalty for unlawful possession or manufacture,
etc. of the unlicensed firearm where such firearm was used to destroy human life. Although the
circumstance that human life was destroyed with the use of the unlicensed firearm is not an
aggravating circumstance under Article 14 of the Revised Penal Code, it may still be taken into
account to increase the penalty to death (reclusion perpetua, under the 1987 Constitution) because of
the explicit provisions of P.D. No. 1866. As noted earlier, the unlawful possession of an unlicensed
firearm or ammunition is an offense punished under a special law and not under the Revised Penal
Code.
9. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; CUMULATIVE EFFECT OF
CIRCUMSTANCES SHOW THAT THE ATTACK WAS CARRIED OUT TO DISABLE THE
VICTIM FROM DEFENDING HIMSELF. The Court also pointed out that Renato must have
known that Francis while inside Room 15 had no means of escape there being only one (1) door and
Room 15 being on the second floor of the building. Renato in effect blocked the only exit open to
Francis as he stood on the teacher's platform closest to the door and fired as Francis and Ruel sought
to dash through the door. Renato's question "where is Francis?" cannot reasonably be regarded as an
effort to warn Francis for he shot at Francis the instant he sighted the latter, seated and talking to Ruel
Ungab. That Renato fired three (3) shots before hitting Francis with the fourth shot, can only be
ascribed to the indifferent marksmanship of Renato and to the fact that Francis and the other students
were scurrying from one part of the room to the other in an effort to evade the shots fired by Renato.
The cumulative effect of the circumstances underscored by the trial court was that the attack upon
Francis had been carried out in a manner which disabled Francis from defending himself or
retaliating against Renato.

12. ID.; ID.; ID.; ID.; NOT APPRECIATED WHERE THERE IS NO EVIDENCE ADEQUATELY
SHOWING WHEN THE INTENTION AND DETERMINATION TO KILL WAS FORMED. The
defense pointed out that barely fifteen (15) minutes had elapsed from the time Renato left his English
III class and the time he returned with a gun. While there was testimony to the fact that before that
fatal day of 14 December 1984, anger and resentment had welled up between Francis and Renato,
there was no evidence adequately showing when Renato had formed the intention and determination
to take the life of Francis. Accordingly, we must discard evident premeditation as an aggravating
circumstance.
13. ID.; B.P. BLG. 179; COURT MUST BE WARY AND CRITICAL OF INDIRECT EVIDENCE.
In the absence of competent medical or other direct evidence of ingestion of a dangerous drug,
courts may be wary and critical of indirect evidence, considering the severe consequences for the
accused of a finding that he had acted while under the influence of a prohibited drug. The Court
considers that the evidence presented on this point was simply inadequate to support the ruling of the
trial court that Renato had shot and killed Francis while under the influence of a prohibited drug.
14. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; FACT THAT ACCUSED
DID NOT CONSTITUTE VOLUNTARY SURRENDER. Appellant contends that he had
voluntarily surrendered and that the trial court should have considered that mitigating circumstance in
his favor. The trial court did not, and we consider that it correctly refused to do so. Firstly, Renato
surrendered his gun, not himself, by handing over the weapon through the balustrade of the faculty
room. Secondly, he surrendered the gun to his brother, who was not in any case a person in authority
nor an agent of a person in authority. Thirdly, Renato did not surrender himself: he was arrested by
Capt. Lazo. The fact that he did not resist arrest, did not constitute voluntary surrender. Finally, if it
be assumed that Renato had surrendered himself, such surrender cannot be regarded as voluntary and
spontaneous. Renato was holed up in the faculty room, in effect holding some teachers and students
as hostages. The faculty room was surrounded by Philippine Constabulary soldiers and there was no
escape open to him. He was not entitled to the mitigating circumstance of voluntary surrender.

35

15. ID.; AGGRAVATING CIRCUMSTANCE; PERSON IN AUTHORITY; TEACHER OR

PROFESSOR IS NOT TO BE REGARDED AS A "PUBLIC AUTHORITY" WITHIN THE
MEANING OF ARTICLE 14 OF THE REVISED PENAL CODE. Careful reading of the last
paragraph of Article 152 will show that while a teacher or professor of a public or recognized private
school is deemed to be a "person in authority," such teacher or professor is so deemed only for
purposes of application of Articles 148 (direct assault upon a person in authority), and 151 (resistance
and disobedience to a person in authority or the agents of such person) of the Revised Penal Code. In
marked contrast, the first paragraph of Article 152 does not identify specific articles of the Revised
Penal Code for the application of which any person "directly vested with jurisdiction, etc." is deemed
"a person in authority." Because a penal statute is not to be given a longer reach and broader scope
than is called for by the ordinary meaning of the ordinary words used by such statute, to the
disadvantage of an accused, we do not believe that a teacher or professor of a public or recognized
private school may be regarded as a "public authority" within the meaning of paragraph 2 of Article
14 of the Revised Penal Code, the provision the trial court applied in the case at bar.

DECISION

FELICIANO, J p:
Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City,
convicting him of qualified illegal possession of a firearm and ammunition in Criminal Case No.
4007 and of murder in Criminal Case No. 4012 and imposing upon him the penalty of death in both
cases.
On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of
Presidential Decree No. 1866, committed as follows:
"That, on or about the 14th day of December, 1984, in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, while acting under the influence of drugs and without any
license or permit from the proper authorities, did then and there willfully,
unlawfully and feloniously have in his possession, custody and control an
unlicensed firearm, a SMITH & WESSON Airweight caliber .38 revolver with
Serial Number 359323 with Five (5) spent shells and Five (5) live
ammunitions and without any justifiable cause and with intent to kill, used the
said firearm and ammunitions to shoot one Francis Ernest Escao III hitting
and inflicting upon the latter the following gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS Head & Chest
(through and through);
Head Entrance 1.4 x 2.2 cm., Left FrontoTemporal Area; Port 1.3 x 0.3 cm.; Right Cheek, 3.5 cm.,
above the right external meatus;

Chest Entrance 0.3 x 1 cm. Right Infrascapular

Area at the level of the 7th Intercostal Rib (Back); Exist - 0.3
cm. dia; above the right nipple;
Y-shape laceration, check at the right angle of the
mouth, Right.
Dimensions: 3 x 1.2 cm. x 1.8'
which gunshot wounds or injuries directly caused his death, to the
damage and prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of Section 1, paragraph 2 of the
Presidential Decree No. 1866." 1
On 11 January 1985, an amended information 2 for murder was also filed against appellant reading as
follows:
That, on or about the 14th day of December, 1984 in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, without any justifiable cause and with intent to kill, evident
premeditation, treachery, while acting under the influence of drugs, with
cruelty and deliberately augmenting the suffering of the victim, did then and
there willfully, unlawfully and feloniously attack, assault and shot one Francis
Ernest Escao with the use of an unlicensed SMITH & WESSON Airweight
caliber .38 revolver with Serial Number 359323 hitting and inflicting upon the
latter the following gunshot wounds or injuries, to wit:
'MULTIPLE GUNSHOT WOUNDS Head and
Chest (Through & Through);
Head Entrance 1.4 x 2.2 cm., Left Fronto-temporal
Area; Port 1.3 x 0.3 cm., Right Cheek, 3.5 cm., above the
right external meatus;
Chest Entrance 0.3 x 1 cm. right Infrascapular
Area at the level of the 7th Inter-Costal Rib (back); exit 0.3
cm. dia; above the right nipple.
Y-shape laceration, cheek at the angle of the mouth,
Right.
Dimensions: 3 x 1.2 cm. x 1.8.'
which gunshot wounds or injuries directly caused his death, to the
damage and prejudice of the heirs of the deceased namely: Judge &
Mrs. Francisco Rey H. Escao in the amount to be proved during the
trial of the case.
Acts committed contrary to the provisions of Article 248 of the Revised Penal
Code, in relation to Section 17 of Batas Pambansa Blg. 179, with the
qualifying aggravating circumstances of evident premeditation, treachery and
acting under the influence of dangerous drugs and cruelty.

36

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated
upon motion of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a decision
3 convicting appellant under both informations. The dispositive portion of the decision read as
follows: cdrep
WHEREFORE, all the foregoing premises considered, decision is hereby
rendered in Criminal Case No. 4007 finding the accused Renato Tac-an y
Hipos GUILTY beyond reasonable doubt of Illegal Possession of Firearms and
Ammunitions qualified with Murder under Section 1, paragraphs 1 and 2 of
Presidential Decree No. 1866 and hereby sentences said Renato Tac-an y
Hipos to suffer the penalty of DEATH. Further, decision is also rendered in
Criminal Case No. 4012 finding the same accused Renato Tac-an y Hipos
GUILTY beyond reasonable doubt of Murder under Article 248 of the Revised
Penal Code, in relation to Batas Pambansa Blg. 179 and P.D. 1866.
Appreciating the aggravating circumstance of evident premeditation (treachery
used to qualify the crime to murder) and the special aggravating circumstances
of acting while under the influence of dangerous drugs and with the use of an
unlicensed firearm and with insult to a person in authority and there being no
mitigating circumstance to offset them, and sentences the said Renato Tac-an y
Hipos to suffer the penalty of DEATH. The accused is likewise ordered to
indemnify the heirs of the deceased Francis Ernest Escao in the amount of
THIRTY THOUSAND PESOS (P30,000.00); to pay actual compensatory
damages in the amount of ONE HUNDRED EIGHT THOUSAND THREE
HUNDRED TEN PESOS (P108,310.00); to pay moral damages to Judge
Francisco Escao, Jr., the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) and to Mrs. Lydia Escao the sum of ONE HUNDRED
THOUSAND PESOS (P100,000.00) for the mental anguish and suffering each
experienced because of the death of Francis Ernest. All such amount shall earn
legal interest from the time this decision shall become final and executory until
fully satisfied. The accused shall also pay the costs.
SO ORDERED."
Immediately after promulgation of the decision, appellant signified his intention to appeal to this
Court, although the same was subject to automatic review by this Court.
In his brief, appellant assigned the following as errors allegedly committed by the trial court:
"I. The lower court erred in believing the prosecution's version of the case
instead of according full faith and credence to the defendant's version.
II. The trial court erred in not holding that Renato Tac-an was justified in
shooting the deceased.
III. The trial court erred in not holding that in (sic) the least the defendant acted
in incomplete self-defense in shooting the deceased.

IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the
defendant inasmuch as said decree was enforceable only during the existence
of the Martial Law Regime.
V. The trial court erred in not holding that the defendant was placed twice in
jeopardy for having been prosecuted for violation of P.D. 1866 despite his
being prosecuted for murder in an information which alleges that the accused
used an unlicensed firearm in killing the deceased.
VI. The trial court erred in not adjudging the defendant innocent of murder.
From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased
Francis Ernest Escao III, fifteen (15) years old, were classmates in the third year of high school of
the Divine Word College in Tagbilaran City. They were close friends, being not only classmates but
also members of the same gang, the Bronx gang. Renato had been to the house where Francis and his
parents lived, on one or two occasions. On those occasions, Francis' mother noticed that Renato had a
handgun with him. Francis was then advised by his mother to distance himself from Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour.
Sometime in September 1984, Renato and Francis quarrelled with each other, on which occasion
Francis bodily lifted Arnold Romelde from the ground. Arnold was friend and companion to Renato.
The quarrel resulted in Renato and Francis being brought to the high school principal's office. The
strained relationship between the two (2) erstwhile friends was aggravated in late November 1984
when Francis learned that Renato, together with other members of the Bronx gang, was looking for
him, apparently with the intention of beating him up. Further deterioration of their relationship
occurred sometime in the first week of December 1984, when graffiti appeared on the wall of the
third year high school classroom and on the armrest of a chair in that classroom, deprecating the
Bronx gang and describing Renato as "bayot" (homosexual). 5 Renato attributed the graffiti to
Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high
school building to attend his English III class. Renato placed his scrapbook prepared for their
Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a question.
Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was angered by
what he saw and promptly kicked the chair on which Francis was seated. Francis, however, explained
that he had not intentionally sat down on Renato's scrapbook. A fistfight would have ensued but some
classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas, intervened and prevented
them from assaulting each other. After the two (2) had quieted down and apparently shaken hands at
the instance of Mrs. Baluma, the latter resumed her English III class. Francis sat on the last row to the
extreme right of the teacher while Renato was seated on the same last row at the extreme left of the
teacher. While the English III class was still going on, Renato slipped out of the classroom and went
home to get a gun. He was back at the classroom approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in Room
15 when Renato suddenly burst into the room, shut the door and with both hands raised, holding a
revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to the right of student
Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the armrest of Ruel's

37

chair. Francis and Ruel jumped up and with several of their classmates rushed forward towards the
teacher's platform to seek protection from their teacher. Renato fired a second time, this time hitting
the blackboard in front of the class. Francis and the other students rushed back towards the rear of the
room. Renato walked towards the center of the classroom and fired a third time at Francis, hitting the
concrete wall of the classroom. Francis and a number of his classmates rushed towards the door, the
only door to and from Room 15. Renato proceeded to the teacher's platform nearest the door and for
the fourth time fired at Francis as the latter was rushing towards the door. This time, Francis was hit
on the head and he fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the room
by a friend; Francis remained sprawled on the floor bleeding profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo
Baluma, apparently unaware that it was Renato who had gunned down Francis, approached Renato
and asked him to help Francis as the latter was still alive inside the room. Renato thereupon reentered Room 15, closed the door behind him, saying: "So, he is still alive. Where is his chest?"
Standing over Francis sprawled face down on the classroom floor, Renato aimed at the chest of
Francis and fired once more. The bullet entered Francis' back below the right shoulder, and exited on
his front chest just above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato
proceeded to the ground floor and entered the faculty room. There, he found some teachers and
students and ordered them to lock the door and close the windows, in effect holding them as
hostages. He also reloaded his gun with five (5) bullets. After some time, a team of Philippine
Constabulary troopers led by Capt. Larino Lazo arrived and surrounded the faculty room. With a
hand-held public address device, Capt. Lazo called upon Renato to surrender himself. Renato did not
respond to this call. Renato's brother approached Capt. Lazo and volunteered to persuade his brother
to give up. Renato's father who, by this time had also arrived, pleaded with Renato to surrender
himself. Renato then turned over his gun to his brother through an opening in the balustrade of the
faculty room. Capt. Lazo took the gun from Renato's brother, went to the door of the faculty room,
entered and placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but
could not open the door which Renato had locked behind him. One of the students entered the room
by climbing up the second floor on the outside and through the window and opened the door from the
inside. The teachers and students brought Francis down to the ground floor from whence the PC
soldiers rushed him to the Celestino Gallares Memorial Hospital. 10 Francis died before reaching the
hospital.

1. Mrs. Liliosa Baluma who testified as to, among other things, the events
which took place inside her English III classroom immediately before the
shooting;
2. Ruel Ungab a fifteen (15) year old classmate of Renato and Francis, who
had fallen on the floor with Francis when the latter was finally hit by Renato;
3. Damaso Pasilbas the Mathematics teacher who was holding his class
when Renato had burst into Room 15 and started firing at Francis; and
4. Napoleon Jumauan another sixteen (16) year old, classmate of Renato
and Francis who was inside the classroom when Renato had started firing at
Francis and who was only about a foot away from the head of Francis when
Renato, having re-entered Room 15, had fired at Francis as the latter was
sprawled on the floor of the classroom.
After careful examination of the record, we find no reason to disagree with the conclusion of the trial
court that Renato had indeed shot and killed Francis under the circumstances and in the manner
described by these witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot
Francis. For a claim of self-defense to be sustained, the claimant must show by clear and convincing
evidence that the following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the accused to repel the
aggression; and
c) lack of sufficient provocation on the part of the accused. 12
Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's
English III class, Francis had approached him:
"(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a conversation with Francis?

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer
deposited the revolver recovered from Renato which was an Airweight Smith and Wesson .38 caliber
revolver, with Serial No. 359323, as well as the five (5) live bullets removed from the said revolver,
and the five (5) empty cartridges which Renato had turned over to him. Ballistic examination
conducted by Supervising Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu,
showed that the empty cartridge cases had been fired from the revolver recovered from Renato. 11

(Renato)

Appellant at the outset assails the trial court for having believed the prosecution's version of the facts
instead of the version offered by the appellant. The trial court took into account, inter alia, the
positive and direct testimony of: cdll

A: While our teacher was writing on the blackboard Francis suddenly

got near me.

A: While the class was going on, Mrs. Baluma was writing on the
blackboard.
Q: Then what happened?

Q: And what happened when Francis approached you?

38

A: He said, 'So you are brave now you had a (sic) guts to fight against
me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm because I will go home to get a
gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your firearm, if you won't go
home and get a gun, I will go to your place and kill you
including your parents, brothers and sisters.'

Q: And after that where did Francis go?

A: Before the bell rang he went ahead." 13
(Emphasis supplied)
We note at the outset that there was no evidence before the Court, except Renato's own testimony,
that Francis had uttered the above statements attributed to him by Renato. Although there had been
about twenty-five (25) other students, and the teacher, in the classroom at the time, no corroborating
testimony was offered by the defense. In the second place, assuming (arguendo merely) that Francis
had indeed made those statements, such utterances cannot be regarded as the unlawful aggression
which is the first and most fundamental requirement of self-defense. Allegedly uttered in a high
school classroom by an obviously unarmed Francis, such statements could not reasonably inspire the
"well grounded and reasonable belief" claimed by Renato that "he was in imminent danger of death
or bodily harm." 14 Unlawful aggression refers to an attack that has actually broken out or
materialized or at the very least is clearly imminent: it cannot consist in oral threats or a merely
threatening stance or postured. 15 Further, as pointed out by the Solicitor General, Francis was
obviously without a firearm or other weapon when Renato returned and burst into Room 15
demanding to know where Francis was and forthwith firing at him repeatedly, without the slightest
regard for the safety of his other classmates and of the teacher. There being no unlawful aggression,
there simply could not be self-defense whether complete or incomplete, 16 and there is accordingly
no need to refer to the other requirements of lawful self-defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed
firearm, a Smith and Wesson Airweight .38 caliber revolver with five (5) spent bullets and five (5)
live ones and with having used such firearm and ammunition to shoot to death Francis Ernest Escao
III, in violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to be
Used in the Manufacture of Firearms or Ammunition. The penalty of

reclusion temporal in its maximum period to reclusion perpetua shall be

imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the
penalty of death shall be imposed." (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D.
No. 1866] issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during the
existence of martial law, and that when martial law was "lifted in 1979," the reason for the
"existence" of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is,
Section 2692 of the [Revised] Administrative Code, together with its pre-martial law amendments,
came into effect again thereby replacing P.D. No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it
was intended to remain in effect only for the duration of the martial law imposed upon the country by
former President Marcos. Neither does the statute contain any provision that so prescribes its lapsing
into non-enforceability upon the termination of the state or period of martial law. On the contrary,
P.D. No. 1866 by its own terms purported to "consolidate, codify and integrate" all prior laws and
decrees penalizing illegal possession and manufacture of firearms, ammunition and explosives in
order "to harmonize their provisions," as well as to update and revise certain provisions and prior
statutes "in order to more effectively deter violators of the law on firearms, ammunitions and
explosives." 18 Appellant's contention is thus without basis in fact. LLphil
3. The claim of double jeopardy.
It is also contended by appellant that because he had already been charged with illegal possession of a
firearm and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed
firearm to commit a homicide or murder, he was unconstitutionally placed in jeopardy of punishment
for the second time when he was charged in Criminal Case No. 4012 with murder "with the use of an
unlicensed [firearm]," in violation of Article 248 of the Revised Penal Code in relation to Section 17
of B.P. Blg. 179.
It is elementary that the constitutional right against double jeopardy protects one against a second or
later prosecution for the same offense, and that when the subsequent information charges another and
different offense, although arising from the same act or set of acts, there is no prohibited double
jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No.
4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while
the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal
Code. It would appear self-evident that these two (2) offenses in themselves are quite different one
from the other, such that in principle, the subsequent filing of Criminal Case No 4012 is not to be
regarded as having placed appellant in a prohibited second jeopardy.
We note that the information in Criminal Case No. 4007 after charging appellant with unlawful
possession of an unlicensed firearm and ammunition, went on to state that said firearm and
ammunition had been used to shoot to death Francis Ernest Escao III. We note also that the amended
information in Criminal Case No. 4012 after charging appellant with the unlawful killing of Francis

39

Ernest Escao III, stated that the killing had been done with the use of an unlicensed firearm. We
believe these additional allegations in the two (2) informations did not have the effect of charging
appellant with having committed the same offense more than once.
However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court
did take into account as a "special aggravating circumstance" the fact that the killing of Francis had
been done "with the use of an unlicensed firearm." In so doing, we believe and so hold, the trial court
committed error. There is no law which renders the use of an unlicensed firearm as an aggravating
circumstance in homicide or murder. Under an information charging homicide or murder, the fact
that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the
second offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution).
The essential point is that the unlicensed character or condition of the instrument used in destroying
human life or committing some other clime, is not included in the inventory of aggravating
circumstances set out in Article 14 of the Revised Penal Code. 19
In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or
disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable
penalty for unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm
was used to destroy human life. Although the circumstance that human life was destroyed with the
use of the unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised
Penal Code, it may still be taken into account to increase the penalty to death (reclusion perpetua,
under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier, the
unlawful possession of an unlicensed firearm or ammunition is an offense punished under a special
law and not under the Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before any shot was fired, Renato had
shouted "where is Francis?" Appellant in effect suggests his opening statement was a warning to
Francis and that the first three (3) shots he had fired at Francis were merely warning shots. Moreover,
building upon his own testimony about the alleged threat that Francis had uttered before he (Renato)
left his English III class to go home and get a gun, appellant argues that Francis must have anticipated
his return and thus had sufficient time to prepare for the coming of the appellant. 20 Appellant's
contention, while ingenious, must be rejected. The trial court made a finding of treachery taking
explicit account of the following factors:
"1. Room 15 of the Divine Word College, High School Department, Tagbilaran
City, is situated in the second floor of the building. It is a corner room and it
has only one (1) door which is the only means of entry and exit;
2. At the time of the attack, the deceased was seated on his chair inside his
classroom and was writing on the armrest of his chair and also talking to Ruel
Ungab and while their teacher, Mr. Damaso Pasilbas was checking the
attendance. The deceased was not aware of any impending assault neither did
he have any means to defend himself;
3. The accused used an airweight Smith & Wesson .38 caliber revolver in
shooting to death the defenseless and helpless Francis Ernest Escao;

4. The attack was so sudden and so unexpected. The accused consciously

conceived that mode of attack;
5. The accused fired at Francis again and again and did not give him a chance
to defend himself. After the deceased was hit on the head and fell to the floor
while he was already sprawled and completely defenseless the accused fired at
him again and the deceased was hit on the chest;
6. The deceased was not armed. He was totally defenseless. He was absolutely
not aware of any coming attack." 21

The Court also pointed out that Renato must have known that Francis while inside Room 15 had no
means of escape there being only one (1) door and Room 15 being on the second floor of the
building. Renato in effect blocked the only exit open to Francis as he stood on the teacher's platform
closest to the door and fired as Francis and Ruel sought to dash through the door. Renato's question
"where is Francis?" cannot reasonably be regarded as an effort to warn Francis for he shot at Francis
the instant he sighted the latter, seated and talking to Ruel Ungab. That Renato fired three (3) shots
before hitting Francis with the fourth shot, can only be ascribed to the indifferent marksmanship of
Renato and to the fact that Francis and the other students were scurrying from one part of the room to
the other in an effort to evade the shots fired by Renato. The cumulative effect of the circumstances
underscored by the trial court was that the attack upon Francis had been carried out in a manner
which disabled Francis from defending himself or retaliating against Renato. Finally, the
circumstance that Renato, having been informed that Francis was still alive, re-entered Room 15 and
fired again at Francis who lay on the floor and bathed with his own blood, manifested Renato's
conscious choice of means of execution which directly and especially ensured the death of his victim
without risk to himself. 22 We are compelled to agree with the trial court that treachery was here
present and that, therefore, the killing of Francis Ernest Escao III was murder. Cdpr
5. The claim that there was no evident premeditation.
The trial court also found the presence of evident premeditation and appreciated the same as a generic
aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident
premeditation had not been sufficiently shown. In order that evident premeditation may be taken into
account, there must be proof of (a) the time when the offender formed his intent to commit the crime;
(b) an action manifestly indicating that the offender had clung to his determination to commit the
crime; and (c) of the passage of a sufficient interval of time between the determination of the offender
to commit the crime and the actual execution thereof, to allow him to reflect upon the consequences
of his act. 23 The defense pointed out that barely fifteen (15) minutes had elapsed from the time
Renato left his English III class and the time he returned with a gun. While there was testimony to the
fact that before that fatal day of 14 December 1984, anger and resentment had welled up between
Francis and Renato, there was no evidence adequately showing when Renato had formed the
intention and determination to take the life of Francis. Accordingly, we must discard evident
premeditation as an aggravating circumstance.
6. The claim that the killing was not done under the influence of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:

40

"SEC. 17. The provisions of any law to the contrary notwithstanding, when a
crime is committed by an offender who is under the influence of dangerous
drugs, such state shall be considered as a qualifying aggravating circumstance
in the definition of a crime and the application of the penalty provided for in
the Revised Penal Code."
The trial court found that Francis was killed by Renato while the later was under the influence of a
dangerous drug, specifically marijuana, and took that into account as a "special aggravating
circumstance". No medical evidence had been submitted by the prosecution to show that Renato had
smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after December
14,1984 before Renato was medically examined for possible traces of marijuana; the results of the
examination were negative. Defense witness Dr. Rogelio Ascona testified that in order to have a
medically valid basis for determining the presence of marijuana in the human system, the patient
must be examined within twenty-four (24) hours from the time he is supposed to have smoked
marijuana. 24 The prosecution had presented Orlando Balaba, a student at the Divine Word College,
High School Department, who testified that he found Renato and one Jaime Racho inside the men's
room of the High School Department sucking smoke from a hand-rolled thing that look like a
cigarette, that he had asked Renato what that was and that Renato had replied "damo" (marijuana). 25
While the testimony of Orlando Balaba was corroborated by two (2) other prosecution witnesses, we
believe that Orlando Balaba's testimony was incompetent to show that what Renato and Jaime Racho
were smoking inside the men's room was indeed marijuana. It was pointed out by appellant that
Orlando Balaba had never smoked nor smelled marijuana.
In the absence of medical evidence, the Court took into account certain detailed factors as
circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances were:
"The circumstance of place where the killing was committed, the circumstance
of the manner of the attack, the circumstance of holding hostage some teachers
and students inside the faculty room, the circumstance of terrifying an entire
school, the circumstance that sitting on a scrapbook is too insignificant as to
arouse passion strong enough to motivate a killing, are circumstantial
evidences that gave the court no room for doubt that prosecution witnesses
Orlando Balaba, Benjamin Amper and Allan de la Serna truthfully told the
court that they saw the accused smoking marijuana inside the comfort room at
1:45 in the afternoon of December 14, 1984 . . ."" 26
The above circumstances pointed to by the trial court may be indicative of passionate anger on
the part of Renato; we do not believe that they necessarily show that Renato had smoked
marijuana before entering his English III class. In the absence of competent medical or other
direct evidence of ingestion of a dangerous drug, courts may be wary and critical of indirect
evidence, considering the severe consequences for the accused of a finding that he had acted
while under the influence of a prohibited drug. The Court considers that the evidence presented
on this point was simply inadequate to support the ruling of the trial court that Renato had shot
and killed Francis while under the influence of a prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial court should have considered
that mitigating circumstance in his favor. The trial court did not, and we consider that it correctly

refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing over the weapon
through the balustrade of the faculty room. Secondly, he surrendered the gun to his brother, who was
not in any case a person in authority nor an agent of a person in authority. 28 Thirdly, Renato did not
surrender himself: he was arrested by Capt. Lazo. The fact that he did not resist arrest, did not
constitute voluntary surrender. 29 Finally, if it be assumed that Renato had surrendered himself, such
surrender cannot be regarded as voluntary and spontaneous. Renato was holed up in the faculty room,
in effect holding some teachers and students as hostages. The faculty room was surrounded by
Philippine Constabulary soldiers and there was no escape open to him. He was not entitled to the
mitigating circumstance of voluntary surrender.
8. Whether or not the crime was committed in contempt of or with insult to the public authorities.
The trial court held that the shooting to death of Francis had been done "in contempt of or with insult
to the public authorities:
"Under Republic Act 1978, as amended, a teacher of a public or private school
is considered a person in authority. The fact that Mr. Damaso Pasilbas, the
teacher in mathematics, was already checking the attendance did not deter the
accused from pursuing his evil act. The accused ignored his teacher's presence
and pleas. Not yet satisfied with the crime and terror he had done to Francis
and the entire school, the accused entered the faculty room and held hostage
the teachers and students who were inside that room. To the court, this act of
the accused was an insult to his teachers and to the school, an act of callus
disregard of other's feelings and safety and completely reprehensible." 30
We believe the trial court erred in so finding the presence of a generic aggravating circumstance.
Article 152 of the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential
Decree No. 299, provides as follows: cdphil
"Art. 152. Persons in authority and agents of persons in authority. Who shall
be deemed as such. In applying the provisions of the preceding and other
articles of this Code, any person directly vested with jurisdiction, whether as
an individual or as a member of some court or government corporation, board,
or commission, shall be deemed a person in authority. A barrio captain and a
barangay chairman shall also be deemed a person in authority.
A person who by direct provision of law or by election or by appointment by
competent authority, is charged with the maintenance of public order and the
protection and security of life and property, such as a barrio councilman, barrio
policeman and barangay leader and any person who comes to the aid of
persons in authority, shall be deemed an agent of a person in authority.
In applying the provisions of Articles 148 and 151 of this Code, teachers,
professors and persons charged with the supervision of public or duly
recognized private schools, colleges and universities, and lawyers in the actual
performance of their professional duties or on the occasion of such
performance, shall be deemed persons in authority. (As amended by P.D. No.
299, September 19,1973 and Batas Pambansa Blg. 873, June 12,1985)."

41

Careful reading of the last paragraph of Article 152 will show that while a teacher or professor
of a public or recognized private school is deemed to be a "person in authority," such teacher or
professor is so deemed only for purposes of application of Articles 148 (direct assault upon a
person in authority), and 151 (resistance and disobedience to a person in authority or the agents
of such person) of the Revised Penal Code. In marked contrast, the first paragraph of Article 152
does not identify specific articles of the Revised Penal Code for the application of which any
person "directly vested with jurisdiction, etc." is deemed "a person in authority." Because a
penal statute is not to be given a longer reach and broader scope than is called for by the
ordinary meaning of the ordinary words used by such statute, to the disadvantage of an accused,
we do not believe that a teacher or professor of a public or recognized private school may be
regarded as a "public authority" within the meaning of paragraph 2 of Article 14 of the Revised
Penal Code, 31 the provision the trial court applied in the case at bar.
ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the
following manner and to the following extent only:
1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion
perpetua;
2. In Criminal Case No. 4012 (a) the aggravating circumstances of evident
premeditation and of having acted with contempt of or insult to the public authorities
shall be DELETED and not taken into account; and (b) the special aggravating
circumstances of acting while under the influence of dangerous drugs and with the use of
an unlicensed firearm shall similarly be DELETED and not taken into account. There
being no generic aggravating nor mitigating circumstances present, the appellant shall
suffer the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in accordance with the
provisions of Article 70 of the Revised Penal Code. As so modified, the decision of the trial court is
hereby AFFIRMED. Costs against appellant.

The Solicitor General for plaintiff-appellee.

Donatilo C. Macamay for accused-appellant.

SYNOPSIS
Accused-appellant Erlindo Talo was convicted of forcible abduction with rape and sentenced to
death. In his appeal, Talo argued that: 1) he and complainant had a "previous understanding" and that
their sexual intercourse was consensual; 2) complainant's failure to file the criminal complaint
rendered her claim of abduction with rape suspect; and 3) he was in the house of a certain Otelo
Londera when the incident happened.
Apart from his bare assertion that he and complainant were lovers, accused-appellant had shown no
other evidence of such relationship, such as love letters or other tokens of endearment. The findings
of the medical examination taken a day after the incident confirmed complainant's claim that she had
been forced to have sexual intercourse by accused-appellant. Abrasions on her neck and right thigh as
well as hematomas on her chest were found, in addition to the complete perforation of her hymen.
Talo's second contention has no merit either. The complaint was filed three weeks after the incident.
The delay was due to the fact that accused-appellant's identity was ascertained only weeks later when
complainant came face to face with Talo and learned his name. Finally, accused's alibi cannot prevail
over complainant's positive testimony which was corroborated by a certain Grace Endab.
However, to justify the imposition of the death penalty in this case, the use of the deadly weapon
(which was allegedly resorted to by accused-appellant) should be alleged in the information with
respect to both the forcible abduction and rape or even to the rape alone. Since this qualifying
circumstance was alleged only with respect to the commission of the forcible abduction, it cannot be
taken to qualify the crime of rape.

SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.
||| (People v. Tac-an y Hipos, G.R. Nos. 76338-39, [February 26, 1990], 261 PHIL 728-755)

EN BANC
[G.R. No. 125542. October 25, 2000.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDO
TALO, accused-appellant.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; AFFIRMATIVE DEFENSE OF SWEETHEART THEORY,
UNSUBSTANTIATED BY CONVINCING EVIDENCE, CANNOT PREVAIL OVER
COMPLAINANT'S ASSERTION OF RAPE; CASE AT BAR. Accused-appellant contends that be
and complainant had a "previous understanding" and that their sexual intercourse was consensual.
Apart from his bare assertion that he and complainant were lovers, accused-appellant has shown no
other evidence of such relationship, such as love letters, photographs, or other tokens of endearment.
On the contrary, complainant stoutly maintained that she had never known accused-appellant before
and that the latter, at knife point, forced her to go with him and molested her in a ricefield.
2. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI; TO PROSPER, IMPOSSIBILITY OF
PHYSICAL PRESENCE AT THE CRIME SCENE MUST BE ESTABLISHED. For the defense
of alibi to prosper, it must be shown not only that accused-appellant was somewhere else at the time
the crime was committed but also that it was physically impossible for him to have been at the scene
of the crime at the time it was committed.

42

3. ID.; ID.; ID.; CONDUCT OF A WOMAN AFTER ALLEGED SEXUAL ASSAULT,

SIGNIFICANT IN ESTABLISHING TRUTH OR FALSITY OF CLAIM. Complainant's conduct
after she had been abused negates any probability that she and accused-appellant had consented
sexual intercourse. After accused-appellant had finished ravishing her, she ran away naked. She fled
to the house of her uncle to whom she reported what had happened to her. This is not the natural
reaction of one who had engaged in consensual sex. It has been observed that the conduct of a
woman following the alleged assault is of utmost importance as it tends to establish the truth or
falsity of her claim.
4. ID.; ID.; ID.; DELAY IN REPORTING CRIME, WHEN JUSTIFIED, DOES NOT RENDER THE
CLAIM DUBIOUS. Accused-appellant contends that complainant's failure to file the criminal
complaint renders her claim of abduction with rape suspect. This contention has no merit, either.
Complainant filed this case less than three weeks after the incident. The delay was due to the fact that
accused-appellant's identity was not ascertained until June 3, 1995 when complainant came face to
face with accused-appellant and learned that his name was Erlindo Talo.
5. CRIMINAL LAW; COMPLEX CRIMES; FORCIBLE ABDUCTION WITH RAPE; ELEMENTS;
CASE AT BAR. The trial court correctly found accused-appellant guilty of the complex crime of
forcible abduction with rape. As provided in Arts. 342 and 335, in relation to Art. 48, of the Revised
Penal Code, the elements of this crime are: (1) that the person abducted is any woman, regardless of
her age, civil status or reputation; (2) that she is taken against her will; (3) that the abduction is with
lewd design; and (4) that the abducted woman is raped under any of the circumstance provided in Art.
335. The evidence shows that, at knifepoint, accused-appellant forcibly took complainant from her
parents' house and, in a ricefield about 800 meters away, forced her to have sexual intercourse with
him.
6. ID.; ID.; ID.; ID.; IRRESISTIBLE FORCE, NOT NECESSARY WHEN INTIMIDATION IS
ESTABLISHED. It is settled that a rape victim is not required to resist her attacker unto death.
Force, as an element of rape, need not be irresistible; it need only be present, and so long as it brings
about the desired result, all considerations of whether it was more or less irresistible is beside the
point. Physical resistance need not be established in rape when, as in this case, intimidation was
exercised upon the victim and she submitted to the rapist's lust because of fear for her life or for her
personal safety.
7. ID.; ID.; ID.; PENALTY; BASED ON THE MOST SERIOUS CRIME, TO BE APPLIED IN ITS
MAXIMUM PERIOD. In the event of conviction in cases of complex crimes, the penalty for the
most serious crime should be imposed, the same to be applied in its maximum period. Forcible
abduction is punishable by reclusion temporal, while rape is punishable by reclusion perpetua, unless
it is committed with the use of deadly weapon, in which case the penalty is reclusion perpetua to
death.
8. ID.; QUALIFYING CIRCUMSTANCE; USE OF DEADLY WEAPON; MUST BE PROPERLY
ALLEGED, OTHERWISE, TREATED ONLY AS A GENERIC AGGRAVATING
CIRCUMSTANCE. The use of deadly weapon, being a qualifying circumstance, must be alleged
in the information, otherwise it should be treated only as a generic aggravating circumstance and the
lower penalty (reclusion perpetua) should be imposed.
9. ID.; ID.; ID.; ID.; CASE AT BAR. The information alleged that "armed with a bolo and hunting
knife, and by means of force, violence, intimidation and threats," accused-appellant, "did then and

there . . . with lewd and unchaste designs . . . take and carry away complainant" and that, "upon
reaching the ricefield, by means of force, violence, intimidation and threats," he had carnal
knowledge of her. The allegation of the use of deadly weapon thus refers not to the rape but to the
crime of forcible abduction. To justify the imposition of the death penalty in this case, the use of
deadly weapon should be alleged with respect to the rape or with respect to both the forcible
abduction and rape. Since, in this case, this qualifying circumstance was alleged only with respect to
the commission of the forcible abduction, it cannot be taken to qualify the crime of rape.
10. ID.; AGGRAVATING CIRCUMSTANCE; DWELLING; CORRECTLY APPRECIATED WHEN
VICTIM WAS TAKEN FROM PARENTS' HOUSE. Dwelling was correctly taken into account as
an aggravating circumstance as the evidence shows that complainant was forcibly taken from the
house of her parents.
11. ID.; ID.; NIGHTTIME; APPRECIATED WHEN SOUGHT TO FACILITATE COMMISSION
OF CRIME. The aggravating circumstance of nighttime was also correctly held to be present.
Accused-appellant sought the cover of darkness to facilitate the commission of the crime.
12. ID.; ID.; UNLAWFUL ENTRY; ENTRY THROUGH AN OPENING NOT INTENDED FOR
THAT PURPOSE; CASE AT BAR. The crime was likewise attended by the aggravating
circumstance of unlawful entry. The barangay chairman of Gata Daku, Joven Japay, testified that
when he went to the house of the victim the day after the rape incident, he noticed that a baluster in
the ceiling at the rear part of the house had been forcibly removed and that there was a ladder
propped nearby. There was thus entry to complainant's house through an opening which was one not
intended for that purpose. AHCcET
13. ID.; FORCIBLE ABDUCTION WITH RAPE; CIVIL LIABILITY ARISING THEREFROM.
The damages awarded by the trial court should be modified. In accordance with recent rulings of this
Court, complainant Doris Saguindang must be paid P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and the additional amount of P25,000.00, as exemplary damages, in view of the
attendance of the aggravating circumstances, pursuant to Art. 2229 of the Civil Code.

DECISION

MENDOZA, J p:
This case is here on appeal from the decision 1 of the Regional Trial Court, Branch 15, Ozamis City,
finding accused-appellant Erlindo Talo guilty of forcible abduction with rape and sentencing him to
death and to pay complainant Doris Saguindang the amount of P30,000.00 as moral damages and the
costs of the suit. CAHaST
The information against accused-appellant recited
That on or about the 12th day of May, 1995, at about 2:00 o'clock dawn, in
barangay Gata Daku, municipality of Clarin, province of Misamis Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the said

43

accused ERLINDO TALO, entered the dwelling by destroying some portion of

the toilet of the offended party, armed with a bolo and hunting knife, and by
means of force, violence, intimidation and threats, did then and there, with
lewd and unchaste designs, willfully, unlawfully and feloniously, take and
carry away MISS DORIS SAGUINDANG against her will from the house of
her parents, and upon reaching the ricefield, by means of force, violence,
intimidation and threats, did then and there willfully, unlawfully and
feloniously had carnal knowledge of her against her will. 2

The evidence presented by the prosecution shows the following:

At around 9 o'clock in the evening of May 11, 1995, complainant Doris Saguindang retired for the
night in her family's house in Gata Daku, Clarin, Misamis Occidental. At about 2 o'clock in the
morning of the following day, she was awakened by the presence of an intruder in her room, who
identified himself as a rebel and claimed that his "commander" wanted to see complainant. The man
poked a knife at her and covered her mouth to prevent her from making an outcry. He was wearing
briefs, her father's overseas cap, and her sister's shirt. Complainant was led out of the house through
the back door. Outside, the man twice called out, "Commander, we are here," but no one responded.
The man dragged Doris towards the ricefield about 800 meters from their house and there, at knife
point, forced Doris to have sexual intercourse with him. Doris tried to fight back but the man was too
strong for her. Doris noticed that, aside from a knife, the man had a bolo with him. 3
As the man rolled to his side after consummating the sexual act, Doris immediately picked her
clothes and ran naked as fast as she could towards the nearby house of her uncle, Margarito
Saguindang, who later brought her home. Complainant was then accompanied by her parents to the
Philippine National Police (PNP) station where she reported the incident. Complainant described to
SPO2 Jesus Macala her attacker. Seven suspects were presented to her but none was her assailant. For
this reason, the incident was entered in the police blotter of the PNP, but no complaint was filed in
court. 4
Complainant and her mother also sought the help of their pastor, Ponciano Ayop, Sr., who arranged
for the medical examination of complainant by Dr. Daniel Medina, municipal health officer of Clarin.
5 Dr. Medina conducted the examination at around 2 o'clock that afternoon and later issued the
following report:
PHYSICAL FINDINGS:
Vagina slightly hyperemic with whitish muco[u]s fluid at base of the
vagina[.] [N]o more hymen found at the vagina.
3 cm. l[i]near abrasion at the right lower thigh 2 in numbers.
2 cm. hematoma at right postero lateral aspect of the chest posterior axillary
line level 5th rib.
1.5 cm. hematoma at left posterior chest at med scapular line level 6th rib.
1 cm curve l[i]n[e]ar abrasion at right neck above scapula.

xxx xxx xxx

Conclusions:
1). The above described physical injuries are found in the body of the subject,
the age of which is compatible to the alleged date of infliction.
xxx xxx xxx
Remarks:
5 slides negative for sperm determination . . . 6
Dr. Medina testified that the perforation of complainant's hymen could have been caused by sexual
intercourse. As for the mucous found in her genitalia, he said that although it did not contain any
spermatozoa, it was a sign of recent sexual contact. He stated that the absence of sperm in
complainant's genitalia could be due to the fact that she took a bath after the incident. 7
With regard to his external examination of complainant, Dr. Medina said that the injury in her neck
was caused by a fingernail and is consistent with complainant's claim that she was choked. The
abrasion on her right thigh, on the other hand, was caused by a rough but not hard object, while the
hematomas on it and on her chest were caused by a hard object. 8
On cross-examination, Dr. Medina admitted that, although forcible sexual intercourse could produce
lacerations in the vaginal orifice, he did not find any in complainant. With regard to the perforation of
complainant's hymen, he stated that the same could be caused by other factors such as riding a
bicycle, horse, or carabao, and that the perforation could have occurred earlier than May 12, 1995. 9
Pastor Ayop and his family took complainant to Bukidnon for a vacation because she was having
nightmares, coming back to Clarin after three weeks, in May 1995. 10
Then, at around seven o'clock in the morning of May 27, 1995, while Doris and her friends were
walking along the road in Tinaclaan, a neighboring barangay of Gata Daku, she saw accusedappellant in a nearby ricefield, distributing seedlings to farm workers. Because accused-appellant was
not facing her, complainant could not clearly make out his features but she could see that his body
build resembled that of her attacker. She asked one of her companions, a certain Enan Undag,
accused-appellant's name. 11
A week later, on June 3, 1995, at around 5 o'clock in the afternoon, while complainant and a friend,
Grace Endab, were walking along the road in Tinangay Sur, she again saw accused-appellant coming
from the opposite direction. When accused-appellant saw them, he hurriedly walked past them.
Doris, thoroughly shaken, told Endab, who knew of the rape, that the man they had just encountered
was the one who raped her. The latter corroborated complainant on this matter. 12
After consulting Ayop and her parents, Doris, on the following Monday, June 5, 1995, filed a
complaint for rape against accused-appellant. 13 She later amended her complaint to charge accusedappellant with forcible abduction with rape. aDIHTE
Doris positively identified accused-appellant in court as the man who, on May 12, 1995, abducted
and later raped her. She said she saw his face when she was awakened in her room and in the ricefield
where the moon was bright. 14

44

Upon cross-examination by the defense, complainant stated that, although she was born in Gata
Daku, she did not know everybody in the barangay since she stayed in Iligan City for three years to
study. Before May 12, 1995, she admitted she had seen accused-appellant once but she did not know
his name. She added that when she was in high school in Clarin, she had heard of a peeping tom
named Erlindo Talo. 15

Saguindang where he and SPO2 Macala questioned complainant. She allegedly described her
attacker to be around 30 years old, curly haired, bearded, and with a big body build. On the basis of
this alleged description, they did not include accused-appellant among the possible suspects because,
although the latter matches Doris' description as to body size and height, he is not curly haired nor
bearded. 23

Accused-appellant, 50, denied the charge against him. He testified that he was a resident of Barangay
Gata Daku and that he managed a farm in the neighboring barangay Tinaclaan. He further stated that
until he met complainant in court, he had never known her. 16

The prosecution recalled complainant to rebut Japay's testimony. She denied having told Japay that
her attacker was curly haired (kulot) because what she said was that his hair was close-cropped or
kopkop. She also denied having said that her attacker was bearded, because although she used the
local term bangason, which, loosely translated, means bearded, what she really meant was that the
man had newly-grown facial hair. 24

As to his whereabouts at the time of the incident, accused-appellant said that at 9 o'clock in the
evening of May 11, 1995, he was in the house of Otelo Londera in Barangay Kinangay Sur, playing
mahjong. Aside from Londera, the other mahjong players were Laureano Basaya and Buena Narbay.
He said that except for a few breaks, they played mahjong until 5 o'clock in the morning of May 12,
1995. An hour later, accused-appellant allegedly went home to Barangay Gata Daku. Afterwards, at
around 9:30 in the morning, he went to Barangay Tinaclaan, to the house of Leonardo Fuentes, whose
son, Celso, wanted him to procure a piglet. It was there that he allegedly heard that someone had
been raped in Gata Daku. 17
Although he had a farm in Barangay Tinaclaan, accused-appellant denied that he went there at 7
o'clock in the morning of May 27, 1995, when complainant said she saw him. Accused-appellant said
that at that time, he was in Barangay Kinangay Sur with Celso Fuentes buying a piglet because the
latter's son was celebrating his birthday. Accused-appellant said he went to his farm in Tinaclaan only
at around 11 o'clock to pay his workers. 18
Accused-appellant likewise denied that he was in Kinangay Sur at around 5 o'clock in the afternoon
of June 3, 1995, because at that time he was allegedly in his farm in Barangay Tinaclaan gathering
shells, locally called kuhol. 19
On cross-examination, accused-appellant said that Londera's house, where he was allegedly playing
mahjong in the morning of May 12, 1995, is about 500 meters from Gata Daku. He admitted he used
to deliver rice to complainant's house. 20
Corroborating accused-appellant's alibi were his three alleged mahjong playmates, Otelo Londera,
Buena Narbay, and Laureano Basaya. Londera stated that the distance between his house and
Barangay Gata Daku could be negotiated in 10 minutes by foot. Narbay, for her part, said she cannot
remember whether she played mahjong in Londera's house on the dates in question. 21
Other witnesses were presented by the defense, namely, Celso Fuentes, Angel Saldana, and Flaviano
Narbay, who corroborated accused-appellant's testimony that he was not in his farm in Barangay
Tinaclaan at 7 o'clock in the morning of May 27, 1995. On cross-examination, Narbay, who had
testified that he was in accused-appellant's farm on the date and time in question and that the
accused-appellant did not arrive therein until about 11 o'clock, admitted that he did not know the year
when the events he testified to took place and that the date May 27 was only supplied to him by the
defense counsel. 22
The defense likewise presented the then incumbent barangay chairman of Gata Daku, Joven Japay.
He said that at around 4:00 in the morning of May 12, 1995, Cesar and Margarito Saguindang,
complainant's father and uncle respectively, went to his house to report that complainant had been
raped at around 2 o'clock that morning. Thereafter, the three of them went to the house of Cesar

The prosecution also presented two other witnesses to refute accused-appellant's testimony that he
had never been to complainant's house and that there was an all-night mahjong session on May 11,
1995 in the house of Otelo Londera in Kinangay Sur.

Cesar Saguindang, father of complainant, testified that for three years, accused-appellant regularly
delivered rice to their house in Gata Daku. 25 On the other hand, Antonina Mutia, whose house in
Barangay Kinangay Sur is about 200 meters from that of Otelo Londera, testified that at around 10
o'clock in the evening of May 11, 1995, she passed by the Londera residence on her way home from
Barangay Tinaclaan. She noticed that the house was very quiet and, although the adjoining nipa hut
where the mahjong sessions were usually played was lighted, there was no mahjong game being
played therein. Before 11 o'clock that night, she again passed by Londera's house on her way back to
Barangay Tinaclaan to look for her husband who had gone there for the barangay fiesta. She again
noticed that Londera's house was quiet. 26
As sur-rebuttal to Mutia's testimony, the defense presented Catalina Londera, wife of Otelo Londera,
who said that at around 8 o'clock in the evening of May 11, 1995, she met Mutia and her husband in
the house of a certain Tagaloguin in Barangay Tinaclaan. The three allegedly went back to Barangay
Kinangay Sur on board the Mutia spouses' truck. After arriving home at around 9 o'clock, her
husband, Laureano Basaya, Buena Narbay, and accused-appellant allegedly started playing mahjong.
27
The case was thereafter submitted for decision. On April 26, 1996, the trial court rendered its
decision, finding accused-appellant guilty of forcible abduction with rape. The dispositive portion of
its decision reads:
WHEREFORE, this Court renders judgment finding accused guilty beyond
reasonable doubt of forcible abduction with rape aggravated by dwelling and
nocturnity and qualified by use of a deadly weapon, sentencing him to DEATH
and ordering him to indemnify the complainant P30,000.00 as moral damages.
With cost. 28
Hence this appeal.
First. Accused-appellant contends that he and complainant had a "previous understanding" and that
their sexual intercourse was consensual. This allegedly explains why (1) there was no commotion
when he and complainant went out of the latter's house as shown by the fact that not a member of the

45

household was awakened when he dragged her out of her parent's house; and (2) when he removed
her pajamas and underwear, or when he undressed, she did not push him which would then have
allegedly allowed her to escape. 29

A So that I could not shout.

This contention has no merit. CSTDIE

A I was trying to shout but no voice will come out.

Accused-appellant never claimed that he and complainant had any relationship. In fact, he claimed he
had never met her before. Thus accused appellant testified:

Q So, what happened afterwards?

Q Do you know the private offended party of this case, Doris Saguindang?
A I don't know her, sir, I have never met her, only here in Court.

Q Why, did you try to shout for help?

A He forced me to go outside.
Q How did he force you to go outside?
A He covered my mouth and the other hand has knife pointing near my chest.

Q Do you still remember that time when did you first see or meet her in Court?
A The fourth time I attended the hearing, sir.
xxx xxx xxx

xxx xxx xxx

Q Despite of the fact that you were led by that man outside you did not resist
or make any noise in order your parents to be awaken?

Q . . . [D]o you know the residence of the parents of Doris Saguindang?

A I tried my best but he was so strong.

A I don't know, sir.

Q. You mean he has big muscles?

Q You have not gone there ever since?

A. Yes, sir. Strong arms. 31

A Never, sir. 30
Indeed, apart from his bare assertion that he and complainant were lovers, accused-appellant has
shown no other evidence of such relationship, such as love letters, photographs, or other tokens of
endearment. On the contrary, complainant stoutly maintained that she had never known accusedappellant before and that the latter, at knife point, forced her to go with him and molested her in a
ricefield. Complainant's testimony must be quoted to appreciate her claim:
Q Now, as you were awaken[ed] . . . by the accused, what happened?
A He choked me up.

Accused-appellant makes much of the fact that he was able to take complainant out of her parent's
house without rousing the household from their sleep. That was because complainant was alone in
her room far from where the other members of her family were sleeping. Her parents, her twin
siblings, and her nephew were the other people in the house when accused-appellant broke in and
abducted complainant. Her parents slept in a separate room furthest from her room and, while her
twin siblings and nephew slept in the room adjoining hers, their rooms were separated by a concrete
wall with an opening near the roof. Accused-appellant prevented complainant from making an outcry
by covering her mouth and poking a knife at her. She was resisting but she was overpowered. After
all, what could an 19-year old girl do to resist a 50-year old man? As complainant testified:

Q What did he say?

Q By that time when you were led to that dry ricefield he was no longer
dragging you, am I correct?

A He ordered me to stand up because he has some questions to ask.

A Still he drag me and he was holding me.

Q Now, what was your reaction?

Q He was holding both of your hands?

A I was nervous and shocked.

A He was walking ahead of me and kept on pulling me.

xxx xxx xxx

(Witness keep on crying since the beginning of her testimony)

Q Now, after the accused woke you up, choked you and commanded you to
stand up, what happened?

Q If you have resisted at that time when you were brought to the dry land or
ricefield you could have escape him away from the hold of that man?

A He covered my mouth.

A How can I escape from him he was holding me so tightly. It was so painful
as if my arm will be broken.

Q Why did he cover your mouth?

Q But he did not twist your arms?

46

A I could not remember but that my shoulder was sprained.

xxx xxx xxx

Q Did he remove your clothes when you were standing up or when you were
already pushed down?

PROS. MEDINA:

A While I was still standing up, he removed my pants, when I was lying,
down, he removed my blouse.

Q Now, when you reached to that ricefield which was harvested together with
the accused Erlindo Talo, forcing you to go there, threatening you,
pointing a knife, did you try to escape?

Q All the while, when he was removing your pants, panty and blouse, what did
you do?
A I slapped him.

A Yes, sir.

Q You mean to say, you fought him?

Q How did you do it?

(While answering, witness was crying.)
A I was trying to fight but he was very strong.
xxx xxx xxx
Q Upon reaching that place, what happened, upon reaching there, did you try
to stop him?

A Yes, sir.
Q Now, when he successfully removed all your clothes and you were already
down, what did he do next?
A He lowered his brief.
Q And what did he do to you?
A Then, he raped me.

A Yes, sir.

xxx xxx xxx

Q How did you do it?

(Witness burst into tears continuously)
A I kicked him because he was trying to remove my pajama.

Q You mean to say, he placed his penis inside your vagina?

A Yes, sir.
Q Did his penis penetrate your vagina?

Q And what happened?

A He successfully removed my pajama.

A Yes, sir.
Q You mean to say, his penis stayed inside your vagina?

Q How about your panty?

A Yes, sir.

A Including my panty.

xxx xxx xxx

Q How about your blouse?

A After removing my panty, he was also removing my blouse.

Q At that time, did you fight him?

A Yes sir.

Q What did you do?

A I was trying to grapple the knife because he kept on threatening to stop me.

Q How did you fight him?

A I kicked him.

Q Afterwards, what happened?

xxx xxx xxx
A He pushed me to lie down on the ground.

Q When you kicked him, what did he do?

A Again, he attempted to stop me. 32
It is settled that a rape victim is not required to resist her attacker unto death. 33 Force, as an element
of rape, need not be irresistible, it need only be present, and so long as it brings about the desired

47

result, all considerations of whether it was more or less irresistible is beside the point. 34 Indeed,
physical resistance need not be established in rape when, as in this case, intimidation was exercised
upon the victim and she submitted to the rapist's lust because of fear for her life or for her personal
safety. 35
The findings of the medical examination conducted by Dr. Medina a day after the incident confirm
complainant's claim that she had been forced to have sexual intercourse by accused-appellant. Dr.
Medina found abrasions on her neck and right thigh as well as hematomas on her chest, in addition to
the complete perforation of her hymen. These clearly establish that accused-appellant employed force
and intimidation to make complainant submit to him. THESAD
Finally, complainant's conduct after she had been abused negates any probability that she and
accused-appellant had consented sexual intercourse. After accused-appellant had finished ravishing
her, she ran away naked. She fled to the house of her uncle to whom she reported what had happened
to her. This is not the natural reaction of one who had engaged in consensual sex. It has been
observed that the conduct of a woman following the alleged assault is of utmost importance as it
tends to establish the truth or falsity of her claim. 36
Second. In a complete turnabout from his theory that he and complainant were lovers, accusedappellant contends that complainant's failure to file the criminal complaint renders her claim of
abduction with rape suspect. 37
This contention has no merit, either. Complainant filed this case less than three weeks after the
incident. The delay was due to the fact that accused-appellant's identity was not ascertained until June
3, 1995 when complainant came face to face with accused-appellant and learned that his name was
Erlindo Talo. caTESD

Q Miss Doris Saguindang, the Barangay Captain of Gata Daku, Joven Japay,
have testified before this Honorable Court that you specifically
described to him the person responsible [for] raping you in the dawn
of May 12, 1995, and he said you specifically described . . . him to
be curly hair[ed], and that his face was full of beard, what can you
say to that statement?
A That's not true.
Q Why do you say that's [a] lie?
A Because what I told . . . the Barangay Captain is that, the hair of the rapist is
short to the scalp. In fact, the Barangay Captain asked, was it curly
hair, I said "no," his hair is short and his head is somewhat bald
because at that time he was wearing my father's hat.
Q What about the beard?
A I did not say beard. I did not mention that the face of the man is full of beard
because when we say "bangason" or bearded he has full of beard.
What I told . . . the Barangay Captain [was] that he has a beard
because I have touched the face of the man, not exactly that he was
bearded. DCISAE
Q Did you mention to the Barrio Captain that the person responsible in raping
you that you were able to touch his face, his mustach[e]?
A I did not tell him that he has mustach[e], I only told him a few beard newly
grown in his face.

While it is true that Cesar Saguindang, complainant's father, testified that accused-appellant had been
delivering rice to their house for a period of three years, there is no evidence to show that
complainant knew accused-appellant. Accused-appellant himself testified that he stayed in Cebu City
for sometime to study college, went back to Gata Daku, Clarin, Misamis Occidental in 1982, and
decided to work on the farm. It was probably then that he delivered rice for the barangay captain of
Gata Daku, Japay. At that time, complainant was only eight years old. Furthermore, complainant
studied at the Clarin National High School in the poblacion of Clarin and went to Iligan City for her
college education. It is probable, therefore, she really did not know accused-appellant. CIaDTE
Moreover, the delay in the identification of accused-appellant was due mainly to the failure of the
Gata Daku police, specifically of SPO2 Jesus Macala, to include accused-appellant in the lineup of
suspects presented to complainant on May 12, 1995. Macala admitted that complainant's description
of her attacker in fact matched that of accused-appellant, but he did not include the latter in the lineup
because he thought that accused-appellant, whom he admitted was a childhood friend, was innocent.
38
Accused-appellant points out the alleged inconsistencies in the testimony of complainant as to his
age, type of hair, and whether he is bearded or not. As complainant explained, however, she did not
really say that accused-appellant was curly haired or that he had a beard. She testified:

Q Did you also mention . . . the age . . . of the person responsible in raping
you?
A No, sir. I did not mention to him the age, what I described to him only that
the man was similar to the age of my father. 39
We find complainant's testimony to be credible. As earlier stated, her story is corroborated by the
findings of the medical examination. On the other hand, the defense has not shown any ill motive on
the part of complainant to falsely implicate accused-appellant in a very serious charge. As we have
said in a number of cases, no woman would concoct a story of defloration, allow an examination of
her private parts and expose herself to the stigma and humiliation of a public trial if she is not
motivated by a desire to seek justice against the one who had defiled her. 40 TESDcA
Third. Accused-appellant's defense is that on May 12, 1995, he was in the house of Otelo Londera in
Barangay Kinangay Sur. However, Londera himself said that Barangay Gata Daku could be reached
in 10 minutes by foot from his house. For the defense of alibi to prosper, it must be shown not only
that accused-appellant was somewhere else at the time the crime was committed but also that it was
physically impossible for him to have been at the scene of the crime at the time it was committed. 41
The same is true with regard to accused-appellant's claim that on May 27, 1995 and June 3, 1995,
when complainant said she saw him after the incident, he was in some other place and could not

48

possibly have been seen by her. Defense witness Narbay, who was supposed to corroborate accusedappellant's testimony that he was not in his farm in Barangay Tinaclaan at around 7 o'clock in the
morning of May 27, 1995, admitted on cross-examination that he did not know the year when the
events he testified to took place and that the date May 27 was just given to him by the counsel for the
defense. On the other hand, accused-appellant's testimony that he was in his farm in Barangay
Tinaclaan and not in Barangay Kinangay Sur at about 5 o'clock in the afternoon of June 3, 1995 is not
only uncorroborated but also self-serving. It cannot prevail over the testimony of complainant which
was corroborated by Grace Endab.
Fourth. The trial court correctly found accused-appellant guilty of the complex crime of forcible
abduction with rape. As provided in Arts. 342 and 335, in relation to Art. 48, of the Revised Penal
Code, the elements of this crime are: (1) that the person abducted is any woman, regardless of her
age, civil status or reputation; (2) that she is taken against her will; (3) that the abduction is with lewd
design; and (4) that the abducted woman is raped under any of the circumstance provided in Art. 335.
42 The evidence shows that, at knifepoint, accused-appellant forcibly took complainant from her
parents' house and, in a ricefield about 800 meters away, forced her to have sexual intercourse with
him.
In the event of conviction in cases of complex crimes, the penalty for the most serious crime should
be imposed, the same to be applied in its maximum period. 43 Forcible abduction is punishable by
reclusion temporal, 44 while rape is punishable by reclusion perpetua, unless it is committed with the
use of deadly weapon, in which case the penalty is reclusion perpetua to death. 45 Thus, in this case,
it is the penalty for rape which should be imposed, the same to be applied in its maximum period.
However, the use of deadly weapon, being a qualifying circumstance, must be alleged in the
information otherwise it should be treated only as a generic aggravating circumstance and the lower
penalty (reclusion perpetua) should be imposed. 46
In the case at bar, the information alleged that "armed with a bolo and hunting knife, and by means of
force, violence, intimidation and threats," accused-appellant, "did then and there . . . with lewd and
unchaste designs . . . take and carry away complainant" and that, upon reaching the ricefield, by
means of force, violence, intimidation and threats," he had carnal knowledge of her. The allegation of
the use of deadly weapon thus refers not to the rape but to the crime of forcible abduction. We have
affirmed convictions for forcible abduction with rape qualified by the use of deadly weapon in cases
where the use of deadly weapon was alleged in the information with respect to the crime of forcible
abduction, 47 or with respect to the complex crime of forcible abduction and rape, 48 or to the
portion referring to the crime of rape. 49 Accordingly, to justify the imposition of the death penalty in
this case, the use of deadly weapon should be alleged with respect to the rape or with respect to both
the forcible abduction and rape. Since, in this case, this qualifying circumstance was alleged only
with respect to the commission of the forcible abduction, it cannot be taken to qualify the crime of
rape. The use of a deadly weapon can be appreciated only as a generic aggravating circumstance.
DAEaTS
The trial court correctly appreciated other generic aggravating circumstances, namely, dwelling and
nighttime. Dwelling was correctly taken into account as an aggravating circumstance as the evidence
shows that complainant was forcibly taken from the house of her parents. Such was the ruling in
People v. Lacanieta, 50 where, similar to the case at bar, the complainant was forcibly taken from her
house, brought to a nearby barangay, and then raped by the accused.

The aggravating circumstance of nighttime was also correctly held to be present. Accused-appellant
sought the cover of darkness to facilitate the commission of the crime. In People v. Grefiel, 51 it was
held that forcible abduction with rape, committed at 2 o'clock in the morning, was attended by the
aggravating circumstance of nighttime.
The crime was likewise attended by the aggravating circumstance of unlawful entry. The barangay
chairman of Gata Daku, Joven Japay, testified that when he went to the house of the victim the day
after the rape incident, he noticed that a baluster in the ceiling at the rear part of the house had been
forcibly removed and that there was a ladder propped nearby. 52 There was thus entry to
complainant's house through an opening which was one not intended for that purpose.
The foregoing notwithstanding, the penalty to be imposed on accused-appellant is reclusion perpetua.
Under Art. 63, a single indivisible penalty should be imposed regardless of any mitigating or
aggravating circumstance which may have attended the commission of the deed.
The damages awarded by the trial court should be modified. In accordance with recent rulings of this
Court, 53 complainant Doris Saguindang must be paid P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and the additional amount of P25,000.00, as exemplary damages, in view of the
attendance of the aggravating circumstances, pursuant to Art. 2229 of the Civil Code. 54
WHEREFORE, the decision of the Regional Trial Court, Branch 15, Ozamis City, is AFFIRMED
with the MODIFICATION that accused-appellant's sentence is reduced to reclusion perpetua and he
is ordered to pay complainant Doris Saguindang the amounts of P50,000.00, as civil indemnity,
P50,000.00, as moral damages, and P25,000.00, as exemplary damages. TICAcD

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Panganiban, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., is on leave.
||| (People v. Talo, G.R. No. 125542, [October 25, 2000], 398 PHIL 187-210)

SECOND DIVISION
[G.R. No. 103119. October 21, 1992.]
SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS
AND PEOPLE OF THE PHILIPPINES, respondents.

49

Public Attorney's Office for petitioner.

SYLLABUS
1. CRIMINAL LAW; REVISED PENAL CODE; ARTICLE 4, PARAGRAPH 2 THEREOF AN
INNOVATION; PURPOSE; RATIONALE. Article 4, paragraph 2 is an innovation 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. This legal
doctrine left social interests entirely unprotected. The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 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. The rationale of Article 4(2) is to punish such
criminal tendencies.
2. ID.; ID.; ID.; LEGAL IMPOSSIBILITY; EXPLAINED; FACTUAL IMPOSSIBILITY;
EXPLAINED; CASE AT BAR. 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. 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. 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. 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. 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.
3. ID.; DIFFERENCE BETWEEN PHILIPPINE AND AMERICAN LAWS REGARDING
CONCEPT AND APPRECIATION OF IMPOSSIBLE CRIMES; CASE AT BAR. 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 them 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. . . To restate,
in the United States, where the offense sought to be committed is factually impossible of
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 nor 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 presents 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.

DECISION

CAMPOS, JR., J p:
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. prLL
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

50

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 of Appeals
affirmed in toto the trial court's decision. Hence this petition. prLL

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 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. 10

This petition questions the decision of the Regional Trial 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:

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 (1)
legal impossibility, or (2) physical impossibility of accomplishing the intended act 12 in order to
qualify the act as an impossible crime. LibLex

ARTICLE 4(2). Criminal Responsibility. Criminal responsibility shall be

incurred:

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
13 Thus:

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 co-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

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 has 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 a 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.

51

In the case of Stokes 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: LLphil
It was no fault of Stokes 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 them 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: LexLib
. . . 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 indicted for attempting to smuggle letters
into and out of prison. The law governing the matter made the act criminal if done without the
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 non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible of
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 nor 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 presents 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. prLL
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,

52

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, Jr., JJ ., concur.
Narvasa, C .J ., on official leave.
||| (Intod v. Court of Appeals, G.R. No. 103119, [October 21, 1992])

FIRST DIVISION
[G.R. No. 95322. March 1, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO
DOMASIAN AND DR. SAMSON TAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Silvestre L. Tagarao for appellant Pablito Domasian.

SYLLABUS
1. CRIMINAL LAW; KIDNAPPING AND SERIOUS ILLEGAL DETENTION; HOW CRIME IS
COMMITTED; CASE AT BAR. Contrary to Tan's submission, this crime may consist not only in
placing a person in an enclosure but also in detaining him or depriving him in any manner of his
liberty. In the case at bar, it is noted that although the victim was not confined in an enclosure, he was
deprived of his liberty when Domasian restrained him from going home and dragged him first into
the minibus that took them to the municipal building in Gumaca, thence to the market and then into
the tricycle bound for San Vicente.
2. ID.; ID.; DELIVERY OF RANSOM NOTE AFTER RESCUE OF VICTIM CANNOT BE
CONSIDERED AN IMPOSSIBLE CRIME, NEITHER DOES IT EXTINGUISH THE OFFENSE,
BUT IT WOULD HAVE HAD THE EFFECT OF INCREASING PENALTY TO DEATH WERE IT
NOT FOR THE NEW CONSTITUTION. Even before the ransom note was received, the crime of
kidnapping with serious illegal detention had already been committed. The act cannot be considered
an impossible crime because there was no inherent improbability of its accomplishment or the

employment of inadequate or ineffective means. The delivery of the ransom note after the rescue of
the victim did not extinguish the offense, which had already been consummated when Domasian
deprived Enrico of his liberty. The sending of the ransom note would have had the effect only of
increasing the penalty to death under the last paragraph of Article 267 although this too would not
have been possible under the new Constitution.
3. ID.; ID.; DEFENSE OF ALIBI VIS-A-VIS POSITIVE IDENTIFICATION BY PROSECUTION
WITNESSES AND POSSIBILITY OF HAVING WRITTEN RANSOM NOTE AT A TIME OTHER
THAN THE TIME OF COMMISSION OF KIDNAPPING. Domasian's alibi cannot stand against
his positive identification by Enrico, Grate and Ferreras, let alone the contradictions made by his
corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and the
manner of his payment for the refraction. Tan's alibi is not convincing either. The circumstance that
he may have been in Manila at the time of the incident does not prove that he could not have written
the ransom note except at that time.
4. ID.; ID.; CASE OF CESAR v. SANDIGANBAYAN, 134 SCRA 105, NOT APPLICABLE TO
CASE AT BAR. Cesar v. Sandiganbayan (134 SCRA 105), is not applicable because that case
involved a forgery or the deliberate imitation of another person's signature. In the case before us,
there was in fact an effort to disguise the ransom note writer's penmanship to prevent his discovery.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; AGAINST WHOSE ACTS IT MAY BE
INVOKED. We held in the case of People vs. Andre Marti, (193 SCRA 57) that the Bill of Rights
cannot be invoked against acts of private individuals, being directed only against the government and
its law-enforcement agencies as a limitation on official action.
6. REMEDIAL LAW; EVIDENCE; BASIC PRINCIPLE IN HANDWRITING IDENTIFICATION.
The trial court chose to believe the NBI expert because his examination and analysis "was more
comprehensive then the one conducted by the PC/INP handwriting expert, who virtually limited his
reliance on the perceived similarities and dissimilarities in the pattern and style of the writing,
thereby disregarding the basic principle in handwriting identification that it is not the form alone nor
anyone feature but rather a combination of all the qualities that identify."
7. ID.; ID.; PROBATIVE VALUE OF OPINION OF HANDWRITING EXPERT. We have held
that the value of the opinion of a handwriting expert depends not upon his mere statements of
whether a writing is genuine or false, but upon the assistance he may afford in pointing out
distinguishing marks, characteristics and discrepancies in and between genuine and false specimens
of writing which would ordinarily escape notice or detection from an unpracticed observer.
8. ID.; ID.; TEST OF GENUINENESS OF HANDWRITING. The test of genuineness ought to be
the resemblance, not the formation of letters in some other specimens but to the general character of
writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or
other permanent course, and is, therefore itself permanent.
9. ID.; CRIMINAL PROCEDURE; WEIGHT OF FINDING OF TRIAL JUDGE ON CREDIBILITY
OF WITNESSES. On the credibility of the witnesses. This is assessed in the first instance by the
trial judge, whose finding in this regard is received with much respect by the appellate court because
of his opportunity to directly observe the demeanor of the witnesses on the stand.

53

DECISION

CRUZ, J p:
The boy was detained for only about three hours and was released even before his parents received
the ransom note. But it spawned a protracted trial spanning all of 8 years and led to the conviction of
the two accused. 1
The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The
accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital
owned by Enrico's parents. They were represented by separate lawyers at the trial and filed separate
briefs in this appeal.
The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was
walking with a classmate along Roque street in the poblacion of Lopez, Quezon, he was approached
by a man who requested his assistance in getting his father's signature on a medical certificate. Enrico
agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the
man went into a building to get the certificate. Enrico became apprehensive and started to cry when,
instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him
firmly all the while. The man told him to stop crying or he would not be returned to his father. When
they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney driver and handed him an
envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for
San Vicente, with the man still firmly holding Enrico, who continued crying. This aroused the
suspicion of the driver, Alexander Grate, who asked the man about his relationship with the boy. The
man said he and the boy were brothers, making Grate doubly suspicious because of the physical
differences between the two and the wide gap between their ages. Grate immediately reported the
matter to two barangay tanods when his passengers alighted from the tricycle. Grate and the tanods
went after the two and saw the man dragging the boy. Noticing that they were being pursued, the man
told Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape,
leaving Enrico behind. Enrico was on his way home in a passenger jeep when he met his parents,
who were riding in the hospital ambulance and already looking for him. 2
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope
containing a ransom note. The note demanded P1 million for the release of Enrico and warned that
otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After
comparing it with some records in the hospital, he gave the note to the police, which referred it to the
NBI for examination. 3
The test showed that it had been written by Dr. Samson Tan. 4 On the other hand, Enrico was shown
a folder of pictures in the police station so he could identify the man who had detained him, and he
pointed to the picture of Pablito Domasian. 5 Domasian and Tan were subsequently charged with the
crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6
The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident
he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife
for the refraction of his eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8

After trial, Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to
suffer the penalty of reclusion perpetua and all accessory penalties. They were also required to pay
P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their denial of any participation in the incident
in question. They belittle the credibility of the prosecution witnesses and submit that their own
witnesses are more believable. Tan specifically challenges the findings of the NBI and offers anew
the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He
maintains that in any case, the crime alleged is not kidnapping with serious illegal detention as no
detention in an enclosure was involved. If at all, it should be denominated and punished only as grave
coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a conspiracy
between them to make them criminally liable in equal degree.
First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose
finding in this regard is received with much respect by the appellate court because of his opportunity
to directly observe the demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who
positively identified Domasian as the person who detained him for three hours. The trial court
observed that the boy was "straight-forward, natural and consistent" in the narration of his detention.
The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his
age, pointed to Domasian with equal certainty, as the man who approached Enrico when they were
walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected Enrico's
companion and later chased him, was also positive in identifying Domasian. All these three witnesses
did not know Domasian until that same morning and could have no ill motive in testifying against
him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be considered a
disinterested witness because she admitted she had known Domasian for 3 years.

The defense asks why Domasian openly took Enrico to several public places if the intention was to
kidnap and detain him. That is for Domasian himself to answer. We do not have to probe the reasons
for the irrational conduct of an accused. The more important question, as we see it, is why Domasian
detained Enrico in the first place after pretending he needed the boy's help. That is also for Domasian
to explain. As for Enrico's alleged willingness to go with Domasian, this was manifested only at the
beginning, when he believed the man sincerely needed his assistance. But he was soon disabused. His
initial confidence gave way to fear when Domasian, after taking him so far away from the hospital
where he was going, restrained and threatened him if he did not stop crying.
Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let
alone the contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time he
was in the optical clinic and the manner of his payment for the refraction. 9 Tan's alibi is not
convincing either. The circumstance that he may have been in Manila at the time of the incident does
not prove that he could not have written the ransom note except at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:
The handwriting of a person may be proved by any witness who believes it to
be the handwriting of such person and has seen the person write, or has seen
writing purporting to be his upon which the witness has acted or been charged

54

and has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the party
against whom the evidence is offered or proved to be genuine to the
satisfaction of the judge.
Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the
ransom note and the standard documents were written by one and the same person, and another from
the PC/INP 1 1 who expressed a contrary conclusion. The trial court chose to believe the NBI expert
because his examination and analysis "was more comprehensive than the one conducted by the
PC/INP handwriting expert, who virtually limited his reliance on the perceived similarities and
dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in
handwriting identification that it is not the form alone nor any one feature but rather a combination of
all the qualities that identify."
We have held that the value of the opinion of a handwriting expert depends not upon his mere
statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing
out distinguishing marks, characteristics and discrepancies in and between genuine and false
specimens of writing which would ordinarily escape notice or detection from an unpracticed
observer. 12 The test of genuineness ought to be the resemblance, not the formation of letters in some
other specimens but to the general character of writing, which is impressed on it as the involuntary
and unconscious result of constitution, habit or other permanent course, and is, therefore itself
permanent. 13
Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the
scales should tilt in favor of the prosecution. Significantly, the NBI opinion was bolstered by the
testimony of Agra, who believed that the ransom note was written by Tan, with whose handwriting he
was familiar because they had been working in the hospital for four years and he had seen that
handwriting every day in Tan's prescriptions and daily reports. 14
Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate
imitation of another person's signature. In the case before us, there was in fact an effort to disguise
the ransom note writer's penmanship to prevent his discovery.
As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows:
ARTICLE 267. Kidnapping and serious illegal detention. Any private
individual who shall kidnap or detain another, or in any manner deprive him of
his liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public
officer.

The penalty shall be death where the kidnapping or detention was committed
for the purpose of extorting ransom from the victim or any other person; even
if none of the circumstances above-mentioned were present in the commission
of the offense.
Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but
also in detaining him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted
that although the victim was not confined in an enclosure, he was deprived of his liberty when
Domasian restrained him from going home and dragged him first into the minibus that took them to
the municipal building in Gumaca, thence to the market and then into the tricycle bound for San
Vicente. The detention was committed by Domasian, who was a private individual, and Enrico was a
minor at that time. The crime clearly comes under Par. 4 of the above-quoted article.
Tan claims that the lower court erred in not finding that the sending of the ransom note was an
impossible crime which he says is not punishable. His reason is that the second paragraph of Article 4
of the Revised Penal Code provides that criminal liability shall be incurred "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." As the crime alleged is not against persons or property but against liberty, he argues that it is
not covered by the said provision.
Tan conveniently forgets the first paragraph of the same article, which clearly applies to him, thus:
ARTICLE 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.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping with serious illegal detention had
already been committed. The act cannot be considered an impossible crime because there was no
inherent improbability of its accomplishment or the employment of inadequate or ineffective means.
The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which
had already been consummated when Domasian deprived Enrico of his liberty. The sending of the
ransom note would have had the effect only of increasing the penalty to death under the last
paragraph of Article 267 although this too would not have been possible under the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it, whether they act through
physical volition of one or all, proceeding severally or collectively. 17
It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves
when said acts point to a joint purpose and design, concerted action and community of interests. 18 In
the instant case, the trial court correctly held that conspiracy was proved by the act of Domasian in
detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These
acts were complementary to each other and geared toward the attainment of the common ultimate
objective, viz. to extort the ransom of P1 million in exchange for Enrico's life.

55

The motive for the offense is not difficult to discover. According to Agra, Tan approached him six
days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no
funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million
pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and
demand P1 million for his release.

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.

The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he
was arrested without warrant and then tortured and held incommunicado to extort a confession from
him does not vitiate his conviction. He never gave any confession. As for the allegation that the
seizure of the documents used for comparison with the ransom note was made without a search
warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI agents
or other police authorities. We held in the case of People vs. Andre Marti, 20 that the Bill of Rights
cannot be invoked against acts of private individuals, being directed only against the government and
its law-enforcement agencies as a limitation on official action.

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.

We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of
kidnapping as defined and penalized under Article 267 of the Revised Penal Code and so deserve the
penalty imposed upon them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants.
Let a copy of this decision be sent to the Commission on Human Rights for investigation of the
alleged violation of the constitutional rights of Pablito Domasian.
SO ORDERED.
Grio-Aquino, Bellosillo and Quiason, JJ ., concur.
||| (People v. Domasian, G.R. No. 95322, [March 1, 1993])

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 fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, 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

56

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.

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.

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."
THIRD DIVISION
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.

[G.R. Nos. 141724-27. November 12, 2003.]

PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y
CHAVEZ, appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
Complainant Jessica Castro charged appellant of raping her four times between January 1994 and
November 1996. The evidence of the prosecution showed that appellant was the common-law
husband of Jessica's mother. For his defense, appellant advanced denial and alibi. However, the trial
court gave credence to the testimony of Jessica and convicted the appellant. He was sentenced to
suffer three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate
penalty for the frustrated rape. The appellant filed his appeal before the Supreme Court.
The Supreme Court found that the prosecution was able to prove beyond reasonable doubt appellant's
guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as
frustrated rape. According to the Court, it was an error for the trial court to convict appellant of
frustrated rape. In the present case, the victim testified that she felt pain and her vagina bled,

57

indisputable indications of slight penetration or, at the very least, that the penis indeed touched the
labia and not merely stroked the external surface thereof. Thus, appellant was found guilty of
consummated rape and not merely frustrated or attempted rape.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; A MATTER BEST
ASSESSED BY THE TRIAL COURT; APPLICATION IN CASE AT BAR. After a thorough
review of the records, we find no reason to deviate from the well-established rule that the credibility
of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe
them firsthand and to note their demeanor, conduct and attitude. In the present case, the trial court
found Jessica's testimony convincing, logical and credible. Moreover, the court a quo: xxx discerned
from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she
suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone
through, and her ... desire for justice and the punishment of her defiler. She was continually in tears
while testifying and the proceeding was interrupted several times to calm her down. No young
woman would allow an examination of her private part and subject herself to the humiliation and
rigor of a public trial if the accusations were not true, or if her motive were other than a fervent desire
to seek justice.
2. ID.; ID.; ID.; ID.; NOT AFFECTED BY INCONSISTENCIES REGARDING MINOR DETAILS.
The alleged inconsistencies and improbabilities in Jessica's testimony did not discredit her nor
reveal any fabrication. Inconsistencies regarding minor details were attributable to the fact that she
was recalling details of incidents that happened three years before, not to mention the fact that these
details pertained to something she had very little knowledge of, being then only nine years and three
months old when the first rape was committed. We have consistently ruled that errorless recollection
of a harrowing experience cannot be expected of a witness (a very young one at that) specially when
she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as rape.
3. ID.; ID.; ID.; ID.; FAILURE OF THE RAPE VICTIM TO CRY OUT FOR HELP DOES NOT.
MAKE HER TESTIMONY IMPROBABLE. Also, the failure of Jessica to cry out for help during
the incidents in question, inspite of the physical proximity of her relatives, or to report to them what
happened, did not at all make her testimony improbable inasmuch as it is not uncommon for a young
girl of tender age to be easily intimidated into silence and conceal for sometime the violation of her
honor, even by the mildest threat to her life.. Besides, Girlie, Jessica's mother, had a rift with her
siblings who lived in the same house and forbade Jessica to socialize with them. It was likewise
highly probable that the strained relations between Jessica's mother, uncle and aunt prevented Jessica
from confiding in them.
4. ID.; ID.; ID.; ID.; NOT AFFECTED BY DELAY IN REPORTING THE CRIME OF RAPE. In
a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime
does not necessarily detract from the witness' credibility as long as it is satisfactorily explained.
Jessica was threatened by appellant that he would kill her mother and relatives if she reported the
rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature
woman, cannot be expected to have the courage or confidence to immediately report a sexual assault
on her, specially when a death threat hangs over her head.

5. ID.; ID.; ID.; DEFENSES OF DENIAL AND ALIBI CANNOT STAND AGAINST POSITIVE
IDENTIFICATION AND CATEGORICAL TESTIMONY OF A RAPE VICTIM. In view of the
credible testimony of Jessica, appellant's defenses of denial and alibi deserve no consideration. These
weak defenses cannot stand against the positive identification and categorical testimony of a rape
victim.
6. CRIMINAL LAW; RAPE; CAN BE COMMITTED EVEN IN PLACES WHICH TO MANY
MIGHT APPEAR UNLIKELY AND HIGH-RISK VENUES FOR ITS COMMISSION. Appellant
makes much of the fact that two incidents of rape happened inside the room where the other children
were sleeping. This Court has repeatedly held that rape can be committed in the same room where
other members of the family are also sleeping, in a house where there are other occupants or even in
places which to many might appear unlikely and high-risk venues for its commission.
7. ID.; ID.; A CRIME WHICH CANNOT BE COMMITTED IN THE FRUSTRATED
STAGE; RATIONALE. The Court sustains appellant's contention that there is no such crime
as frustrated rape, as we have ruled in a long line of cases. Recently, in People vs. Quinanola,
we again reiterated the rule: Let it be said once again that, as the Revised Penal Code presently
so stands, there is no such crime as frustrated rape. In People vs. Orita, the Court has explicitly
pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge
of his victim, he actually attains his purpose and, from that moment also all the essential
elements of the offense have been accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez,
49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs.
Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that
for the consummation of rape, perfect penetration is not essential. Any penetration of the female
organ by the male organ is sufficient. Entry of the labia or lips of the female organ., without
rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559;
People vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because not all
acts of execution was performed. The offender merely commenced the commission of a felony
directly by overt acts. Taking into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage
in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the
case of People vs. Eriia, 50 Phil. 998 [1927] where We found the offender guilty of frustrated
rape there being no conclusive evidence of penetration of the genital organ of the offended party.
However, it appears that this is a 'stray' decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said laws.

58

DECISION

of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.
CONTRARY TO LAW. 2

CORONA, J p:
This is an appeal from the decision 1 of the Regional Trial Court of Manila, Branch 18, in Criminal
Case Nos. 97-159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of
simple rape, one count of statutory rape and one count of frustrated rape, and sentencing him to suffer
three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate penalty of
8 years to 14 years and 8 months of imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with raping her four times between January 1994 and
November 1996. The informations filed against appellant by the City Prosecutor read:
In Criminal Case No. 97-159184
That on or about January 14, 1996, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously, by means of
force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185
That on or about April 15, 1994, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously, by means of
force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA
CRUZ of death should she resist or report the matter to anybody, had carnal
knowledge of said Jessica C. Castro, a minor, under 12 years of age, against
her will.

CONTRARY TO LAW.
In Criminal Case No. 97-159186

Arraigned on September 5, 1997, appellant pleaded not guilty. 3 Thereafter, trial on the merits
ensued. However, the trial was subsequently postponed for eight months as Jessica was suffering
from psychological and emotional trauma from her horrifying ordeal. 4 The lower court ordered the
suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of
the Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting
Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against
her mother, Girlie de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was the common law husband of Jessica's
mother Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime
in 1993 in a two-storey house in Paco, Manila owned by Girlie's mother. They occupied a room on
the ground floor which served as their bedroom, kitchen and living room. The adjacent room was
occupied by Girlie's brother and his family while the room on the second floor was occupied by
Girlie's sister and her family.
Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco
Market, buying her stock from the Navotas fish market late at night and sometimes in the early hours
of the morning.
The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994
when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and
appellant's two children with Girlie. Jessica was then watching television while her brothers and
sisters were sleeping beside her. Appellant grabbed Jessica's right hand and lasciviously jabbed her
palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was armed
with a knife. Appellant then removed his pants, placed himself on top of complainant and succeeded
in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen.
She tried to leave the room but appellant locked the door and threatened to kill her if she told her
mother what happened. Jessica was then only nine years and four months old, having been born on
December 19, 1983. 5

In Criminal Case No. 97-159187

The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around
11:00 a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and
her siblings were left in the house watching television. Soon after, appellant arrived and sent the
children, except Jessica, to play outside. Left alone with Jessica, appellant removed his clothes,
pulled out a balisong and ordered Jessica to undress. He then held her by the shoulder and made her
lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her slightly.
He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt down,
kissed and fingered Jessica's vagina, then mashed her breasts. He only stopped what he was doing
when someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and, as
appellant opened the door, Jessica went to the bathroom to wash herself.

That on or about November 17, 1996, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and feloniously, by means

The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996; when Jessica
was 12 years and 6 months old. She arrived from school at around 11:00 a.m. While she was

That on or about March 12, 1995, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously, by means of
force and intimidation, that is, by threatening Jessica Castro y de la Cruz of
death should she resist or report the matter to anybody, had carnal knowledge
of said Jessica C. Castro, a minor, under 12 years of age, against her will.
CONTRARY TO LAW.

59

changing her clothes, appellant ordered Jessica's brother and sister to visit their mother at the Paco
Market and sent his children to play outside the house. When appellant and Jessica were alone, he
removed his pants, got his knife and ordered her to undress. Since she was afraid, Jessica was forced
to remove her clothes. Appellant then told her they would do what they did before, pulled her towards
him and made her lie down on the floor. While holding the knife, he kissed and fingered her vagina,
then mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he
ejaculated. When Jessica's brother and sister arrived, appellant hurriedly put on his clothes. Jessica
did the same. She then went to the bathroom to wash herself and change her bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at
around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings
who were all asleep. Appellant told Jessica that they would again do what they did before but she
refused, saying that she might get pregnant. Appellant brandished his balisong and threatened to kill
her. He then covered himself and Jessica with a blanket, removed his pants and her shorts, and placed
himself on top of her. His penis slightly penetrated her vagina. He mashed her breasts, inserted his
finger into her vagina and kissed it. Jessica pushed him away and told him she wanted to sleep. Then
she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother what he
did to her. He assured her that she would not get pregnant because she was not yet menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment
of Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped
her several times. Mrs. Mojica called up Jessica's aunt, Mrs. Antonina de la Cruz, and narrated to her
what Jessica had confessed. Mrs. De la Cruz then accompanied Jessica to the police station to file a
complaint and to the Philippine General Hospital (PGH), Child Protection Unit, to be examined. Dr.
Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica and the findings
revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 o'clock position to 4 o'clock position and from 6 o'clock to
12 o'clock position
Notch at 5 o'clock
Healed hymenal tear at the 6 o'clock position
Anus: Normal rectal tone, no pigmentation, no scars, normal rugae 6
For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that,
during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified
that, during the purported first and second incidents of rape, appellant was with her to buy fish in
Navotas and sell them in Paco market. Appellant argued that since Jessica disapproved of his
relationship with her mother, she had the motive to falsely accuse him of raping her. Further, he
pointed out the improbability of the alleged first and fourth incidents of rape inasmuch as the makeup of the room made it impossible for Jessica's siblings not to wake up during the commission of the
crime. Appellant further contended that Jessica's failure to cry out for help, knowing that her mother's
relatives were in the same house, made her story of rape unbelievable.

The trial court gave credence to the testimony of Jessica and convicted the appellant:
WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y
Chavez is convicted of simple rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law.
In Criminal Case No. 97-159185, the accused is also convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua with all the accessory penalties provided by law.
In Criminal Case No. 97-159186, the accused is likewise convicted of statutory
rape under Article 335 of the Revised Penal Code and sentenced to transfer the
penalty of reclusion perpetua with all the accessory penalties provided by law.
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape
under Article 335 of the Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor as minimum to 14 years and
8 months of reclusion temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he is ordered to pay the
victim, Jessica Castro, moral, nominal and exemplary damages in the
respective sums of P400,000.00, P200,000.00 and P100,000.00. acAESC
SO ORDERED. 7
In this appeal; appellant assigns the following errors:
I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONE COUNT OF STATUTORY RAPE, ONE COUNT OF
FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF FRUSTRATED RAPE DESPITE
THE FACT THAT UNDER PREVAILING JURISPRUDENCE
THERE IS NO SUCH CRIME. 8
The Office of the Solicitor General argues that appellant's convictions should be upheld as the
prosecution was able to prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond
reasonable doubt appellant's guilt for two counts of statutory rape and two counts of simple rape,
there being no such crime as frustrated rape in this jurisdiction.

After a thorough review of the records, we find no reason to deviate from the well-established rule
that the credibility of witnesses is a matter best assessed by the trial court because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and attitude. 9 In the

60

present case, the trial court found Jessica's testimony convincing, logical and credible. Moreover, the
court a quo:
. . . discerned from her demeanor the intense mental torture, embarrassment,
emotional pain and bitterness she suffered whenever she was asked to recall
and narrate the humiliating sexual ordeals she had gone through, and her . . .
desire for justice and the punishment of her defiler. She was continually in
tears while testifying and the proceeding was interrupted several times to calm
her down. 10
No young woman would allow an examination of her private part and subject herself to the
humiliation and rigor of a public trial if the accusations were not true, or if her motive were other
than a fervent desire to seek justice. 11
We do not subscribe to appellant's theory that the filing of the rape charges was motivated by
Jessica's dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as
appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not
see in Jessica. The fact that Jessica had to undergo psychological treatment 12 after her first
testimony in February 1998 belies appellant's defense. The need for such counseling came about after
the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape that caused
her psychological and emotional imbalance which required therapy at the Child Protection Unit of the
Philippine General Hospital.
The alleged inconsistencies and improbabilities in Jessica's testimony did not discredit her nor reveal
any fabrication. Inconsistencies regarding minor details were attributable to the fact that she was
recalling details of incidents that happened three years before, not to mention the fact that these
details pertained to something she had very little knowledge of, being then only nine years and three
months old when the first rape was committed. We have consistently ruled that errorless recollection
of a harrowing experience cannot be expected of a witness (a very young one at that) specially when
she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as rape.
13
Appellant makes much of the fact that two incidents of rape happened inside the room where the
other children were sleeping. This Court has repeatedly held that rape can be committed in the same
room where other members of the family are also sleeping, in a house where there are other
occupants or even in places which to many might appear unlikely and high-risk venues for its
commission. 14
Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical
proximity of her relatives, or to report to them what happened, did not at all make her testimony
improbable inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated
into silence and conceal for sometime the violation of her honor, even by the mildest threat to her
life. 15 Besides, Girlie, Jessica's mother, had a rift with her siblings who lived in the same house and
forbade Jessica to socialize with them. It was likewise highly probable that the strained relations
between Jessica's mother, uncle and aunt prevented Jessica from confiding it them.
In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the
crime does not necessarily detract from the witness' credibility as long as it is satisfactorily explained.
16 Jessica was threatened by appellant that he would kill her mother and relatives if she reported the

rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature
woman, cannot be expected to have the courage or confidence to immediately report a sexual assault
on her, specially when a death threat hangs over her head. 17
In view of the credible testimony of Jessica, appellant's defenses of denial and alibi deserve no
consideration. These weak defenses cannot stand against the positive identification and categorical
testimony of a rape victim. 18
The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987,
the dispositive portion of which read:
xxx xxx xxx.
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape
under Article 335 of the Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor as minimum, and to pay the
costs.
xxx xxx xxx.
SO ORDERED. 19
However, we agree with the observation of the Solicitor General that the court a quo was referring to
Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of
frustrated rape:
The trial court convicted appellant of simple rape in Criminal Case No. 97159185. However, the factual basis thereof in the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has gathered
that sometime in April, 1994, at around 11:00 p.m., Jessica and her
two siblings together with the accused were in their house, while
their mother, Girlie, was in Navotas buying fish. Jessica was
watching TV in a lying position beside her two sleeping siblings,
when the accused held Jessica's right hand and jabbed her palm with
his finger. Then he told her to remove her short pants, panty and Tshirt, after which the accused removed his pants and with a balisong
in his hand, he began kissing the sensitive parts of her body. Then he
placed himself on top of her and tried to have sexual intercourse with
her. He succeeded in nudging her sex organ with the tip of his penis,
but was unable to accomplish penetration, due to the resistance
offered by her by struggling and kicking him. Nonetheless, the
accused had orgasm and Jessica's sex organ was smeared with his
semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court concluded there was no
penetration.
On the other hand, the factual basis for the conviction in Criminal Case No.
97-159187 in the body of the trial court's decision reads:

61

Anent Criminal Case No. 97-159187, the records further show that in
November, 1996, at around 11:00 p.m., Jessica was watching TV
while the other siblings were asleep and her mother was away, when
accused again made sexual advances to her. She resisted and told
accused she might become pregnant, but the accused persisted and
threatened to kill her at that very moment if she would not submit to
his lust. As in the previous occasions, he again succeeded in having
carnal knowledge of the helpless and scared victim. After her
defilement, the victim continually cried and the accused tried to calm
her down by assuring her that she would not be impregnated,
because she has not yet began to have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should pertain to the incident
in April 1994 described in Criminal Case No. 97-159185 and not Criminal
Case No. 97-159187 since this case refers to the November 1996 rape incident
where the findings of the trial court was that there was carnal knowledge. 20
Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97159187 is further evidenced by the following paragraph found in page four of the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the accused in having
carnal knowledge of the victim by intimidation on two separate occasions in
[the] early or middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A. 7659 and the
penalty prescribed therefore is death by lethal injection. 21 (Emphasis Ours)
The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and
97-159187, as borne out by the informations filed by the City Prosecutor. 22 Thus, the conviction for
frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97159187.
Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellant's
contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases. 23
Recently, in People vs. Quinanola, 24 we again reiterated the rule:
Let it be said once again that, as the Revised Penal Code presently so stands,
there is no such crime as frustrated rape. In People vs. Orita, the Court has
explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose and,
from that moment also all the essential elements of the offense have
been accomplished. Nothing more is left to be done by the offender,
because he has performed the last act necessary to produce the crime.
Thus, the felony is consummated. In a long line, of cases (People vs.
Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People
vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We
have set the uniform rule that for the consummation of rape, perfect

penetration is not essential. Any penetration of the female organ by

the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People vs. Tayaba, 62
Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United States vs.
Garcia, 9 Phil. 434) because not all acts of execution was performed.
The offender merely commenced the commission of a felony directly
by overt acts. Taking into account the nature, elements and manner
of execution of the crime of rape and jurisprudence on the matter, it
is hardly conceivable how the frustrated stage in rape can ever be
committed.

Of course, We are aware of our earlier pronouncement in the case of

People vs. Eriia, 50 Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it
appears that this is a 'stray' decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are aware of
Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted or frustrated and
a homicide is committed by reason or on the occasion thereof. We
are of the opinion that this particular provision on frustrated rape is a
dead provision. The Eriia case, supra, might have prompted the
law-making body to include the crime of frustrated rape in the
amendments introduced by said laws. AcSHCD
The Court is not unaware that Republic Act No. 7659, amending Article 335 of
the Revised Penal Code, has retained the provision penalizing with reclusion
perpetua to death an accused who commits homicide by reason or on the
occasion of an attempted or frustrated rape. Until Congress sees it fit to define
the term frustrated rape and thereby penalize it, the Court will see its
continued usage in the statute book as being merely a persistent lapse in
language. (emphasis ours)
Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful
review of the records, we find that the rape was in fact consummated. Jessica initially testified that,
although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch
hers and she saw and felt semen come out of his penis and smear her vagina. 25 In response to the
clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to slightly
penetrate her because she felt pain and her vagina bled. 26 It has been held that, to be convicted of
rape, there must be convincing and sufficient proof that the penis indeed touched the labia or slid into
the female organ, and not merely stroked the external surface thereof. 27 Nevertheless, we have also
ruled in cases where penetration is not established that the rape is deemed consummated if the victim

62

felt pain, or the medico-legal examination finds discoloration in the inner lips of the vagina, or the
labia minora is already gaping with redness, or the hymenal tags are no longer visible. 28 In the
present case, the victim testified that she felt pain and her vagina bled, indisputable indications of
slight penetration or, at the very least, that the penis indeed touched the labia and not merely stroked
the external surface thereof. Thus, the appellant should be found guilty of (consummated) rape and
not merely frustrated or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if
rape is committed when the victim is under 18 years of age and the offender is the common-law
spouse of the parent of the victim. However, the trial court was correct in not imposing the death
penalty in Criminal Case Nos. 97-159184 and 97-159187 because the qualifying circumstances of
age and relationship of the victim to the appellant were not alleged in the information. 29 Thus,
appellant can only be convicted of simple rape punishable by reclusion perpetua under Article 335 of
the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant
can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the
Revised Penal Code inasmuch as the age of Jessica was alleged in the information 30 and duly
proven during the trial by the presentation of her birth certificate. 31
We award moral damages of P50,000 for each count of rape as moral damages are automatically
awarded to rape victims without need of pleading or proof. 32 We also award civil indemnity ex
delicto of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is
distinct from moral damages, is mandatory upon the finding of the fact of rape. 33 We likewise award
exemplary damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on
the matter. 34
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos.
97-159184 to 87 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159184, appellant is convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
2. In Criminal Case No. 97-159185, appellant is convicted of statutory rape
under Article 335 of the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape
under Article 335 of the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced to suffer
the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral
damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000.
Costs against appellant.
SO ORDERED.

Puno, Panganiban, Sandoval-Gutierrez and Carpio Morales, JJ ., concur.

||| (People v. Orande y Chavez, G.R. Nos. 141724-27, [November 12, 2003], 461 PHIL 403-422)

EN BANC
[G.R. No. 160188. June 21, 2007.]
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, vs. PEOPLE OF THE PHILIPPINES and
HON. COURT OF APPEALS, respondents.
DECISION
TINGA, J p:
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 wellknown 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

63

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
CaAcSE
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 prosecutor's office where he was charged with
theft. 14 During petitioner's 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 Calderon's 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 petitioner's conviction. 22 Hence the present Petition
for Review, 23 which expressly seeks that petitioner's 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. aECTcA
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

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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 TEcADS
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 latter's 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;

65

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 DHTECc
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 latter's 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:

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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: "[. . .] The trial court did not err [. . .] 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: "[. . .] The accused [. . .] 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 CTAIHc

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 [accused's] 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
Floresdecisions.
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.

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 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:

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

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

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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 CHDaAE
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 . . ., [such] as money . . . ." 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
Viada's opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias . . . [ 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 . . . and U.S. v. Sobrevilla . . . 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

68

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. ITSacC
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 Court's
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 articulos 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. EHSIcT

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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 decision's 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 Caln's 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. SCADIT
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 Caln's 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

70

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 latter's 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 Aquino's 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. aDCIHE

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
. . . [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 one's 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

71

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 noncompletion 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. cIHSTC
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

EN BANC

G.R. No. L-46428

April 13, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IRINEO TUMLOS, defendant-appellant.
Marcelo Nubla for appellant.
Office of the Solicitor-General Ozaeta and Acting Assistant Attorney Kahn for appellee.
VILLA-REAL, J.:
The defendant Irineo Tumlos appeals to this court from the judgment of the Court of First Instance of
Iloilo finding him guilty of the crime of theft of large cattle defined and punished in article 310, in
relation to article 309, of the Revised Penal Code, and sentencing him to suffer the indeterminate
penalty of from two months and one day of arresto mayor to two years, four months and one day of
prision correccional, with the accessories prescribed by law and costs, by virtue of an information
reading as follows:
The undersigned acting provincial fiscal accuses Irineo Tumlos of the crime of
qualified theft committed as follows:
That on or about November 21, 1937, in the municipality of Sara, Province of
Iloilo, Philippines, and within the jurisdiction of this court, said defendant,
wilfully and without using force upon things or violence or intimidation against
person, took, with intent to gain and without the consent of their owner, five cows
valued at P39 and belonging to Ambrosio Pecasis.

Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,

Azcuna, Chico-Nazario, Garcia, Velasco, Jr. and Nachura, JJ., concur.

An act punishable by law.

Quisumbing, J., is on official leave.

Iloilo, July 11, 1938.

||| (Valenzuela y Natividad v. People, G.R. No. 160188, [June 21, 2007], 552 PHIL 381-419)

Republic of the Philippines

SUPREME COURT
Manila

In support of his appeal the appellant assigns as the only error allegedly committed by the lower court
in the aforesaid judgment its failure to sustain the defense of "autrefois convict" or double jeopardy,
interposed by said defendant.
On or about November 21, 1937, eight cows belonging to Maximiano Sobrevega and five belonging
to his son-in-law, Ambrosio Pecasis, then grazing together in the barrio of Libong-cogon,
municipality of Sara, Province of Iloilo, were taken by the herein defendant without the knowledge or
consent of their respective owners. The deputy fiscal of Iloilo filed on July 11, 1938, an information

72

against the said defendant for the offense of theft of the eight cows belonging to Maximiano
Sobrevega, which resulted in his being sentenced on July 15, 1938, to an indeterminate penalty of
from one year, eight months and twenty-one days to five years, five months and eleven days of
prision correccional, with the accessories prescribed by law and costs. In the information filed in the
present case the same defendant is charged with the theft of five cows belonging to Ambrosio
Pecasis, committed on November 21, 1937, the date of the commission of the theft to the eight cows
of Maximiano Sobrevega charged to the previous information.
The question to be decided in the present appeal is whether or not the conviction of the accused for
the theft of the eight cows belonging to Maximiano Sobrevega constitutes a bar to his conviction for
the theft of the five cows belonging to Ambrosio Pecasis, which were grazing together with the
aforesaid eight cows belonging to Maximiano Sobrevega in the same place from which they were
stolen at the same time, under the legal procedural principle of "autrefois convict" or double jeopardy.
The theft of the thirteen cows committed by the defendant took place at the same time and in the
same place; consequently, he performed but one act. The fact that eight of said cows pertained to one
owner and five to another does not make him criminally liable for two distinct offenses, for the
reason that in such case the act must be divided into two, which act is not susceptible of division.
The intention was likewise one, namely, to take for the purpose of appropriating or selling the
thirteen cows which he found grazing in the same place. As neither the intention nor the criminal act
is susceptible of division, the offense arising from the concurrence of its two constituent elements
cannot be divided, it being immaterial that the subject matter of the offense is singular or plural,
because whether said subject matter be one or several animate or inanimate objects, it is but one.
Therefore, as the five cows alleged to be stolen by Irineo Tumlos were integral parts of the thirteen
cows which were the subject matter of theft, and as he had already been tried for and convicted of the
theft of the other five.
Wherefore, as he had already been put in jeopardy of being convicted of the theft of the five cows in
question when he was tried for and convicted of the theft of the eight which together with the five
from an integral part of the thirteen which were the subject matter of the offense, the conviction of
the herein defendant Irineo Tumlos for the said five cows in the present case would be the second, in
violation of his constitutional right not to be punished twice for the same offense; hence, he is
acquitted of the charge, which is dismissed, with costs de oficio. So ordered.
Avancea, C. J., Imperial, Diaz, Laurel, Concepcion, and Moran, JJ., concu

THIRD DIVISION
[G.R. No. 118992. October 9, 1997.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CELERINO

CASTROMERO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
Appellant, in the early morning of February 6, 1993, barged into the house of complainant, a 26-year
old married woman with two children. Holding a knife on the right hand, accused warned
complainant not to shout or else he would kill her. He then embraced and kissed her, touched her
breast and her private parts. Appellant then removed her skirt, placed himself on top of her, and tried
to insert his penis into her vagina. Because of complainant's movement sideways and her struggle, his
penis merely touched her private parts and did not penetrate. Complainant was able to escape by
jumping out of the window causing injuries to her spinal column. Charged with rape with serious
physical injuries, appellant interposed the defense of denial and alibi that he was sleeping in his
house located about 50 meters away. At the trial, complainant positively identified appellant, her
neighbor and a relative of her mother-in-law, as her violator. She declared that the crime scene was
illuminated by the lights inside and outside her room which is usually left on in the absence of her
husband. The trial court rendered judgment convicting the accused. Hence, this appeal. cdasia
The defense of denial and alibi cannot prevail over the positive identification of the appellant by the
complainant. For alibi to serve as basis for acquittal, appellant must convincingly demonstrate that it
was physically impossible for him to have been at the scene of the crime at the time of its
commission. Appellant's evidence falls far short of this requirement.
To consummate rape, perfect or complete penetration of the complainant's private organ is not
essential. Even the slightest penetration by the male organ of the lips of the female organ, or labia of
the pudendum, is sufficient.
In relation to the charge that rape was complexed with the crime of serious physical injuries, the
settled principle is that a person who creates in another's mind an immediate sense of danger that
cause the latter to try to escape is responsible for whatever the other person may consequently suffer.

SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEALS; GUIDING PRINCIPLES IN
REVIEWING RAPE CASES. In deciding this appeal, we are guided by the following principles
formulated specifically for the review of rape cases: (1) an accusation of rape, while easy to make, is
difficult to prove and even harder for the person accused, though innocent, to disprove; (2) because
rape, by its very nature, involves only two persons, the testimony of the complainant should be
scrutinized with the greatest caution; (3) the evidence for the prosecution must stand or fall on its

73

own merits and must not be allowed to draw strength from the weakness of the evidence for the
defense. On the other hand, the complainant's credibility assumes paramount importance because her
testimony, if credible, is sufficient to support the conviction of the accused. ScTIAH
2. ID.; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT GENERALLY
UPHELD ON APPEAL; CASE AT BAR, NOT AN EXCEPTION. After a thorough review of the
records in the case at bar, we see no reason to reverse the trial court's factual finding and conclusion
on the credibility of Josephine Baon's testimony; we are likewise, unpersuaded by accused-appellant's
asseverations. "Well-settled is the rule that the assessment of the credibility of witnesses and their
testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination.
Findings of the trial court on such matters are binding and conclusive on the appellate court, unless
some facts or circumstances of weight and substance have been overlooked, misapprehended or
misinterpreted.
3. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE TO FALSELY CHARGE ACCUSED. A rape victim
"will not come out in the open if her motive [is] not to obtain justice." In any event, it was not shown
that complainant had any ill motive to falsely testify against Accused Castromero. The accused
himself and his wife Juliana both admitted during trial that they had no knowledge of any "bad
blood" between them and Josephine Baon or her family. Hence, Josephine's testimony, which we find
credible and worthy of belief, is sufficient to convict the accused-appellant of the crime charged. The
reliability and credibility of her testimony are bolstered by her narration of the sordid incident
immediately thereafter to her mother-in-law, Felipa Baon. Based on the foregoing, we are convinced
that appellant sexually assaulted Complainant Josephine Baon.
4. ID.; ID.; ID.; DENIAL AND ALIBI; INHERENTLY WEAK TO OUTWEIGH
COMPLAINANT'S POSITIVE AND CATEGORICAL TESTIMONY. Appellant Castromero's
defense of denial and alibi is inherently weak and certainly insufficient to outweigh complainant's
positive and categorical assertion of her violation by the former.
5. ID.; ID.; ID.; ALIBI; REQUISITE FOR DEFENSE TO PROSPER; CASE AT BAR.
Furthermore, "(f)or alibi to serve as basis for acquittal, it must be established with clear and
convincing evidence. The requisites of time and place must be strictly met. Appellant must
convincingly demonstrate that it was physically impossible for him to have been at the scene of the
crime at the time of its commission." Appellant's evidence falls far short of this requirement because
his house, where he was allegedly sleeping at the time the crime was committed, was a mere fifty
meters from the crime scene. Hence, it was not at all physically impossible or even difficult for
appellant to have been at complainant's home at the time of the crime.
6. CRIMINAL LAW; RAPE; PERFECT OR COMPLETE PENETRATION IS NOT ESSENTIAL.
To consummate rape, perfect or complete penetration of the complainant's private organ is not
essential. Even the slightest penetration by the male organ of the lips of the female organ, or labia of
the pudendum, is sufficient. In People vs. Dela Pea, (233 SCRA 573, 578-579, June 30, 1994) this
Court held that "the mere touching of the external genitalia by a penis capable of consummating the
sexual act constitutes carnal knowledge." Josephine's testimony that appellant's organ touched the
opening of her vagina can lead to no other conclusion than that the appellant's manhood legally
invaded, however slightly, the lips of her private organ. Clearly, rape was consummated in this case.
Because the sexual assault was perpetrated by force and intimidation, Appellant Castromero is thus
guilty of rape pursuant a to Article 335 of the Revised Penal Code.

7. ID.; COMPLEX CRIME; RAPE WITH SERIOUS PHYSICAL INJURIES. In relation to the
charge that rape was complexed with the crime of serious physical injuries, we stress the settled
principle that a person who creates in another's mind an immediate sense of danger that causes the
latter to try to escape is responsible for whatever the other person may consequently suffer. In this
case, Josephine jumped from a window of her house to escape from Appellant Castromero; as a
result, she suffered serious physical injuries, specifically a broken vertebra which required medical
attention and surgery for more than ninety days. This being the case, the court a quo correctly
convicted Appellant Castromero of the complex crime of rape with serious physical injuries.
8. CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE VICTIM INCREASED TO P50,000.00.
The indemnity in favor of Josephine Baon is hereby INCREASED to fifty thousand pesos
(P50,000.00) in line with current jurisprudence. aEHTSc

DECISION

PANGANIBAN, J p:
Rape is consummated by the slightest touching of the lips of the female organ or of the labia of the
pudendum. Complete penetration is not required. The rapist is likewise liable for the injury suffered
by the rape victim as a result of her attempt to escape the assault.
The Case
This is an appeal from the August 17, 1994 Decision 1 of the Regional Trial Court, Fourth Judicial
Region, Branch 10 2 stationed in Balayan, Batangas in Criminal Case No. 3509 finding appellant
guilty of rape with serious physical injuries.
The Complaint 3 against Appellant Celerino Castromero reads:
"The undersigned offended party under oath accuses Celerino Castromero of
the Complex Crime of Rape with Serious Physical Injuries, defined and
penalized under Article 335, in relation to Article 48 and 263 of the Revised
Penal Code, committed as follows:
That on or about the 6th day of February, 1993, at about 2:00 o'clock in the
morning, at Barangay Tanggoy, Municipality of Balayan, Province of
Batangas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a knife (balisong) and by means of force
and intimidation did then and there wilfully, unlawfully and feloniously have
carnal knowledge with the offended party Josephine Baon against her will and
consent and as a consequence thereof, the said offended party suffered serious
physical injuries which injuries required medical attendance and incapacitated
her from performing her customary work for a period of more than ninety (90)
days by jumping down through the window of her house.

74

Contrary to law."
The Complaint 4 was treated as the Information with the approval of Provincial Prosecutor Carmelo
Q. Quizon, after Fourth Asst. Provincial Prosecutor Rolando E. Silang added his sworn certification
that a "preliminary investigation was conducted in accordance" with law. When arraigned on July 20,
1993, the accused-appellant, assisted by Counsel de Officio Hermogenes De Castro, pleaded not
guilty. 5
After a pre-trial conference, trial ensued in due course. Subsequently, the trial court rendered the
assailed Judgment, the dispositive portion of which reads:

"WHEREFORE, the Court finds the accused Celerino Castromero GUILTY

beyond reasonable doubt of the crime of Rape With Serious Physical Injuries
and hereby sentences him to reclusion perpetua, to indemnify the victim
Josephine Baon in the sum of P40,000.00, to pay Josephine Baon the sum of
P20,378.95 representing actual damages and to pay the costs.
Considering that the accused is a detention prisoner, he shall be credited with
the period of his detention during his preventive imprisonment.
SO ORDERED." 6
The Facts
Version of the Prosecution
The prosecution presented three witnesses, namely: (1) Josephine Baon, the victim; (2) her husband,
Esmeraldo Baon, who testified on the medical expenses for the injuries his wife suffered because of
the crime; and (3) Felipa Baon. The facts gleaned by the trial court from their testimonies are as
follows:
"Felipa Baon is the mother-in-law of the alleged victim and was presented to
prove circumstances of the incident which form part of the "res gestae." She
testified that the accused is her nephew because the accused's father is her first
cousin. On February 6, 1993 at around 2:00 o'clock in the morning while
asleep in their house in Barangay Tangoy, Balayan, Batangas, she was
awakened by a scream of her daughter-in-law whose house is situated just five
(5) armslength away from theirs. When she came out to help her daughter-inlaw (Josephine Baon), the latter was lying in front of the window so, she and
her husband carried Josephine into their house. Thereat, Josephine related what
happened to her. According to Josephine, the accused forcibly entered her
room, placed himself on top of her and made his penis touch her vagina for
several times. The accused was then holding a knife. When Josephine was able
to free herself from the accused, she jumped out of the window where she fell
into the ground. Thereafter, the assistance of Barangay Captain Codizal was
sought who reported the incident to the police. Felipa Baon executed a sworn
statement when investigated by one SPO2 William C. Dimaala in the
Philippine Orthopedic Hospital where Josephine was confined for treatment.

The next witness was the private complainant who gave her testimony while
lying on a bamboo bed. She averred that she knows the accused because the
latter is the nephew of her mother-in-law. On February 6, 1993, at around 2:00
o'clock in the morning while asleep, she was awakened by the slam of the
kitchen door. She rose and went out of the bedroom to check what happened
and outside the room she met the accused. The accused pointed a knife at her
and warned her not to shout or else she would be killed. She got scared.
The accused, while holding a knife on the right hand, embraced her behind the
neck, kissed her cheek, and touched her breasts. Then he pulled her panty until
the garter got loose and touched her private parts. Next, accused pulled down
his jogging pants and brief. She kept herself still because of the accused's
threat to kill her. Accused then removed her skirt, placed himself on top of her,
and tried to insert his penis into her vagina. Because of the accused' movement
sideways and her struggle, his penis touched her private parts.
When she noticed that the accused was no longer holding the knife, she pushed
him away. As she rose up, the accused grabbed her hands and was about to stab
her. So, she immediately jumped out of the window. When she fell down, she
yelled for help from her in-laws who responded and carried her to their house
because she could not move her feet. She requested her mother-in-law to bring
her to the emergency hospital because of the intense pain she was then
suffering. Her in-laws reported the incident to the barangay captain who
looked for the accused and to whom the accused surrendered.
From the emergency hospital, she was later transferred to the Philippine
Orthopedic Hospital. Upon examination, it was found out that her spinal
column was broken which required her to undergo surgical operation. (Exhs.
"E", "E-1" to "E-5").
On cross-examination, private complainant averred that it is her habit to sleep
at night with lights on in and out of her room especially when her husband is
not around. In the night of February 5, 1993 she slept with the lights on
together with her children, namely: Joanna Marie and Romualdo. It was at
around 2:00 o'clock the following morning when she was awakened by a slam
of the door, reason for her to rise-up to check what happened and she met the
accused just outside her room as she went out. The accused then pulled her and
pointed a knife on the left side of her neck and touched her private parts while
they were both standing with the accused in front of her.
When she was already lying down (upon the orders of the accused) the accused
went on top of her embracing her with his right arm which also held a knife
and touched her private parts. The accused tried to insert with his left hand his
penis into her vagina.
As the knife was pointed at her, the accused warned her not to shout or she
would be killed. It was the accused's left hand that touched her breast because
his right hand held the knife. The accused used both hands in removing her
panty with the knife still on his hand. The accused removed his jogging pants

75

and brief and the knife was still pointed in her neck. When the accused tried to
insert his penis, it touched her vagina as she put up resistance and as both of
them moved sideways.
The next witness was Esmeraldo Baon, the husband of the offended party
whose gist of the testimony relates to the civil aspect of the crime charged. He
testified on the hospital and surgical expenses and cost of medicines incurred
on account of the injury suffered by the offended party caused by her jumping
out of the window. The witness also identified the receipts and other relevant
documents in support of the expenses incurred. Although he claimed having
incurred expenses in the amount of P242,198.00, the witness was able to
present receipts covering P20,378.95 only (Exhs. "D-1" to "D-25")." 7
Version of the Defense
Raising denial and alibi, the defense presented two witnesses in the person of Appellant Celerino
Castromero and his wife Juliana. The appellant, through the Public Attorney's Office, narrated the
following version of the facts: 8
"Juliana Castromero testified that she is the wife of the accused. She said that
at around 6 o'clock in the evening of February 5, 1993 she was with her
husband (accused) and their three (3) children at their house in Tanggoy,
Balayan, Batangas. They took their dinner. At about 7 o'clock of the same night
her husband went out. Her husband returned before midnight and slept right
away. She was awake till 1 o'clock because one of their children had a stomach
ache. When she woke up at 5 o'clock in the morning, her husband was still
sleeping. Her husband woke up at 6:00 A.M. After taking his breakfast, her
husband went to his work in Dalig, Balayan, Batangas. Her husband is a
threshing machine operator. While her husband was on his job, some
policemen came to their house and were looking for him. Her husband was
being suspected of entering other's (sic) dwelling. (TSN, pp. 2-8, April 7, 1994
and pp. 2-9, April 28, 1994) cdasia
Celerino Castromero testified that at around 6 o'clock in the evening of
February 5, 1993 he took his supper together with his wife and children. At
about 7 P.M. he left and played (or gambled) in a nearby house. At 11:30 P.M.,
he went home. After his arrival at their house, he went to sleep right away. He
woke up at 5 o'clock of the following morning. He reported for work in Dalig,
Balayan, Batangas being a threshing machine operator. When he went home at
12 o'clock noon, their barangay captain arrived and informed him that he was
being suspected of having committed a crime. The police invited him to the
police station. And at the police station, the police did not conduct any
investigation. He was merely placed or locked up in the jail. He went to the
police station, together with their barangay captain, to explain his side and not
to surrender. He denied vehemently to have committed any crime. (TSN, pp. 218, May 19, 1994)."
Error Assigned

The defense raises one error: "the court a quo erred in not acquitting the accused-appellant of the
crime charged." 9 Appellant denies the accusation against him and insists that he was inside his own
house at the time of the alleged rape.
The Court's Ruling
The appeal is not meritorious.
Credibility of Witnesses
In his brief, the appellant simply denies the charge of rape with serious physical injuries and insists
on his alibi. 10 He also alludes to the following as indications of his innocence: he voluntarily went
to the police station with the barangay captain; 11 he pleaded not guilty to the charge; 12 and he
vehemently denied committing the crime. 13 Finally, he adds, "if a reasonable doubt exists, the
verdict must be one of acquittal." 14
In deciding this appeal, we are guided by the following principles formulated specifically for the
review of rape cases: (1) an accusation of rape, while easy to make, is difficult to prove and even
harder for the person accused, though innocent, to disprove; (2) because rape, by its very nature,
involves only two persons, the testimony of the complainant should be scrutinized with the greatest
caution; (3) the evidence for the prosecution must stand or fall on its own merits and must not be
allowed to draw strength from the weakness of the evidence for the defense. 15 On the other hand,
the complainant's credibility assumes paramount importance because her testimony, if credible, is
sufficient to support the conviction of the accused. 16
After a thorough review of the records in the case at bar, we see no reason to reverse the trial court's
factual finding and conclusion on the credibility of Josephine Baon's testimony; 17 we are likewise
unpersuaded by accused-appellant's asseverations. "Well-settled is the rule that the assessment of the
credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of
its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and
attitude under grilling examination. Findings of the trial court on such matters are binding and
conclusive on the appellate court, unless some facts or circumstances of weight and substance have
been overlooked, misapprehended or misinterpreted." 18

Josephine Baon's testimony on how her honor was defiled by appellant that early dawn was clear,
direct and honest. 19 Josephine never wavered in her account of the rape in spite of the long
browbeating she received during her cross-examination. 20 Her identification of Appellant
Castromero as her violator cannot be disputed because she personally knew appellant who, aside
from being a neighbor, was also a relative of her mother-in-law. Moreover, she had the opportunity to
identify her assailant, since the crime scene was illuminated by the lights inside and outside her room
which she usually left on, specially in the absence of her husband as was the case that night. 21
Besides, it is inconceivable that complainant, a decent 26-year old married Filipina with two young
children, would suffer the embarrassment of having to reveal intimate details of her violation and to
undergo all the difficulties and indignities of a rape prosecution, if her sole motivation was not to
have the real culprit arrested and punished for the outrage committed against her. Indeed, a rape
victim "will not come out in the open if her motive [is] not to obtain justice." 22 In any event, it was
not shown that complainant had any ill motive to falsely testify against Accused Castromero. The

76

accused himself and his wife Juliana both admitted during trial that they had no knowledge of any
"bad blood" between them and Josephine Baon or her family. 23
Hence, Josephine's testimony, which we find credible and worthy of belief, is sufficient to convict the
accused-appellant of the crime charged. The reliability and credibility of her testimony are bolstered
by her narration of the sordid incident immediately thereafter to her mother-in-law, Felipa Baon.
Based on the foregoing, we are convinced that appellant sexually assaulted Complainant Josephine
Baon. LexLib
Appellant Castromero's defense of denial and alibi is inherently weak and certainly insufficient to
outweigh Josephine's positive and categorical assertion of her violation by the former. 24
Furthermore, "(f)or alibi to serve as basis for acquittal, it must be established with clear and
convincing evidence. The requisites of time and place must be strictly met. Appellant must
convincingly demonstrate that it was physically impossible for him to have been at the scene of the
crime at the time of its commission." 25 Appellant's evidence falls far short of this requirement
because his house, where he was allegedly sleeping at the time the crime was committed, was a mere
fifty meters from the crime scene. 26 Hence, it was not at all physically impossible or even difficult
for appellant to have been at complainant's home at the time of the crime. It seems to this Court that
the defense of denial and alibi was routinely raisedfaute de mieux.
Was Rape Committed?
In determining whether the rape was consummated or merely attempted, we observe that in this case
there was no complete or perfect penetration of the complainant's sex organ. The salient portions of
her testimony are as follows:
"Q While he was on top of you, what was he doing?
A He tried to insert his penis to my vagina.
Q When he was trying to insert his private part to your private part, what
happened?
A His penis touched my vagina.
FISCAL CASTILLO:
May I request Your Honor, that the Tagalog word "Ang kanyang pag-aari ay
lumapat sa aking pag-aari".
Q What happened next?

Felipa Baon, on the other hand, declared:

"Q When Josefina Baon asked your help and the first time you see (sic) her at
that morning, what was her physical condition?
A She was lying in front of the window.
Q And what did she tell you if she told you anything?
A Josephine Baon told me that the accused forcibly enter her room and placed
himself on top of her and the penis of the accused was made to touch
the vagina for several times. 'Idinuldol ng idinuldol and kanyang
pag-aari sa harap ni Josephine Baon'." 29 (Emphasis supplied.)
To consummate rape, perfect or complete penetration of the complainant's private organ is not
essential. Even the slightest penetration by the male organ of the lips of the female organ, or labia of
the pudendum, is sufficient. 30 In People vs. Dela Pea, 31 this Court held that "the mere touching of
the external genitalia by a penis capable of consummating the sexual act constitutes carnal
knowledge." Josephine's testimony that appellant's organ touched the opening of her vagina can lead
to no other conclusion than that the appellant's manhood legally invaded, however slightly, the lips of
her private organ. Clearly, rape was consummated in this case. Because the sexual assault was
perpetrated by force and intimidation, Appellant Castromero is thus guilty of rape pursuant to Article
335 of the Revised Penal Code. cdasia
In relation to the charge that rape was complexed with the crime of serious physical injuries, we
stress the settled principle that a person who creates in another's mind an immediate sense of danger
that causes the latter to try to escape is responsible for whatever the other person may consequently
suffer. 32 In this case, Josephine jumped from a window of her house to escape from Appellant
Castromero; as a result, she suffered serious physical injuries, specifically a broken vertebra which
required medical attention and surgery for more than ninety days. This being the case, the court a quo
correctly convicted Appellant Castromero of the complex crime of rape with serious physical injuries.
WHEREFORE, the assailed Decision of the trial court is hereby AFFIRMED. However, the
indemnity in favor of Josephine Baon is hereby INCREASED to fifty thousand pesos (P50,000.00) in
line with current jurisprudence. 33
SO ORDERED.
Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.
||| (People v. Castromero, G.R. No. 118992, [October 9, 1997], 345 PHIL 653-666)

A Because of the movement sideways his penis touched my private parts." 27

(Emphasis supplied.)
On cross-examination, Eden stated further:
"Q Mrs. witness, you testified that while the accused was on top of you, he
tried to insert his penis, did the accused insert his penis on your
private part?

EN BANC

A Yes sir, the opening of my vagina was touched." 28 (Emphasis supplied.)

[G.R. No. 153559. June 8, 2004.]

77

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE,

GEORGE COMADRE and DANILO LOZANO, appellants.

DECISION

PER CURIAM p:
Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with
Multiple Frustrated Murder in an information which reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and by means of treachery and evident
premeditation, availing of nighttime to afford impunity, and with the use of an
explosive, did there and then willfully, unlawfully and feloniously lob a hand
grenade that landed and eventually exploded at the roof of the house of Jaime
Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT
AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy
Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to
suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the
latter victims, the accused commenced all the acts of execution that would
have produced the crime of Multiple Murder as consequences thereof but
nevertheless did not produce them by reason of the timely and able medical
and surgical interventions of physicians, to the damage and prejudice of the
deceaseds heirs and the other victims.
CONTRARY TO LAW. 1
On arraignment, appellants pleaded not guilty. 2 Trial on the merits then ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog,
Jimmy Wabe, Gerry Bullanday, 3 Rey Camat and Lorenzo Eugenio were having a drinking spree on
the terrace of the house of Roberts father, Barangay Councilman Jaime Agbanlog, situated in
Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace
listening to the conversation of the companions of his son. 4
As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George
Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions
looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school. 5
The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house.
Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by
shrapnel and slumped unconscious on the floor. 6 They were all rushed to the San Jose General

Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before
reaching the hospital. 7 TaDSHC
Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert
Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted
by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand
grenade explosion. 8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry
Bullanday sustained shrapnel injuries. 9
SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the
crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were
forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2
Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.
10
Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6,
1995, he was with his wife and children watching television in the house of his father, Patricio, and
his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised
when three policemen from the Lupao Municipal Police Station went to his house the following
morning of August 7, 1995 and asked him to go with them to the police station, where he has been
detained since. 11
Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the
brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident,
claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and
Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in
good terms with the Agbanlogs so he has no reason to cause them any grief. 12
Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at
home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio
and George Comadre that night and has not seen them for quite sometime, either before or after the
incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime
Agbanlog, Robert Agbanlog and Jimmy Wabe. 13
Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching
television with them during the night in question. 14 Josie Comadre, Georges wife, testified that her
husband could not have been among those who threw a hand grenade at the house of the Agbanlogs
because on the evening of August 6, 1995, they were resting inside their house after working all day
in the farm. 15
After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants of
the complex crime of Murder with Multiple Attempted Murder, 16 the dispositive portion of which
states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano
GUILTY beyond reasonable doubt of the complex crime of Murder
with Multiple Attempted Murder and sentencing them to suffer the
imposable penalty of death;

78

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay

jointly and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages
and P20,000.00 as moral damages;

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry
Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason
or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive
exists, and their testimony is thus worthy of full faith and credit.

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to

pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday
and Jaime Agbanlog P30,000.00 as indemnity for their attempted
murder.

The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the
defense of alibi to prosper, the accused must prove not only that he was at some other place at the
time of the commission of the crime but also that it was physically impossible for him to be at the
locus delicti or within its immediate vicinity. 20

Costs against the accused.

SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended.
Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret
and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when
it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the
quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it
did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime
charged. 17
Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo
Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially
executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared
that he suspected Antonio Comadre as one of the culprits because he saw the latter's ten year-old son
bring something in the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to give a more detailed
account of the incident, this time identifying Antonio Comadre as the perpetrator together with
George Comadre and Danilo Lozano.
A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements
pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano.
Moreover, it appears that the first statement was executed a day after the incident, when Jimmy
Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained.
Coherence could not thus be expected in view of their condition. It is therefore not surprising for the
witnesses to come up with a more exhaustive account of the incident after they have regained their
equanimity. The lapse of twenty days between the two statements is immaterial because said period
even helped them recall some facts which they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing event which unfolded
before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the
essential integrity of the evidence in its material whole, nor should they reflect adversely on the
witness credibility as they erase suspicion that the same was perjured. 18 Honest inconsistencies on
minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a
crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing
to the senses. 19

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlog's
residence, appellants were unable to give any explanation and neither were they able to show that it
was physically impossible for them to be at the scene of the crime. Hence, the positive identification
of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday
prevails over their defense of alibi and denial. 21
It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and
Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George
Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was
bright. 22
Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of
San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and
tried the case is not well taken.
It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial
judge might have died, resigned, retired, transferred, and so forth. 23 As far back as the case of Co
Tao v. Court of Appeals 24 we have held: The fact that the judge who heard the evidence is not the
one who rendered the judgment and that for that reason the latter did not have the opportunity to
observe the demeanor of the witnesses during the trial but merely relied on the records of the case
does not render the judgment erroneous. This rule had been followed for quite a long time, and there
is no reason to go against the principle now. 25
However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts show
that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and
Danilo Lozano merely looked on without uttering a single word of encouragement or performed any
act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano
provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of
conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven
beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual
cooperation rather than mere cognizance or approval of an illegal act is required. 26

79

A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as
clearly and convincingly as the commission of the crime itself. Mere presence of a person at the
scene of the crime does not make him a conspirator for conspiracy transcends companionship. 27

dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and
explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic
levels. 34

The evidence shows that George Comadre and Danilo Lozano did not have any participation in the
commission of the crime and must therefore be set free. Their mere presence at the scene of the crime
as well as their close relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for
illegal possession of firearms, or ammunitions and other related crimes under the amendatory law.
Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered.
Specifically, when the illegally possessed explosives are used to commit any of the crimes under the
Revised Penal Code, which result in the death of a person, the penalty is no longer death, unlike in
P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No.
1866 as amended by Section 2 of R.A. 8294 now reads:

Neither was it proven that their act of running away with Antonio was an act of giving moral
assistance to his criminal act. The ratiocination of the trial court that their presence provided
encouragement and sense of security to Antonio, is devoid of any factual basis. Such finding is not
supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy.
Time and again we have been guided by the principle that it would be better to set free ten men who
might be probably guilty of the crime charged than to convict one innocent man for a crime he did
not commit. 28 There being no conspiracy, only Antonio Comadre must answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended
the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the
means, method and form of execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) such means, methods and form of execution was deliberately and
consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize
any resistance, which may be put up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were
having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and
the tremendous impact of the explosion did not afford the victims sufficient time to scamper for
safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal
or resistance on their part. Treachery therefore attended the commission of the crime.
It is significant to note that aside from treachery, the information also alleges the use of an
explosive 29 as an aggravating circumstance. Since both attendant circumstances can qualify the
killing to murder under Article 248 of the Revised Penal Code, 30 we should determine which of the
two circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives, the latter shall be
considered as a qualifying circumstance. Not only does jurisprudence 31 support this view but also,
since the use of explosives is the principal mode of attack, reason dictates that this attendant
circumstance should qualify the offense instead of treachery which will then be relegated merely as a
generic aggravating circumstance. 32
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 33 which also considers
the use of explosives as an aggravating circumstance, there is a need to make the necessary
clarification insofar as the legal implications of the said amendatory law vis--vis the qualifying
circumstance of by means of explosion under Article 248 of the Revised Penal Code are concerned.
Corollary thereto is the issue of which law should be applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal
possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby

further amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Explosives. The penalty of prision mayor in its maximum period to
reclusion temporal and a fine of not less than Fifty thousand pesos
(P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s),
rifle grenade(s), and other explosives, including but not limited to pillbox,
molotov cocktail bombs, fire bombs, or other incendiary devices capable
of producing destructive effect on contiguous objects or causing injury or
death to any person.
When a person commits any of the crimes defined in the Revised Penal Code
or special law with the use of the aforementioned explosives, detonation agents
or incendiary devises, which results in the death of any person or persons, the
use of such explosives, detonation agents or incendiary devices shall be
considered as an aggravating circumstance. (shall be punished with the
penalty of death is DELETED.)
xxx xxx xxx
With the removal of death as a penalty and the insertion of the term . . . as an aggravating
circumstance, the unmistakable import is to downgrade the penalty for illegal possession of
explosives and consider its use merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and
explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance,
instead of a separate offense, illegal possession of firearms and explosives when such possession is
used to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the definition of murder under
Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in
committing any of the crimes defined in the Revised Penal Code. The legislative purpose is to do
away with the use of explosives as a separate crime and to make such use merely an aggravating
circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA
No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances
specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of explosion

80

in paragraph 12, evident premeditation in paragraph 13, or treachery in paragraph 16 of Article

14, the new aggravating circumstance added by RA No. 8294 does not change the definition of
murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this
case. Before the use of unlawfully possessed explosives can be properly appreciated as an
aggravating circumstance, it must be adequately established that the possession was illegal or
unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows
the same requisites in the prosecution of crimes involving illegal possession of firearm 35 which is a
kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present
case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution
to show that the possession by appellant of the explosive was unlawful. TIDHCc

It is worthy to note that the above requirement of illegality is borne out by the provisions of the law
itself, in conjunction with the pertinent tenets of legal hermeneutics.
A reading of the title 36 of R.A. No. 8294 will show that the qualifier illegal/unlawful . . .
possession is followed by of firearms, ammunition, or explosives or instruments. . . Although the
term ammunition is separated from explosives by the disjunctive word or, it does not mean that
explosives are no longer included in the items which can be illegally/unlawfully possessed. In this
context, the disjunctive word or is not used to separate but to signify a succession or to conjoin the
enumerated items together. 37 Moreover, Section 2 of R.A. 8294, 38 subtitled: Section. Unlawful
Manufacture, Sale, Acquisition, Disposition or Possession of Explosives, clearly refers to the
unlawful manufacture, sale, or possession of explosives.
What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of Section 3,
P.D. No. 1866, as amended by RA No. 8294 speaks of the use of the aforementioned explosives,
etc. as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc.
unlawfully manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the
first paragraph of the same section. What is per se aggravating is the use of unlawfully
manufactured. . . or possessed explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio Comadre had unlawfully
possessed or that he had no authority to possess the grenade that he used in the killing and attempted
killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable
doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of
aggravating circumstances for their application. 39
The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder
committed by means of explosion in accordance with Article 248(3) of the Revised Penal Code.
The same, having been alleged in the Information, may be properly considered as appellant was
sufficiently informed of the nature of the accusation against him. 40
The trial court found appellant guilty of the complex crime of murder with multiple attempted murder
under Article 48 of the Revised Penal Code, which provides:
Art. 48. Penalty for complex crimes. When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means of

committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo
principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes
committed. The rationale being, that the accused who commits two crimes with single criminal
impulse demonstrates lesser perversity than when the crimes are committed by different acts and
several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of
several separate and distinct offenses, yet these component criminal offenses should be considered
only as a single crime in law on which a single penalty is imposed because the offender was impelled
by a single criminal impulse which shows his lesser degree of perversity. 41
Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum period
irrespective of the presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case. 42 Applying the aforesaid provision of law, the maximum
penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the
death penalty.
Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659
insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the
effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at
bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the
amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages.
Pursuant to existing jurisprudence 43 the award of civil indemnity is proper. However, the actual
damages awarded to the heirs of Robert Agbanlog should be modified, considering that the
prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses. 44
The award of moral damages is appropriate there being evidence to show emotional suffering on the
part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with
prevailing judicial policy. 45
With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this award
inappropriate because they were not able to present a single receipt to substantiate their claims.
Nonetheless, since it appears that they are entitled to actual damages although the amount thereof
cannot be determined, they should be awarded temperate damages of P25,000.00 each. 46
WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San
Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio
Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and
sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of
P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and
likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants
Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy,

81

and they are hereby ordered immediately RELEASED from confinement unless they are lawfully
held in custody for another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code,
upon finality of this Decision, let the records of this case be forwarded to the Office of the President
for possible exercise of pardoning power. aEACcS

In the complex crime of parricide with unintentional abortion, the penalty to be imposed is that
provided for the graver offense which is reclusion perpetua to death. In the absence of any
aggravating circumstance, the penalty imposable is reclusion perpetua.

SYLLABUS

SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ ., concur.
Callejo, Sr., J ., pls. see my concurring and dissenting opinion.
||| (People v. Comadre, G.R. No. 153559, [June 8, 2004])

EN BANC
[G.R. No. 138453. May 29, 2002.]
PEOPLE OF THE PHILIPPINES, appellee, vs. MELECIO ROBIOS y
DOMINGO, appellant.

Solicitor General for appellee.

Public Attorney's Office for appellant.

SYNOPSIS
Appellant, charged with parricide with unintentional abortion, pleaded not guilty and interposed the
defense of insanity. He presented witnesses who testified that he was of unsound mental condition
after the commission of the crime. The trial court rendered judgment of conviction and imposed the
penalty of death on appellant. Hence, this automatic review.
For insanity to be exempting, the complete deprivation of intelligence must be at the time of, not
after, the commission of the crime.

1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; INSANITY; REQUIRES COMPLETE

DEPRIVATION OF INTELLIGENCE AT THE TIME OF COMMISSION OF THE CRIME.
Insanity presupposes that the accused was completely deprived of reason or discernment and freedom
of will at the time of the commission of the crime. A defendant in a criminal case who relies on the
defense of mental incapacity has the burden of establishing the fact of insanity at the very moment
when the crime was committed. Only when there is a complete deprivation of intelligence at the time
of the commission of the crime should the exempting circumstance of insanity be considered. Indeed,
when insanity is alleged as a ground for exemption from criminal responsibility, the evidence must
refer to the time preceding the act under prosecution or to the very moment of its execution. If the
evidence points to insanity subsequent to the commission of the crime, the accused cannot be
acquitted. TAacHE
2. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; IN CLAIMING INSANITY, BURDEN
IS UPON THE ACCUSED; REASON. The presumption of law always lies in favor of sanity and,
in the absence of proof to the contrary, every person is presumed to be of sound mind. Accordingly,
one who pleads the exempting circumstance of insanity has the burden of proving it. Failing this, one
will be presumed to be sane when the crime was committed. cCaSHA
3. ID.; ID.; ID.; ID.; CASE AT BAR. Insanity is a defense in the nature of a confession or
avoidance and, as such, clear and convincing proof is required to establish its existence. Indubitably,
the defense failed to meet the quantum of proof required to overthrow the presumption of sanity.
SAcaDE
4. CRIMINAL LAW; PARRICIDE WITH UNINTENTIONAL ABORTION; PENALTY IN
ABSENCE OF QUALIFYING CIRCUMSTANCE. Since appellant was convicted of the complex
crime of parricide with unintentional abortion, the penalty to be imposed on him should be that for
the graver offense which is parricide. This is in accordance with the mandate of Article 48 of the
Revised Penal Code. The law on parricide, as amended by RA 7659, is punishable with reclusion
perpetua to death. In all cases in which the law prescribes a penalty consisting of two indivisible
penalties, the court is mandated to impose one or the other, depending on the presence or the absence
of mitigating and aggravating circumstances. The rules with respect to the application of a penalty
consisting of two indivisible penalties are prescribed by Article 63 of the Revised Penal Code. Hence,
when the penalty provided by law is either of two indivisible penalties and there are neither
mitigating nor aggravating circumstances, the lower penalty shall be imposed. Considering that
neither aggravating nor mitigating circumstances were established in this case, the imposable penalty
should only be reclusion perpetua. Indeed, because the crime of parricide is not a capital crime per
se, it is not always punishable with death. The law provides for the flexible penalty of reclusion
perpetua to death two indivisible penalties, the application of either one of which depends on the
presence or the absence of mitigating and aggravating circumstances.

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DECISION

PANGANIBAN, J p:
Where the law prescribes a penalty consisting of two indivisible penalties, as in the present case for
parricide with unintentional abortion, the lesser one shall be applied in the absence of any
aggravating circumstances. Hence, the imposable penalty here is reclusion perpetua, not death.
The Case
For automatic review by this Court is the April 16, 1999 Decision 1 of the Regional Trial Court
(RTC) of Camiling, Tarlac (Branch 68), in Criminal Case No. 95-45, finding Melecio Robios 2 y
Domingo guilty beyond reasonable doubt of the complex crime of parricide with unintentional
abortion and sentencing him to death. The decretal portion of the Decision reads as follows: cEaACD
"WHEREFORE, finding accused Melecio Robios guilty beyond reasonable
doubt of the complex crime of parricide with unintentional abortion, this Court
hereby renders judgment sentencing him to suffer the penalty of DEATH by
lethal injection. He is also ordered to pay P50,000.00 as civil indemnity for the
death of the victim; and P22,800.00 as actual damages." 3
In an Information dated May 31, 1995, 4 appellant was accused of killing his pregnant wife and the
fetus inside her. It reads thus:
"That on or about March 25, 1995 at around 7:00 a.m. in Brgy. San Isidro,
Municipality of Camiling, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused Melecio Robios, did
then and there willfully, unlawfully and feloniously stab by means of a bladed
knife 8 inches long, his legitimate wife Lorenza Robios, who was, then six (6)
months pregnant causing the instantaneous death of said Lorenza Robios, and
the fetus inside her womb." 5
When arraigned on July 27, 1995, appellant, with the assistance of his counsel, 6 pleaded not guilty. 7
After due trial, the RTC convicted him.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) narrates the prosecution's version of how appellant
assaulted his pregnant wife, culminating in a brutal bloodbath, as follows:
"1. On March 25, 1995, at around seven o'clock in the morning, fifteen-year
old Lorenzo Robios was in his parents' house at Barangay San Isidro in
Camiling, Tarlac. While Lorenzo was cooking, he heard his parents, appellant
Melecio Robios and the victim Lorenza Robios, who were at the sala,
quarrelling.

"2. Lorenzo heard his mother tell appellant, 'Why did you come home, why
don't you just leave?' After hearing what his mother said, Lorenzo, at a distance
of about five meters, saw appellant, with a double-bladed knife, stab Lorenza
on the right shoulder. Blood gushed from where Lorenza was hit and she fell
down on the floor. Upon witnessing appellant's attack on his mother, Lorenzo
immediately left their house and ran to his grandmother's house where he
reported the incident.
"3. At around eight o'clock in the morning of the same day, Benjamin Bueno,
the brother of the victim Lorenza Robios, was at the house of his mother
Remedios Bueno at Barangay San Isidro. Benjamin, a resident of Barangay
Mabilang in Paniqui, Tarlac, went to his mother's house for the purpose of
informing his relatives that on the evening of March 24, 1995, appellant had
killed his uncle, Alejandro Robios, at Barangay Mabilang. However while
Benjamin was at his mother's house, he received the more distressing news that
his own sister Lorenza had been killed by appellant.
"4. Upon learning of the attack on his sister, Benjamin did not go to her house
because he was afraid of what appellant might do. From his mother's house,
which was about 150 meters away from his sister's home, Benjamin saw
appellant who shouted at him, 'It's good you would see how your sister died.'
"5. Benjamin sought the help of Barangay Captain Virgilio Valdez who called
the police station at Camiling, Tarlac. SPO1 Herbert Lugo and SPO3 Tirso
Martin, together with the other members of the PNP Alert Team at Camiling,
Tarlac, immediately went to Barangay San Isidro. The police, together with
Benjamin Bueno and some barangay officials and barangay folk, proceeded to
the scene of the crime where they saw blood dripping from the house of
appellant and Lorenza. The police told appellant to come out of the house.
When appellant failed to come out, the police, with the help of barangay
officials, detached the bamboo wall from the part of the house where blood
was dripping. The removal of the wall exposed that section of the house where
SPO1 Lugo saw appellant embracing [his] wife.
"6. Appellant and Lorenza were lying on the floor. Appellant, who was lying
on his side and holding a bloodstained double-bladed knife with his right hand,
was embracing his wife. He was uttering the words, 'I will kill myself, I will
kill myself.' Lorenza, who was lying on her back and facing upward, was no
longer breathing. She appeared to be dead.
"7. The police and the barangay officials went up the stairs of the house and
pulled appellant away from Lorenza's body. Appellant dropped the knife which
was taken by SPO3 Martin. Appellant tried to resist the people who held him
but was overpowered. The police, with the help of the barangay officials
present, tied his hands and feet with a plastic rope. However, before he was
pulled away from the body of his wife and restrained by the police, appellant
admitted to Rolando Valdez, a neighbor of his and a barangay kagawad, that
he had killed his wife, showing him the bloodstained knife.

83

"8. Upon examining Lorenza, SPO1 Lugo found that she was already dead.
She was pale and not breathing. The police thus solicited the services of a
funeral parlor to take Lorenza's body for autopsy. Appellant was brought to the
police station at Camiling, Tarlac. However, he had to be taken to the Camiling
District Hospital for the treatment of a stab wound.

"9. After the incident, Senior Inspector Reynaldo B. Orante, the Chief of
Police at Camiling, Tarlac, prepared a Special Report which disclosed that:
'The victim Lorenza Robios was six (6) months pregnant. She
suffered 41 stab wounds on the different parts of her body.
'That suspect (Melecio Robios) was under the influence of
liquor/drunk [who] came home and argued/quarreled with his wife,
until the suspect got irked, [drew] a double knife and delivered fortyone (41) stab blows.
'Suspect also stabbed his own body and [was] brought to the
Provincial Hospital.

that accused sometime[s] refused to respond in the counting of prisoners.

Sometimes, he stayed in his cell even if they were required to fall in line in the
plaza of the penal colony.
"DOMINGO FRANCISCO, another detention prisoner of the Tarlac Penal
Colony, testified that as the accused's inmate, he had occasion to meet and
mingle with the latter. Accused sometimes was lying down, sitting, looking, or
staring on space and without companion, laughing and sometimes crying.
"MELECIO ROBIOS, herein accused-appellant, testified that on March 25,
1995, he was in their house and there was no unusual incident that happened
on that date. He did not know that he was charged for the crime of parricide
with unintentional abortion. He could not remember when he was informed by
his children that he killed his wife. He could not believe that he killed his
wife." 9
In view of the penalty imposed by the trial court, this case was automatically elevated to this Court
for review. 10
The Issues
Appellant submits for our consideration the following assignment of errors:

'Recovered from the crime scene is a double blade sharp knife about
eight (8) inches long including handle.'
"10. During the trial of the case, the prosecution was not able to present the
doctor who conducted the autopsy on Lorenza Robios' body. Nor, was the
autopsy report presented as evidence." 8

"I
The court a quo erred in not giving probative weight to the testimony and
psychiatric evaluation of Dr. Maria Mercedita Mendoza finding the accusedappellant to be suffering from psychosis or insanity classified under
schizophrenia, paranoid type.

Version of the Defense

Appellant does not refute the factual allegations of the prosecution that he indeed killed his wife, but
seeks exoneration from criminal liability by interposing the defense of insanity as follows:

"II
The court a quo erred in disregarding accused-appellant's defense of insanity."
11

"Pleading exculpation, herein accused-appellant interposed insanity. The

defense presented the testimonies of the following:
"FEDERICO ROBIOS, 19 years old son of Melecio Robios, testified that
his parents had occasional quarrels[. B]efore March 23, 1995, his father told
him that he had seen a person went [sic] inside their house and who wanted to
kill him. On March 23, 1995, he heard his father told the same thing to his
mother and because of this, his parents quarreled and exchanged heated words.
"LOURDES FAJARDO, nurse of the Tarlac Penal Colony, testified that she
came to know Melecio Robios only in May to June 1996. Every time she
visited him in his cell, accused isolated himself, 'laging nakatingin sa malayo',
rarely talked, just stared at her and murmured alone.
"BENEDICT REBOLLOS, a detention prisoner of the Tarlac Penal Colony,
testified that he and the accused were seeing each other everyday from 6:00
o'clock in the morning up to 5:30 o'clock in the afternoon. He had observed

The Court's Ruling

The appeal is partly meritorious.
Main Issue
Insanity as an Exempting Circumstance
At the outset, it bears noting that appellant did not present any evidence to contravene the allegation
that he killed his wife. Clear and undisputed are the RTC findings on the identity of the culprit and
the commission of the complex crime of parricide with unintentional abortion. Appellant, however,
interposes the defense of insanity to absolve himself of criminal liability.
Insanity presupposes that the accused was completely deprived of reason or discernment and freedom
of will at the time of the commission of the crime. 12 A defendant in a criminal case who relies on the
defense of mental incapacity has the burden of establishing the fact of insanity at the very moment
when the crime was committed. 13 Only when there is a complete deprivation of intelligence at the
time of the commission of the crime should the exempting circumstance of insanity be considered. 14

84

The presumption of law always lies in favor of sanity and, in the absence of proof to the contrary,
every person is presumed to be of sound mind. 15 Accordingly, one who pleads the exempting
circumstance of insanity has the burden of proving it. 16 Failing this, one will be presumed to be sane
when the crime was committed.
A perusal of the records of the case reveals that appellant's claim of insanity is unsubstantiated and
wanting in material proof. Testimonies from both prosecution and defense witnesses show no
substantial evidence that appellant was completely deprived of reason or discernment when he
perpetrated the brutal killing of his wife.
As can be gleaned from the testimonies of the prosecution witnesses, a domestic altercation preceded
the fatal stabbing. Thus, it cannot be said that appellant attacked his wife for no reason at all and
without knowledge of the nature of his action. To be sure, his act of stabbing her was a deliberate and
conscious reaction to the insulting remarks she had hurled at him as attested to by their 15-year-old
son Lorenzo Robios. We reproduce Lorenzo's testimony in part as follows:

A: Yes, sir.
Q: And he was the one who informed you about your sister already dead?
A: Yes, Sir.
Q: Did you go near the house of your sister upon learning that she was already
dead?
A: No, sir.
ATTY. JOAQUIN:
Q: Why?
A: My brother-in-law was still amok, Sir.

"Q: Before your father Melecio Robios stabbed your mother, do you recall if
they talked to one and the other?

COURT:

A: Yes, sir.

A: Yes, sir, because he even shouted at me, sir.

ATTY. IBARRA:

Q: How?

Q: Did you hear what they talked about?

A: It's good you would see how your sister died, Sir." 18

A: Yes, sir.
Q: What did you hear?
A: 'Why did you come home, why don't you just leave?', Sir.
COURT:
In other words, you better go away, you should have not come back home.
ATTY. IBARRA:
Q: After you mother uttered those words, what did your father do?
A: That was the time that he stabbed my mother, sir." 17
Furthermore, appellant was obviously aware of what he had done to his wife. He was even bragging
to her brother, Benjamin Bueno, how he had just killed her. Bueno testified thus:
"ATTY. JOAQUIN:
Q: Now, from the house of your mother, can you see the house of your sister?
A: Yes, sir.
Q: When you arrived at the house of your mother, Lorenzo Robios was
already there in the house of your mother, is that right, Mr. Witness?

Q: Why do you know that he was amok?

Finally, the fact that appellant admitted to responding law enforcers how he had just killed his wife
may have been a manifestation of repentance and remorse a natural sentiment of a husband who
had realized the wrongfulness of his act. His behavior at the time of the killing and immediately
thereafter is inconsistent with his claim that he had no knowledge of what he had just done. Barangay
Kagawad Rolando Valdez validated the clarity of mind of appellant when the latter confessed to the
former and to the police officers, and even showed to them the knife used to stab the victim. Valdez's
testimony proceeded as follows:
"Q: And what did you discover when you went there at the house of Melecio
Robios?
A: When we arrived at the house of Melecio Robios, it was closed. We waited
for the police officers to arrive and when they arrived, that was the
time that we started going around the house and when we saw blood,
some of our companions removed the walling of the house and at
that time, we saw the wife of Melecio Robios lying down as if at
that moment, the wife of Melecio Robios was already dead, Sir.
Q: When you were able to remove this walling, what did you do?
A: We talked to Melecio Robios, Sir.
xxx xxx xxx
Q: What was he doing when you talked to him?

85

A: When we saw them they were both lying down and when we got near, he
said he killed his wife and showing the weapon he used, sir.
Q: What is that weapon?
A: Double bladed weapon, Sir.

for purposes of determining his criminal liability. In fine, this Court needs
more concrete evidence on the mental condition of the person alleged to be
insane at the time of the perpetration of the crimes in order that the exempting
circumstance of insanity may be appreciated in his favor. . . . ." 23 (Emphasis
supplied)

COURT:
What is that, knife?
A: It's a double bladed knife, sir.
xxx xxx xxx
COURT:
He admitted to you that he killed his wife?
A: Yes, sir.
Q: How did he say that, tell the court exactly how he tell you that, in tagalog,
ilocano or what?
A: What I remember Sir he said, 'Pinatay ko ni baket ko' meaning 'I killed my
wife,' Sir." 19
Clearly, the assault of appellant on his wife was not undertaken without his awareness of the atrocity
of his act.
Similarly, an evaluation of the testimonies of the defense witnesses hardly supports his claim of
insanity. The bulk of the defense evidence points to his allegedly unsound mental condition after the
commission of the crime. Except for appellant's 19-year-old son Federico Robios, 20 all the other
defense witnesses testified on the supposed manifestations of his insanity after he had already been
detained in prison.
To repeat, insanity must have existed at the time of the commission of the offense, or the accused
must have been deranged even prior thereto. Otherwise he would still be criminally responsible. 21
Verily, his alleged insanity should have pertained to the period prior to or at the precise moment when
the criminal act was committed, not at anytime thereafter. In People v. Villa, 22 this Court incisively
ratiocinated on the matter as follows:
"It could be that accused-appellant was insane at the time he was examined at
the center. But, in all probability, such insanity was contracted during the
period of his detention pending trial. He was without contact with friends and
relatives most of the time. He was troubled by his conscience, the realization
of the gravity of the offenses and the thought of a bleak future for him. The
confluence of these circumstances may have conspired to disrupt his mental
equilibrium. But, it must be stressed, that an inquiry into the mental state of
accused-appellant should relate to the period immediately before or at the
precise moment of doing the act which is the subject of the inquiry, and his
mental condition after that crucial period or during the trial is inconsequential

Indeed, when insanity is alleged as a ground for exemption from criminal responsibility, the evidence
must refer to the time preceding the act under prosecution or to the very moment of its execution. If
the evidence points to insanity subsequent to the commission of the crime, the accused cannot be
acquitted. 24
The testimony of Dr. Maria Mercedita Mendoza, the psychiatrist who conducted an examination of
the mental condition of appellant, does not provide much help in determining his state of mind at the
time of the killing. It must be noted that she examined him only on September 11, 1995, or six
months after the commission of the crime. 25 Moreover, she was not able to make a background
study on the history of his mental condition prior to the killing because of the failure of a certain
social worker to gather data on the matter. 26
Although Dr. Mendoza testified that it was possible that the accused had already been suffering from
psychosis at the time of the commission of the crime, 27 she likewise admitted that her conclusion
was not definite and was merely an opinion. 28 As correctly observed by the trial court, her
declarations were merely conjectural and inconclusive to support a positive finding of insanity.
According to the RTC:
"The testimony of Dr. Maria Mercidita Mendoza, who examined accused at the
National Center for Mental Health, Mandaluyong City, that at the time of
examination accused Melecio Robios was still mentally ill; that accused was
experiencing hallucination and suffering from insanity and it is possible that
the sickness have occurred eight (8) to nine (9) months before examination;
and in her opinion accused was suffering from delusion and hallucination. And
her opinion that at the time accused stabbed himself, he was not in his lucid
interval, is merely her conclusion. . . . Aside from being her opinion, she
conducted the mental, physical and neurological examinations on the accused
seven (7) months after the commission of the offense. That span of seven (7)
months has given accused an opportunity to contrive and feign mental
derangement. Dr. Mendoza had no opportunity to observed (sic) and assessed
(sic) the behavior of the accused immediately before, during and immediately
after the commission of the offense. Her finding is conjectural, inconclusive.
She did not conduct background examination of the mental condition of the
accused before the incident by interviewing persons who had the opportunity
to associate with him." 29
Hence, appellant who invoked insanity should have proven that he had already been completely
deprived of reason when he killed the victim. 30 Verily, the evidence proffered by the defense did not
indicate that he had been completely deprived of intelligence or freedom of will when he stabbed his
wife to death. Insanity is a defense in the nature of a confession or avoidance and, as such, clear and

86

convincing proof is required to establish its existence. 31 Indubitably, the defense failed to meet the
quantum of proof required to overthrow the presumption of sanity.

SO ORDERED.

Second Issue:

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Ynares-Santiago,
De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez and Corona, JJ., concur.

Proper Penalty

||| (People v. Robios y Domingo, G.R. No. 138453, [May 29, 2002], 432 PHIL 322-337)

Although the RTC correctly rejected the defense of insanity, it nonetheless erred in imposing the
death penalty on appellant. It imposed the maximum penalty without considering the presence or the
absence of aggravating and mitigating circumstances. The imposition of the capital penalty was not
only baseless, but contrary to the rules on the application of penalties as provided in the Revised
Penal Code. Even the Office of the Solicitor General concedes this error in the imposition of the
death penalty. 32
Since appellant was convicted of the complex crime of parricide with unintentional abortion, the
penalty to be imposed on him should be that for the graver offense which is parricide. This is in
accordance with the mandate of Article 48 of the Revised Penal Code, which states: "When a single
act constitutes two or more grave or less grave felonies, . . . , the penalty for the most serious crime
shall be imposed, . . . . "
The law on parricide, as amended by RA 7659, is punishable with reclusion perpetua to death. In all
cases in which the law prescribes a penalty consisting of two indivisible penalties, the court is
mandated to impose one or the other, depending on the presence or the absence of mitigating and
aggravating circumstances. 33 The rules with respect to the application of a penalty consisting of two
indivisible penalties are prescribed by Article 63 of the Revised Penal Code, the pertinent portion of
which is quoted as follows: cSCTID

EN BANC
[G.R. No. L-1935. August 11, 1949.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELADIO
BALOTOL, defendant-appellant.

Baltazar M. Villanueva for the appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Luis R. Feria for
the appellee.

"In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
xxx xxx xxx
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied." (Emphasis
supplied)
Hence, when the penalty provided by law is either of two indivisible penalties and there are neither
mitigating nor aggravating circumstances, the lower penalty shall be imposed. 34 Considering that
neither aggravating nor mitigating circumstances were established in this case, the imposable penalty
should only be reclusion perpetua. 35
Indeed, because the crime of parricide is not a capital crime per se, it is not always punishable with
death. The law provides for the flexible penalty of reclusion perpetua to death two indivisible
penalties, the application of either one of which depends on the presence or the absence of mitigating
and aggravating circumstances. 36
WHEREFORE, the Decision of the Regional Trial Court of Camiling, Tarlac (Branch 68) in Criminal
Case No. 95-45 is hereby AFFIRMED with the MODIFICATION that the penalty is REDUCED to
reclusion perpetua. Consistent with current jurisprudence, appellant shall pay the heirs of the victim
the amount of P50,000 as civil indemnity and P22,800 as actual damages, which were duly proven.
No pronouncement as to costs.

SYLLABUS
1. DOUBLE MURDER; WITNESSES; THEIR CREDIBILITY. Under the
circumstances of this case, it was held that the nature and the position of the two wounds of one
of the victims completely belie the theory of the defense. Both wounds pierced through the body
from back to front and could not have been inflicted by the accused in the manner claimed by
him, that is to say, in a face-to-face fight. Moreover, the story of the witnesses for the defense as
to how the other victim was wounded, namely, that the first victim accidentally hit him while he
was pursuing the accused after the latter had wounded him twice, is unbelievable, as no man
with two bolo wounds through his body, one through the abdominal region and the other through
the thorax, could possibly run in pursuit of another; these wounds were necessarily so fatal as to
cause instantaneous death.

DECISION

OZAETA, J p:

87

This is an appeal from a sentence of the Court of First Instance of Samar convicting
the appellant of double murder and sentencing him to suffer life imprisonment and to indemnify
the heirs of the deceased Potenciano Sabasido and Bernardino Lacambra in the sum of P2,000,
respectively, and to pay the costs.
In 1941 the deceased Potenciano Sabasido wounded the appellant. He was prosecuted
for less serious physical injuries, pleaded guilty, and was sentenced to suffer fifteen days of
imprisonment.
On the afternoon of May 24, 1942, the appellant saw Potenciano Sabasido for the first
time since the latter was released from jail, at a cockpit in the barrio of Silaga, municipality of
Santa Rita, Samar. According to the witnesses for the prosecution Sabasido was standing outside
the ring close behind Bernardino Lacambra with his two hands holding the shoulders of the
latter, witnessing a cockfight. The appellant approached Sabasido from behind and stabbed him
with a bolo in the back. The weapon pierced thru the body of Sabasido at the abdominal region
and wounded Lacambra also. Sabasido fell face downward and the appellant stabbed him again
in the back near the right shoulder, the bolo again piercing thru his body. Sabasido died
instantaneously and Lacambra, seven days later.
The appellant admits having caused the death of Potenciano Sabasido but denies
having wounded Bernardino Lacambra. "I do not know who caused the wound of Bernardino
Lacambra," he testified. According to him, while he was walking around the ring of the cockpit
looking for a bet, Potenciano Sabasido saw him and said to him: "So you are the one who filed a
complaint against me. I am going to kill you." At that very moment, he said, Sabasido stabbed
him and hit him on the left forearm above the elbow; that Sabasido again stabbed him and hit
him on his left buttock; that then he held the right arm of Sabasido with his left hand and
stabbed Sabasido on the right side of his body, "which is a little bit to the back. Sabasido
released my hand which was holding his right arm and then stabbed me from left to right. Then I
held his right wrist with my left hand and pushed same towards Sabasido's body and I thrust him
on his abdomen." After that he ran away, he said.
The accused called two witnesses, Celso Palo and Basilio Lacambra, to corroborate
his story. These two witnesses testified in substance to the same effect as the accused, except
that they added that it was the deceased Potenciano Sabasido who wounded Bernardino
Lacambra accidentally while the accused was running away and Sabasido was pursuing him.
The trial court did not believe the testimony of the accused and his witnesses and
believed that of the witnesses for the prosecution.
After a careful and thorough study of the record we agree with the trial court. The
nature and the position of the wounds of Potenciano Sabasido completely belie the theory of the
defense. Both wounds pierced thru the body from back to front and could not have been inflicted
by the accused in the manner claimed by him, that is to say, in a face-to-face fight. Moreover,
the story of the witnesses for the defense as to how Bernardino Lacambra was wounded, namely,
that Sabasido accidentally hit him while he was pursuing the appellant after the latter had
wounded him twice, is unbelievable. No man with two bolo wounds thru his body, one thru the
abdominal region and the other thru the thorax, could possibly run in pursuit of another. Those
wounds were necessarily so fatal as to cause instantaneous death. On the other hand, the
testimony of the witnesses for the prosecution as to how both Sabasido and Lacambra were
wounded, is confirmed by the nature and the position of the wounds of the two victims.

The crime committed by the appellant was double murder, defined and penalized in
article 248, in relation to article 48, of the Revised Penal Code. Article 48 provides that when a
single act constitutes two or more grave or less grave felonies, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period. The penalty for murder is
reclusion temporal in its maximum period to death. Since under article 48 this penalty must be
applied in its maximum period, the appellant should be sentenced to death. However, in view of
the lack of the necessary number of votes to impose the death penalty, we are constrained to
apply the penalty next lower in degree, which is life imprisonment.
The judgment is affirmed, with costs.
Moran, C.J., Paras, Feria, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ.,
concur.
||| (People v. Balotol, G.R. No. L-1935, [August 11, 1949], 84 PHIL 289-292)

EN BANC
[G.R. Nos. 41265 & 41266. July 27, 1934.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
JOSE BARBAS, defendant-appellant.

Jose Querubin Nera for appellant.

Acting Solicitor-General Pea for appellee.

SYLLABUS
1. CRIMINAL LAW; COMPLEX CRIME OF MALVERSATION THROUGH
FALSIFICATION OF PUBLIC DOCUMENTS; PENALTY. The defendant, acting as a
special deputy of the provincial treasurer, collected from two individuals the amount of P2 each
in payment of their cedula tax and delivered to them what he represented to be the
corresponding cedulas but, in fact, altered duplicates of cedulas. This money was clearly
received by the defendant in his capacity of a public officer, and constituted a valid payment of
the cedula tax of P and S, and the defendant who misappropriated it is guilty of malversation of
public funds.
2. ID.; ID.; ID. The evidence shows that the defendant altered the duplicates of the
cedulas in question as alleged in the informations. These duplicates are public documents, and
the alterations made by the defendant constituted falsification of public documents. The
evidence shows that the duplicates of the cedulas in question were falsified by the defendant in
order that he might sell them to P and S.

88

3. ID.; ID.; ID. The falsification was the means which the defendant availed
himself of in committing the crime of malversation. As the acts of the defendant constitute a
complex crime, the penalty applicable thereto is that corresponding to the more serious offense,
or the falsification of a public document.

DECISION

VICKERS, J p:
In these two cases the defendant was charged in the Court of First Instance of
Occidental Negros with the crime of malversation of public funds through the falsification of
public documents. In case No. 8857 (G. R. No. 41265) it was alleged:
"Que en o hacia el mes de abril de 1932, en el Municipio de Sagay,
Provincia de Negros Occidental, Islas Filipinas, el acusado arriba nombrado
siendo un delegado especial del tesorero provincial de esta Provincia para la
venta de Cedula personal y por razon de su cargo era responsable de los fondos
pblicos que tuviere en su poder recibio de Marciano Salazar la cantidad de P2
como pago de la cedula personal de dicho marciano Salazar correspondiente al
ao 1932 y el acusado con abuso de su cargo entrego a dicho Marciano Salazar
el duplicado de la Cedula F No. 1061367 falsificandolo ates, en la siguiente
forma: Que el original de dicha cedula fue expedido a Patricio Fenandez y en
dicho original asi como en el duplicado aparecia el nombre de Patricio
Fernandez despues de las palabras impresas 'This cerificates that'; que el
acusado con el objeto de poder de su cago borro en el duplicado de la cedula
No. 1061367, el nombre de patricio Fernandez que aparece despues de las
palabras 'This certifies that', y en su lugar escribio y puso el nombre de
marciano Salazar, y una vez conseguida de dicho marciano Salazar la cantidad
de P2, voluntaria e ilegalmente se aproppio para su uso y beneficio de dicha
suma en dao y perjuicio de la Provincia de Negros Occidental y del
Municipio de Sagay."
The information in case No. 8859 (G. R. No. 41266), except as to the means, reads the
same as the one quoted above.
After hearing the evidence, the trial judge found the defendant guilty of estafa through
he falsification of public documents, and sentenced him in each case to suffer an indeterminate
sentence of not less than six months and one day of prision correccional and not more than ten
years and one day of prision mayor, to indemnify Marciano Salazar and Policarpio Palmares,
respectively, in the sum of P2, and to pay the costs.
Appellant's attorney now alleges that the trial court erred in considering the acts
committed by Jose Barbas as estafa by means of the falsification of public documents, and in
not acquitting him, with the costs de oficio.

In our opinion there is no doubt as to the guilt of the defendant. The evidence clearly
shows that after selling the cedulas marked D and F to Angel Baflor and Patricio Fernandez,
respectively, the defendant sold and delivered Exhibits A and C, the duplicates of these two
cedulas, to Policarpio Palmares and Marciano Salazar respectively, and collected from each of
them P2. The defendant did not account for the money which he collected from Palmares and
Salazar.
Cedula certificates are prepared in triplicate. The original is delivered to the purchaser,
and the duplicate and triplicate, which are carbon copies of the original, are retained by the
internal revenue officer. Because the defendant accounted to the municipal treasurer of Sagay
for the cedulas received, the lower court found that the defendant was not guilty of malversation
but of estafa through the falsification of public documents. It is clear, however, that the
defendant, acting as a special deputy of the provincial treasurer, collected from Policarpio
Palmares and Marciano Salazar P2 each in payment of their cedula tax and delivered to them
what he presented to be the corresponding cedulas. This money was clearly received by the
defendant in his capacity of a public officer, and in our opinion constituted a valid payment of
the cedula tax of Palmares and Salazar, and the defendant who misappropriated it is guilty of the
malversation of public funds.
The evidence shows that the defendant altered the duplicates of the cedulas in question
as alleged in the informations. These duplicates are public documents, and the alterations made
by the defendant constituted the falsification of public documents. The evidence shows that the
duplicates of the cedulas in question were falsified by the defendant in order that he might sell
them to Palmares and Salazar. The falsification was therefore the means which the defendant
availed himself of in committing the crime of malversation. As the acts of the defendant
constitute a complex crime, the penalty applicable thereto is that corresponding to the more
serious offense, or the falsification of a public document. The corresponding penalty therefore is
the maximum degree of prision mayor, or from ten years and one day to twelve years of prision
mayor, and a fine of not more than P5,000. The medium degree of prision mayor in its
maximum period is from ten years, eight months, and one day to eleven years and four months.
In case No. 8857 (G. R. No. 41265) the defendant is sentenced to suffer an
indeterminate sentence of not less than one year of prision correccional and not more than ten
years, eight months, and one day of prision mayor, to pay a fine of P5, and to indemnify the
Government of the Philippine Islands in the sum of P2, without subsidiary imprisonment in case
of insolvency, and to pay the costs. The defendant is further sentenced to suffer the penalty of
perpetual special disqualification.
In case No. 8859 (G. R. No. 41266) the defendant is sentenced to suffer an
indeterminate sentence of not less than one year of prision correccional and not more than ten
years, eight months, and one day of prision mayor, to pay a fine of P5 and to indemnify the
Government of the Philippine Islands in the sum of P2, without subsidiary imprisonment in case
of insolvency, and to pay the costs.
As thus modified, the decisions appealed from are affirmed, with the costs against the
appellant.
Street, Abad Santos, Hull and Diaz, JJ., concur.
||| (People v. Barbas, G.R. Nos. 41265 & 41266, [July 27, 1934], 60 PHIL 241-244)

89

SYLLABUS

SECOND DIVISION
[G.R. No. 133580. July 20, 2001.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAXIMO
GENEBLAZO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS
An information for murder was filed against Maximino Geneblazo. Assisted by counsel, he pleaded
not guilty to the crime charged. Thereafter, the Regional Trial Court proceeded with the trial and
rendered a decision convicting the accused. Hence, this appeal. Accused-appellant alleged that he
killed the victim Domingo Opalsa in self-defense. It was, however, sufficiently established by the
prosecution that the victim and his companion were merely walking on the road when they were
pelted with stones by Geneblazo and his companions. Opalsa and company retaliated but ran away
when they saw that Geneblazo was about to draw his knife. Geneblazo pursued them and then
stabbed Opalsa when he caught up with the latter. It is quite apparent that it was not the victim who
committed the unlawful aggression but the accused-appellant himself. When accused-appellant
Geneblazo pursued the two men, it was then that he became the aggressor. Accused-appellant's own
testimony contradicted his claim of self-defense. According to him, as soon as he grabbed the knife
from the victim he stabbed the latter in the abdomen. Still he did not stop there. He again stabbed the
victim in the neck even in the presence of SPO1 Quiogue who arrived to pacify them. However, the
prosecution failed to prove that the qualifying circumstance of treachery was present in this case.
Treachery must be proven as clearly and as cogently as the crime itself. TcHCIS
The accused-appellant should be found guilty of homicide only. Based on the finding that homicide,
not murder, was committed, the penalty imposed upon accused-appellant should correspondingly be
lowered to reclusion temporal. There being no aggravating nor mitigating circumstance, the proper
imposable penalty should be reclusion temporal in its medium period. The decision of the Regional
Trial Court at Calauag finding accused-appellant guilty of the crime of murder was modified. He was
sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor
medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal
medium, as maximum. He was ordered to pay the heirs of the victim civil indemnity, actual damages
and moral damages.

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; ELEMENTS. Wellsettled is the rule that in interposing self-defense, the offender admits authorship of the killing. The
onus probandi is thus shifted to him to prove the elements of self-defense and that the killing was
justified; otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he must
rely on the strength of his own evidence and not on the weakness of the prosecution's evidence. For
self-defense to prosper, it must be established that: (1) there was unlawful aggression by the victim;
(2) that the means employed to prevent or repel such aggression was reasonable; and (3) that there
was lack of sufficient provocation on the part of the person defending himself.
2. ID.; ID.; ID.; ID.; UNLAWFUL AGGRESSION; DEFINED. Unlawful aggression contemplates
an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude there has to exist a real danger to the life or personal safety of the person
claiming self-defense. aTHCSE
3. ID.; ID.; ID.; ID.; ID.; NOT PRESENT WHEN ITS AUTHOR DID NOT PERSIST IN HIS
PURPOSE; CASE AT BAR. Assuming arguendo that the accused-appellant's version of the events
of the night in question is the truth and that the unlawful aggression emanated from the victim and his
companion who were drunk at the time, the aggression ceased to exist when the victim and his
companion ran away. There was no longer any real danger to the life or personal safety of the
accused. An act of aggression, when its author does not persist in his purpose, or when he
discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful
aggression warranting self-defense. When accused-appellant Geneblazo pursued the two men, it was
then that he became the aggressor.
4. ID.; ID.; ID.; NEGATED BY THE FLIGHT OF THE ACCUSED; CASE AT BAR. The
accused-appellant admitted that he recognized SPO1 Quiogue after he had stabbed the victim for the
second time. His taking flight and going into hiding instead of surrendering to SPO1 Quiogue on the
spot was highly evidentiary of guilt, and incompatible with his claim of self-defense. Flight negates
self-defense and indicates guilt.
5. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; CONSTRUED; NOT PRESENT IN
CASE AT BAR. Treachery must be proven as clearly and so cogently as the crime itself. The
essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself and thereby ensuring its commission without
risk to himself. When Opalsa and Obien were pelted with stones, they had the option of retaliating or
running away. They did both. First they threw stones at their attackers, and when they saw that the
accused-appellant was about to draw his knife they ran away. While the stoning incident was sudden,
the attack upon the victim was not. The victim, aware that the accused-appellant was armed with a
weapon, knew that the latter was of a mind to use the weapon and that the only thing he could do to
avoid being wounded was to outrun the accused-appellant. Unfortunately the accused-appellant
caught up with Opalsa and inflicted a fatal stab on him which led to his demise. We do not agree with
the trial court that the killing was attended by treachery that would make the accused-appellant guilty
of the crime of murder. We find the accused-appellant guilty of homicide only.

90

DECISION

BUENA, J p:
Accused-appellant Maximino Geneblazo appeals the decision of the Regional Trial Court at Calauag,
Quezon, Branch 63 in Criminal Case No. 2151-C, entitled "The People of the Philippines versus
Maximino Geneblazo", convicting him of murder and sentencing him to reclusion perpetua.
On October 16, 1992, an information was filed against Maximino Geneblazo charging him of murder
committed as follows:
"That on or about the 15th day of January 1988, at Barangay Pinagtalyeran,
Municipality of Calauag, Province of Quezon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a
bladed weapon, with intent to kill, and with treachery, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said
weapon one Domingo Opalsa, thereby inflicting upon the latter wounds on the
different parts of his body which directly caused his death.
"That the accused attacked and stabbed said Domingo Opalsa suddenly and
unexpectedly without giving the latter any opportunity to defend himself or to
escape.
"Contrary to law." 1
Upon arraignment on December 3, 1992, accused Maximino Geneblazo, assisted by counsel, pleaded
not guilty to the crime charged. The Regional Trial Court thereafter proceeded with the trial.
Culled from the records are the following:
Alex Obien, the first witness for the prosecution, testified that on January 15, 1988, at around 12:00
midnight he and Domingo Opalsa were walking along Quezon Street, Calauag, Quezon, bound for
home when Maximino Geneblazo and around six unknown companions stoned them. Obien and
Opalsa retaliated by also throwing stones at Geneblazo and company. However, upon seeing that
Geneblazo was about to draw his knife, they ran away.
Maximino Geneblazo caught up with Domingo Opalsa and stabbed the latter twice the first stab
landed on the left side of the body in the area of the armpit, while the second landed on the left side
of the face.
SPO1 Emmanuel Quiogue of the Philippine National Police, at Calauag, Quezon was at home on the
night in question. He heard a commotion outside. Peeping out the window he saw some men
throwing stones at each other. He got his gun and went outside. Noticing the chase which ensued, he
went after the men.
At the scene of the incident, SPO1 Quiogue saw two men almost locked in an embrace. He fired his
gun but the two did not draw apart so he stood between them so as to separate them. One of the men

fell to the ground while the person who was left standing stabbed him. Only his finger was hit. He
recognized the person who stabbed him as Maximino Geneblazo.
Thereafter SPO1 Quiogue, Obien and Barangay Captain Torres of Pinagtalyeran brought Opalsa to
St. Peter's Hospital where the latter was pronounced dead on arrival.
Maximino Geneblazo, who was the lone witness for the defense, testified that he was standing in
front of the market at about 12:00 midnight on January 15, 1988, when two men who were drunk
passed by. They challenged him to a fight. He recognized these two men as Adie Obien and Momoy
(Domingo Opalsa). When he refused to fight them, the latter threw stones and flowerpots at him.
Thereafter, Geneblazo chased them for he wanted to know why he was being stoned and because he
wanted to get even. EScAID
Geneblazo caught up with Momoy. When he was about to box the latter, Momoy drew out a knife.
Momoy struck the bridge of the nose and finger of Geneblazo with the knife. When Geneblazo fell
down he heard a gunshot. Momoy was about to stab Geneblazo again but when he heard the shot he
was startled so the latter was able to wrest the weapon from Momoy.
Geneblazo then stabbed Momoy in the abdomen. He was about to stab Momoy again when SPO1
Quiogue arrived on the scene. While SPO1 Quiogue was pacifying them, Geneblazo hit Momoy in
the neck. As he did not recognize SPO1 Quiogue he accidentally hit the latter's left hand with the
knife but when recognition dawned on him who SPO1 Quiogue was, he ran away and hid until his
surrender to a police officer Baloloy.

Salvacion Opalsa y Conohan, the mother of the victim, testified for the prosecution declaring that her
family incurred expenses in the total amount of P45,000.00 for the burial and wake of the victim. The
P45,000.00 is broken down as follows: P5,000.00 for funeral expense, P16,000.00 was spent during
the wake, P6,000.00 was expenses for the cemetery, P8,000.00 was spent to look for the accused, an
additional P5,000.00 for funeral services and P5,000.00 spent during the nine-day prayers for the
deceased after the interment. A certification from the Sutarez Funeral Homes stating that it rendered
funeral services to the late Domingo Opalsa in the amount of P5,000.00 2 and a handwritten list of
the expenses 3 were presented as evidence.
On February 2, 1998, the trial court rendered a decision convicting the accused the decretal position
of which reads:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of the
crime of Murder, the Court hereby sentences the said accused to suffer the
penalty of RECLUSION PERPETUA and to pay P50,000.00 as moral
damages and an additional P45,000.00 as actual damages to the heirs of
Domingo Opalsa and to pay the costs.
"SO ORDERED." 4
Hence, this appeal where accused-appellant assigns the following errors allegedly committed by the
trial court:
"I

91

"THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR THE CRIME OF MURDER, HAVING APPRECIATED
THE QUALIFYING CIRCUMSTANCE OF TREACHERY.
"II
"THE TRIAL COURT ERRED IN NOT CONSIDERING THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE INTERPOSED BY THE
ACCUSED-APPELLANT."
The appeal is meritorious in the sense that the penalty should be lowered.
Accused-appellant Maximino Geneblazo alleges that he killed the victim Domingo Opalsa in selfdefense.
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing.
The onus probandi is thus shifted to him to prove the elements of self-defense and that the killing
was justified; otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he
must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence.
For self-defense to prosper, it must be established that: (1) there was unlawful aggression by the
victim; (2) that the means employed to prevent or repel such aggression was reasonable; and (3) that
there was lack of sufficient provocation on the part of the person defending himself. 5
It was sufficiently established by the prosecution that the victim Domingo Opalsa and his companion
Alex Obien were merely walking on the road when they were pelted with stones by Maximino
Geneblazo and his companions; that Opalsa and Obien retaliated; that they ran away when they saw
that Geneblazo was about to draw his knife; that Geneblazo pursued them; that Geneblazo stabbed
Opalsa when he caught up with the latter.
It is quite apparent that it was not the victim who committed the unlawful aggression but the accusedappellant himself.
Unlawful aggression contemplates an actual, sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating attitude there has to exist a real danger to the
life or personal safety of the person claiming self-defense. 6
Assuming arguendo that the accused-appellant's version of the events of the night in question is the
truth and that the unlawful aggression emanated from the victim and his companion who were drunk
at the time, the aggression ceased to exist when the victim and his companion ran away. There was no
longer any real danger to the life or personal safety of the accused. An act of aggression, when its
author does not persist in his purpose, or when he discontinues his attitude to the extent that the
object of his attack is no longer in peril, is not unlawful aggression warranting self-defense. 7
When accused-appellant Geneblazo pursued the two men, it was then that he became the aggressor.
Finally, belying accused-appellant's claim of self-defense is his testimony that as soon as he grabbed
the knife from the victim he stabbed the latter in the abdomen. Still he didn't stop there. He again
stabbed the victim in the neck even in the presence of SPO1 Quiogue who arrived to pacify them.
Having divested the victim of his knife, the accused-appellant was placed at an advantage as he
already had control of the bladed weapon. The victim was therefore left unarmed and accused-

appellant Geneblazo did not testify nor is there anything on record to show that the victim tried to
grapple with him for possession of the knife. A third person (a police officer, at that) was present to
pacify them. There was really no need for the accused-appellant to stab the victim. And his doing so
revealed his murderous intent.
However, the matter of whether or not the deceased was the aggressor is factual. It is a settled rule
that the trial court is in a better position to ascertain the facts under the circumstances. In the absence
of any justifiable reason, this Court is bound to uphold the findings of the trial court. HTaIAC
The accused-appellant admitted that he recognized SPO1 Quiogue after he had stabbed the victim for
the second time. His taking flight and going into hiding instead of surrendering to SPO1 Quiogue on
the spot was highly evidentiary of guilt, and incompatible with his claim of self-defense. Flight
negates self-defense and indicates guilt. 8
The prosecution failed to prove that the qualifying circumstance of treachery was present in this case.
Treachery must be proven as clearly and as cogently as the crime itself. 9
The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting
victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission
without risk to himself. 10
When Opalsa and Obien were pelted with stones, they had the option of retaliating or running away.
They did both. First they threw stones at their attackers, and when they saw that the accusedappellant was about to draw his knife they ran away. While the stoning incident was sudden, the
attack upon the victim was not. The victim, aware that the accused-appellant was armed with a
weapon, knew that the latter was of a mind to use the weapon and that the only thing he could do to
avoid being wounded was to outrun the accused-appellant. Unfortunately the accused-appellant
caught up with Opalsa and inflicted a fatal stab on him which led to his demise. We do not agree with
the trial court that the killing was attended by treachery that would make the accused-appellant guilty
of the crime of murder. We find the accused-appellant guilty of homicide only.
The trial court ordered the accused-appellant to pay P50,000.00 as moral damages and an additional
P45,000.00 as actual damages to the heirs of Domingo Opalsa and to pay the costs. aTcSID
The award of actual damages amounting to P45,000.00 to the heirs of the victim cannot be sustained.
Said amount was allegedly incurred in the interment of the deceased. Except for the amount of
P5,000.00 that was supported by a certification/receipt, the sum of P40,000.00 was not substantiated
by competent evidence. The award of actual damages cannot rest on the bare allegation of the heirs of
the offended party. 11
In accordance with prevailing jurisprudence, civil indemnity in the amount of P50,000.00 should be
awarded to the heirs of the victim.
Based on our findings that homicide, not murder, was committed, the penalty imposed upon accusedappellant should correspondingly be lowered to reclusion temporal. There being no aggravating nor
mitigating circumstance, the proper imposable penalty should be reclusion temporal in its medium
period. Applying the Indeterminate Sentence Law, the minimum term is anywhere within the range of
prision mayor, or from 6 years and 1 day to 12 years, and the maximum within the range of reclusion
temporal in its medium period, or from 14 years, 8 months and 1 day to 17 years and 4 months.

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IN VIEW WHEREOF, the decision of the Regional Trial Court at Calauag, Quezon Br. 63, finding
accused-appellant guilty of the crime of murder, is MODIFIED. Instead, this Court finds accusedappellant Maximino Geneblazo guilty of the crime of Homicide, and sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum.
The accused is ORDERED to pay the heirs of the victim civil indemnity in the amount of
P50,000.00, actual damages of P5,000.00, moral damages in the sum of P50,000.00, and to pay the
costs.
SO ORDERED.
Bellosillo, Mendoza and De Leon, Jr., JJ., concur.

of a bolo, one Rodolfo Bacoling, causing injuries to said Rodolfo Bacoling

which resulted to his death, and all to the damage and prejudice of the heirs of
the said victim.
Contrary to law with the aggravating circumstance of nighttime sought by the
accused to afford impunity in the commission of the offense.
From the testimonial evidence of the prosecution, the following have been established:
On the night of February 3, 1993 at the Dupax del Norte, Nueva Vizcaya house of one Fausto Polon,
appellant, Rodolfo Bacoling (the deceased), James Buyagan, Felix Pallay, Lino Menzie and Renato
Hilario had a drinking spree. 3
Of the six, Pallay, Menzie and Hilario went home ahead, followed by Buyagan, leaving behind the
deceased, who was armed with a bolo, 4 conversing with appellant.

Quisumbing, J., is on official business.

||| (People v. Geneblazo, G.R. No. 133580, [July 20, 2001], 414 PHIL 103-112)

THIRD DIVISION
[G.R. No. 139530. February 27, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. PEPE BAUTISTA y
SABADO, appellant.

DECISION

CARPIO MORALES, J p:
On appeal is the January 26, 1999 Decision 1 of the Regional Trial Court of Nueva Vizcaya, Branch
30, finding appellant Pepe Bautista y Sabado guilty of murder in Criminal Case No. 613 and
sentencing him to suffer the penalty of reclusion perpetua.
The Information 2 filed on April 13, 1993 charged appellant as follows:
That on or about February 3, 1993, at Barangay Belance, Municipality of
Dupax del Norte, Province of Nueva Vizcaya, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill and qualified by treachery and evident premeditation, did then and there
wil[l]fully, unlawfully and feloniously, assault, attack and wound, with the use

Around 9 p.m., Polon's neighbor, Lorenzo Dumase, who was in his house, heard neighbors' dogs
barking. Apprehensive that somebody might be stealing his carabao, he opened the window of his
house upon which he saw, about 10 meters away, appellant running after the deceased.
Around midnight, Hilario, who lived near Polon's house, was awakened as appellant and his brother
Danilo knocked at his door. On letting the brothers in, he was told by appellant, who showed his
blood-stained shirt, that he killed the deceased. Danilo even brought out the blood-stained bolo. He
(Hilario) thus advised the two to go home, but they requested to be allowed to sleep at his house to
which he acceded.
At 5 a.m. of the following day, February 4, 1993, appellant and Danilo left Hilario's house, leaving
the bolo behind. 5 Hilario thus wrapped the bolo and turned it over to the police authorities. 6
At about 6 a.m. also on February 4, 1993, while Buyagan was cooking breakfast in his house,
appellant arrived and confessed to him that he killed the deceased, drawing Buyagan to report the
matter to the police. 7
On February 5, 1993, an autopsy was performed on the deceased by Dr. Mary Ruth C. Reyes,
Municipal Health Officer of Dupax del Norte, Nueva Vizcaya. The autopsy report 8 dated February 9,
1993 indicated the cause of death of the deceased to be hemorrhagic shock due to head and neck
injuries secondary to multiple hacking wounds incised wounds in the head, face, neck and fingers,
and abrasion at the back.
As the sole witness on his behalf, appellant interposed self-defense. He gave the following tale:
During their drinking spree, the deceased "narrated many things about [appellant's] cousin" Lito
Vicente, including the hacking by the latter of the deceased's uncle. 9 Appellant reacted by saying that
he did not think that he had the "same attitude" as that of his cousin.
After their four companions had left ahead, appellant started to head for home too, but the deceased
followed him and badmouthed him, telling him not to run. As he looked back, he saw the deceased
unsheathe his bolo from its scabbard and raise it. He thus embraced him, grabbed the bolo, and asked
why he wanted to hack him. The deceased, however, picked up a stone and hurled it at him, albeit he
was not hit. He then ran, and as he again looked back, the deceased told him not to run as he was

93

going to kill him. The deceased eventually caught up with him, so he confronted him and struck him
with his (the deceased's) own bolo. 10
Finding for the prosecution, the trial court rendered the decision 11 subject of the present appeal
convicting appellant of murder and disposing as follows:

victim and in that position of the victim with his back fronting the accused, the
latter hacked the victim. 13
Circumstances qualifying a killing to murder, such as treachery, must be proven as indubitably as the
crime itself. 14

WHEREFORE, premises considered, finding the accused, Pepe Bautista y

Sabado, GUILTY beyond reasonable doubt of the crime of Murder defined and
penalized under Article 248 of the Revised Penal Code, he is hereby sentenced
to suffer the penalty of RECLUSION PERPETUA.

For treachery to be appreciated, two essential elements must concur: (1) the employment of means of
execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the
deliberate or conscious adoption of the means of execution. What is decisive is that the execution of
the attack makes it impossible for the victim to defend himself or retaliate. 15

He is likewise ordered to pay the heirs of the victim the amounts of Thirty Two
Thousand, Three Hundred Ninety Seven Pesos (P32,397.00) as actual expenses
and Fifty Thousand Pesos (P50,000.00) as mandatory death indemnity.

The records indicate that the deceased was aware of the impending danger. By the account of
Dumase, he saw appellant running after and chasing the deceased. Appellant caught up with him,
however.

In his Brief, 12 appellant assigns to the trial court the following errors:
I.
THE HONORABLE COURT A QUO ERRED IN FINDING THE CRIME,
COMMITTED AS MURDER AND NOT SIMPLE HOMICIDE.
II.
THE HONORABLE COURT A QUO ERRED IN NOT FINDING THAT THE
COMMISSION OF THE CRIME WAS ATTENDED WITH THE MITIGATING
CIRCUMSTANCES OF: A) DRUNKENNESS; B) PROVOCATION; C)
THERE WAS UNLAWFUL AGGRESSION ON THE PART OF THE
DECEASED; D) AND IN NOT APPLYING THE INDETERMINATE
SENTENCE LAW IN IMPOSING THE PENALTY. DIcSHE
III.
THE HONORABLE COURT A QUO ERRED IN NOT FINDING THAT THE
CRIME COMMITTED IS ONE OF SIMPLY HOMICIDE AND NOT
MURDER. (Emphasis supplied)
In finding that appellant was guilty as charged, the trial court found that treachery qualified the
killing.

People v. Flores, 16 the facts of which are similar to those of the case at bar, teaches that:
. . . The mere fact that the victim was shot at the back while attempting to
run away from his assailant would not per se qualify the crime to murder.
In the case at bench, the evidence established that accused-appellant,
apparently drunk, emerged from the factory and fired upon the victim and his
companion who were just innocently passing by. Sensing an imminent danger
to their lives, the two started to run. However, the next gunshot hit the victim
at the back and caused his death. Clearly then, with the first gunshot, the
victim has been placed on guard and has, in fact attempted to flee. There could
thus be no treachery since, prior to the attack, the victim has been
forewarned of the danger to his life and has even attempted, albeit
unsuccessfully, to escape. Moreover, there was absolutely no evidence to
show that accused-appellant consciously and deliberately employed a
specific form of attack which would specially and directly and ensure its
commission without impunity. (Italics in the original; emphasis supplied).
This Court does not thus find treachery to have attended the stabbing of the deceased.
As for appellant's appeal for the appreciation of the mitigating circumstances of drunkenness,
sufficient provocation, and unlawful aggression arising from the deceased's alleged utterance of
provocative and insulting words about appellant's cousin's hacking of the deceased's uncle and the
deceased's following him and wanting to hack him, this Court denies the same.

The circumstance of treachery attended the commission of the offense by the

accused thereby qualifying the killing of Rodolfo Bacoling to Murder for how
else could the Court understand the chase instituted by the accused on the
victim fleeing or running away from him and the wounds struck by him from
behind the victim.

For drunkenness to be mitigating, the state of intoxication should be proved or established by

sufficient evidence. It should be such that it would diminish or impair the exercise of willpower or
the capacity to know the injustice of the act. 17 In the case at bar, what was merely established was
that appellant and his companions had a drinking spree. There was no showing that if appellant was
intoxicated, his willpower was diminished or impaired.

The helpless position of the victim when he was killed because he was then
being chased from behind by the accused was not accidental but intentionally
taken advantaged of by the accused as is evident from his resolution to really
kill the victim when he determinedly bridged the distance between him and the

Neither was there a showing of sufficient provocation. Appellant's claim that the deceased uttered
insulting and provocative words against appellant in the course of the drinking spree 18 was not,
however, corroborated by any of their companions. 19 In any event, it would appear that the alleged
utterance was made at the time or immediately before the commission of the crime.

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Nor was there unlawful aggression on the part of the deceased, given the following testimony of
appellant himself, quoted verbatim:
ATTY. GUILBERT:
Q: What transpired next when he said those words?
A: When I looked back, I heard a sound of a bolo while it was being
unsheathed from its scabbard?
Q: What happened when he unsheathed the bolo?
A: When I looked back and about to face him, I saw him raising his bolo and
so, what I did, I embraced him.
Q: After you embraced him what transpired?
A: I was able to grab the bolo from him.
Q: After you were able to grab the bolo from Mr. Bacoling, what did you do
next, if any?

A: I asked him, "why are you going to hack me" but what he did, he grope for
a stone.
Q: Was Mr. Bacoling able to hold a stone?
A: He was able to pick up a stone and hurled up me but I was not able to hit
by that stone.

For, even if appellant believed that the deceased did try to kill him when he saw him raise his
bolo, such aggression ceased when appellant succeeded in grabbing the bolo, and appellant was
not hit by the stone hurled at him. For at that juncture, appellant no longer faced any danger to
his life and limb.
When an unlawful aggression which has begun no longer exists, one making a defense has no right to
kill or even injure the former aggressor. 21
The commission of the crime not having been attended by any qualifying circumstance, appellant is
liable only for homicide, and absent any aggravating or mitigating circumstance, the penalty therefor
is reclusion temporal in its medium period, subject to the application of the Indeterminate Sentence
Law.
As to the civil aspect of the case, this Court affirms the award by the trial court of P50,000.00 civil
indemnity in accordance with prevailing jurisprudence, 22 as it does the award of P32,397.00
representing funeral expenses, 23 the incurrence of which was admitted by the defense. 24
WHEREFORE, the appealed decision is hereby AFFIRMED with MODIFICATION.
Appellant, Pepe Bautista y Sabado, is hereby found guilty beyond reasonable doubt of HOMICIDE
and is sentenced to suffer an indeterminate penalty of Twelve (12) Years of prision mayor as
minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal as
maximum, with the accessory penalties provided by law; and to pay the heirs of Rodolfo Bacoling
P50,000.00 as civil indemnity and P32,397.00 as actual damages.
SO ORDERED.
Vitug, Sandoval-Gutierrez and Corona, JJ., concur.
||| (People v. Bautista y Sabado, G.R. No. 139530, [February 27, 2004], 468 PHIL 173-182)

Q: How far was Mr. Bacoling when he threw the stone at you?
A: Witness pointing a distance which is around 7 meters).
Q: After Mr. Bacoling hurled the stone at you, what did you do next?

EN BANC

A: I ran directly upward, sir.

[G.R. No. 148912. September 10, 2003.]

Q: While you were running, what happened next?

A: I thought all the while that he was not following me. When I looked back,
he said: "Do not run because I am going to kill you" and when I
looked back, he was already near me.
Q: What happened when you saw that he was about to catch up with you?

PEOPLE OF THE PHILIPPINES, appellee, vs. TIMOTEO ESCARLOS, alias "Tomy," appellant.
The Solicitor General for plaintiff-appellee.
Bince Viray & Associates Law Offices for accused-appellant.

A: I confronted him, and I struck him with his own bolo.

SYNOPSIS

xxx xxx xxx 20 (Emphasis and underscoring supplied)

Appellant was found guilty of murder and was sentenced to death. Based on the evidence, there was a
heated exchange of words between appellant and the victim and the confrontation escalated to a

95

violent brawl. Invoking self-defense, the appellant claimed the victim pulled out a kitchen knife,
hence, to save his life, appellant grabbed the weapon and used it to stab the victim.
On appeal, the Supreme Court affirmed appellant's conviction but only for homicide. The Supreme
Court held: that appellant was not subjected to an unlawful aggression because the victim's act of
drawing a knife could not have placed the life of appellant in actual or imminent danger; that even
assuming that some danger did in fact exist, the unlawful aggression already ceased the moment
appellant disarmed the victim, thus, appellant became the unlawful aggressor when he stabbed the
victim; that the number and location of the wounds he inflicted upon the victim disprove selfdefense; that treachery had not been clearly established since there was an altercation prior to the
stabbing incident; and the brutal killing preceded by a casual confrontation was not the result of a
previous plot to end the life of the victim. DaCTcA
SYLLABUS
1. CRIMINAL LAW; REVISED PENAL CODE; JUSTIFYING CIRCUMSTANCES; SELFDEFENSE; UNLAWFUL AGGRESSION PRESUPPOSES ACTUAL, SUDDEN, UNEXPECTED
OR IMMINENT DANGER; MERE DRAWING OF A KNIFE BY VICTIM NOT AN IMMINENT
THREAT TO APPELLANT'S LIFE IN CASE AT BAR. Unlawful aggression presupposes actual,
sudden, unexpected or imminent danger not merely threatening and intimidating action.
Uncertain, premature and speculative was the assertion of appellant that the victim was about to stab
him, when the latter had merely drawn out his knife. There is aggression, only when the one attacked
faces real and immediate threat to one's life. The peril sought to be avoided must be imminent and
actual, not just speculative. ESCTIA
2. ID.; ID.; ID.; ID.; ID.; IMMINENCE OF DANGER CEASES THE MOMENT APPELLANT
DISARMS VICTIM; CASE AT BAR. Even assuming arguendo that there was an altercation
before the stabbing incident and that some danger did in fact exist, the imminence of that danger had
already ceased the moment appellant disarmed the victim by wresting the knife from the latter. After
the former had successfully seized it, there was no longer any unlawful aggression to speak of that
would have necessitated the need to kill the latter. Hence, appellant became the unlawful aggressor
when he stabbed the victim. ISEHTa
3. ID.; ID.; ID.; ID.; DISPROVED BY THE NUMBER AND LOCATION OF WOUNDS
INFLICTED UPON VICTIM; CASE AT BAR. The number and the location of the wounds
inflicted upon the victim were important indicia disproving self-defense. The claim of appellant that
only two of the four stab wounds were fatal is of no moment, inasmuch as the means he employed
was glaringly disproportionate to the perceived unlawful aggression. He admitted in his testimony
that he had stabbed the victim for the third time, even when the latter was about to fall. The means
employed by a person invoking self-defense must be reasonably commensurate to the nature and the
extent of the attack sought to be averted.

4. ID.; ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT PRESENT WHEN ASSAULT

WAS PRECEDED BY A VERBAL AND PHYSICAL SQUABBLE; CASE AT BAR. There is no
treachery when the assault is preceded by a heated exchange of words between the accused and the
victim; or when the victim is aware of the hostility of the assailant towards the former. In the instant
case, the verbal and physical squabble prior to the attack proves that there was no treachery, and that
the victim was aware of the imminent danger to his life. Moreover, the prosecution failed to establish
that appellant had deliberately adopted a treacherous mode of attack for the purpose of depriving the
victim of a chance to fight or retreat. DSATCI
5. ID.; ID.; ID.; EVIDENT PREMEDITATION; NO PREVIOUS PLOT TO END VICTIM'S LIFE
IN CASE AT BAR. The trial court correctly ruled that the qualifying circumstance of evident
premeditation was not present in the killing. Essentially, there is evident premeditation when the
execution of a criminal act is preceded by cool thought and reflection upon the resolution to carry out
a criminal intent within a space of time sufficient to arrive at a calm judgment. Obviously, the acts of
appellant in the present case can hardly be described as a product of reflective thought or deliberate
planning towards a decisive resolve to kill the victim. On the contrary, the confrontation that
escalated to a violent brawl was quite spontaneous, casual and incidental. Verily, the brutal killing
was not the result of a previous plot or sinister design to end the life of the victim. HCacDE
DECISION
PANGANIBAN, J p:
By interposing self-defense, herein appellant admits authorship of the killing. Thus, shifted to him is
the burden of proof showing that the killing was justified. Despite his failure to prove self-defense, he
may be convicted only of homicide, not murder, because of the inability of the prosecution to
establish any qualifying circumstance. Here, treachery is negated by the victim's awareness of the
impending attack.
The Case
For automatic review before the Court is the May 29, 2001 Decision 1 of the Regional Trial Court
(RTC) of Urdaneta, Pangasinan (Branch 46) in Criminal Case No. U-10792, finding appellant guilty
of murder beyond reasonable doubt and sentencing him to death. The dispositive portion of the
Decision reads as follows:
"WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused
Timoteo Escarlos of the crime of Murder and the Court sentences him to suffer the penalty of
DEATH; he is likewise ordered to indemnify the heirs of Antonio Balisacan the sum of P28,650.00 as
actual damages, the sum of P50,000.00 as moral damages and the further sum of P50,000.00 as
exemplary damages.
"The Clerk of Court is hereby ordered to prepare the mittimus.

96

"The Jail Warden, Bureau of Jail Management and Penology (BJMP) Urdaneta District Jail, Urdaneta
City, is hereby ordered to deliver the living body of Timoteo Escarlos to the National Bilibid Prisons,
Muntinlupa City, immediately upon receipt of this Decision." 2
The Information 3 dated August 29, 2000, charged appellant as follows:
"That on or about July 1, 2000, in the evening, at Barangay Dumanpot, Asingan, Pangasinan and
within the jurisdiction of this Honorable Court, the above-named accused, armed with a sharp pointed
bladed weapon, with deliberate intent to kill, treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault, hold and stab from behind Brgy. Kgd. Antonio
Balisacan, inflicting upon him the following injuries:
External Findings:
1. Stab wound located below right clavicle measuring 3 inches length and 8 inches depth.
2. Stab wound located at left armpit measuring 4 [inches] length and 6 inches depth.
3. Stab wound located at mid lumbar area measuring 3 inches length and 4 inches depth
4. Stab wound located between right first and second finger measuring 3 inches length.
Internal Findings:

benefit dance was his son Crisanto Balisacan, who attended the dance with his friends. Crisanto stood
beside the emcee, Ceasario Escarlos, appellant's brother. While Ceasario was calling the victim,
Antonio Balisacan, to come to the the stage as he was a kagawad, Crisanto heard the people at his
back shout 'Ay!'. Five (5) to six (6) meters at his back, with the place [illuminated] by a 50 to 100
watts bulb, he saw appellant stab his father, Antonio, several times. Crisanto was momentarily
shocked that he was not able to react. When appellant fled, Crisanto came to his senses and ran to
Antonio. Antonio was still alive so he brought him to Urdaneta Sacred Heart Hospital where he
expired a few minutes after arrival.
"Jesus Dismaya was also beside Ceasario when Antonio Balisacan's name was called. When he heard
people shout, he turned around and saw from a distance of four (4) meters appellant stabbing Antonio
four (4) times with a ten (10) inch-long knife. He then called Antonio's brother, [Marcelo] Balisacan.
"Within the vicinity was Antonio's brother, Marcelo Balisacan. He was in the Asingan-Urdaneta road,
which was about fifteen (15) meters outside Ulep's yard when he heard people shout and run from the
benefit dance. Wanting to know what was happening, he went to the benefit dance and saw that
Antonio was stabbed. He went near Antonio, hugged him, and asked who stabbed him. He replied,
'Tomy Escarlos.'
"Meanwhile around 9:30 of the same evening of July 1, 2000. SPO1 Patricio Badua was on duty. He
received a phone call about a stabbing incident in a benefit dance in Domampot, Asingan,
Pangasinan. When he went to the scene of the crime, the victim, Antonio Balisacan was already in the
hospital and appellant had already fled. He later learn[ed] that Antonio died.

1. Cutting of the upper and lower lobe of the right lung.

2. Cutting of the lower lobe of the left lung.

"Dr. Noemi Taganas conducted an autopsy on Antonio's body and found:

which injuries directly caused the death of said Brgy. Kgd. Antonio Balisacan, to the damage and
prejudice of his heirs.

External Findings:

"Contrary to Art. 248, Revised Penal Code in relation to Republic Act No. 7659." 4

1. Stab wound located below the right clavicle measuring 3 inches length (in) and 8 inches (in) depth.

During his arraignment on November 8, 2000, appellant, with the assistance of his counsel, 5 pleaded
not guilty to the charge. 6 After trial in due course, he was found guilty by the lower court. CHATcE

2. Stab wound located at left armpit measuring 4 inches length and 6 inches depth.

The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) narrates the factual version of the prosecution as follows:
"Around 9 o'clock in the evening of July 1, 2000, Antonio Balisacan went to the residence of Jaime
Ulep in Domampot, Asingan, Pangasinan to attend a benefit dance which was near the place. In the

3. Stab wound located at mid lumbar area measuring 3 inches length and 4 inches depth.
4. Stab wound located between right first and second finger measuring 3 inches length.
Internal Findings:
1. Cutting of the upper and lower lobe of the right lung.
2. Cutting of the lower lobe of the left lung.

97

"She later issued a death certificate. She stated in court that out of the four (4) stab wounds, Antonio's
second stab wound was fatal because the lungs were penetrated.
"Dr. Ronald Bandonil, an NBI medico-legal officer confirmed Taganas' autopsy report. He also
conducted an autopsy on the exhumed body of Antonio. In his autopsy he found that Antonio's first
and second wounds were fatal as these caused his death due to hypovolemic shock or massive blood
loss." 7 (Citations omitted)
Version of the Defense

and lying on the ground. There were at least 100 people then and might have seen the incident. He
noticed that Jesus Dismaya was there but the latter did not do anything. Cesario, after the incident
only stayed there for 3 minutes because he was looking for his three year-old daughter. In the
meantime, nobody touched the body of the victim." 8
The Ruling of the Trial Court
The trial court believed that the prosecution's evidence was sufficient to convict appellant of murder
qualified by treachery. It rejected his plea of self-defense, because there had been no unlawful
aggression on the part of the victim.

Appellant, on the other hand, relates his version of the facts in this manner:
"On the night of July 1, 2000, accused TIMOTEO ESCARLOS together with Rexie Yabes, Fredo
Ramos, Erwin Ramos, Rowena Alamigo and others were at the yard of Jaime Ulep, in Purok
Inanama, Domanpot Asingan, Pangasinan watching a benefit dance sponsored by Mr. & Mrs.
Organization. He was invited to buy lechon during the benefit dance.
"While thereat, Kgd. Antonio Balisacan who was then drunk, passed in front of accused and told him,
'You are here again to create trouble.' Accused was offended so he answered back saying 'Why do
you say that to me when I am not doing any trouble here.' Antonio Balisacan told him, 'OKINNAM
KETDI' (vulva of your Mother) and without warning boxed him. Timoteo was hit on the forehead,
which left a scar on his forehead about an inch above the right eyebrow. He intended to box back but
he noticed that the victim was pulling out a kitchen knife, so for fear of his life, he grabbed the
weapon from Antonio Balisacan and used the knife in stabbing the latter who was hit at the side
below the left armpit. He stabbed him twice and when the victim was about to fall down, he was able
to hit him for the third time.
"The weapon that Timoteo was able to get from Antonio was a kitchen knife about 10 to 12 inches.
Antonio drew the knife from his left side. Timoteo was able to get hold of the handle of the knife
when he grappled for the same from the victim, by taking hold of the knife with his right hand and
stabbed Antonio who was intending to stab him. Antonio was one (1) inch taller than accused.

". . . . The established facts revealed that the victim was one of the persons who filed a case of
malicious mischief against [appellant]. Said case was filed five (5) months before the instant case
happened. To the mind of the Court, the accused only found a way of avenging what he felt towards
the victim. He took advantage of that . . . particular time and place to let out his feelings in the
presence of his barangay mates. Such hidden grudge by the accused against the victim, established
the motive of the former.
xxx xxx xxx
"The second element of self-defense is also lacking. The nature, location and the number of wounds
inflicted on the victim belie and negate the accused['s] claim of self-defense. The post mortem
findings of the autopsy report showed that the victim sustained four stab wounds.
"If there is any truth to the accused[s] claim of self-defense, he would not have stabbed him several
times. [Worse,] the location of the wounds suggested that the accused was at the back of the victim
when the wounds were inflicted. It is therefore evident from the conduct of the accused that he was
determined to kill the victim and did not just act to defend himself. In view of the foregoing, it is no
longer necessary to discuss the third element." 9
Hence, this automatic review. 10

"Timoteo's testimony was corroborated by an eyewitness, CESARIO ESCARLOS, the brother of

Timoteo and president of the Mr. & Mrs. Association which sponsored the benefit dance on July 1,
2000. HTCISE

The Issues

"On the night of July 1, 2000, Cesario Escarlos was at the yard of Jaime Ulep. At about 9:00 o'clock
in the evening of the said date, he saw his brother Timoteo Escarlos together with Dexie Yabis
standing in a corner watching the dance. Several minutes later Kgd. Antonio Balisacan arrived and
later on while Cesario was on his way to urinate. He heard Antonio uttered to Timoteo 'ADDA CAYO
MANEN NGA AGARAMED TI NILOLOCON.' While relieving himself, he heard both Timoteo and
Antonio arguing and before he could get near and pacify them, he saw them wrestling with each
other. Many people were around but nobody pacified them. Next minute he saw Antonio bloodied

"1. The honorable trial court erred in appreciating treachery as a qualifying circumstance despite
failure of the prosecution to prove its attendance.

Appellant assigns the following alleged errors for our consideration:

"2. The honorable trial court erred in not finding that the testimony of the supposed eyewitnesses for
the prosecution as to the attendance of treachery is flawed and unworthy of belief.

98

"3. The honorable trial court erred in not giving exculpatory weight to the theory of self-defense
interpose[d] by the accused-appellant.

Q: What was that unusual incident you have seen and observed?
A: Stabbing incident, your Honor.

"4. The honorable trial court committed a grave and serious error in not finding that the victim [was]
the first to assault accused.

COURT:

"5. The honorable trial court erred in considering motive to establish the guilt of the accused.

Who was stabbed? TaCSAD

"6. The honorable court erred in convicting the accused-appellant of murder instead of acquitting him
or at most convicting him of homicide." 11

ATTY. VELASCO:

These issues boil down to four: (1) sufficiency of the prosecution's evidence, (2) viability of selfdefense, (3) appreciation of treachery as a qualifying circumstance, and (4) propriety of the penalty
and the damages imposed by the trial court.
The Court's Ruling
The appeal is partly meritorious.
First Issue:
Sufficiency of the Prosecution's Evidence
Although appellant did not directly raise the sufficiency of the prosecution's evidence as an issue, this
Court nonetheless deliberated on it motu proprio, because an automatic appeal in a criminal action
opens the whole case for review. Indeed, the strength of the prosecution's evidence must be passed
upon, especially in cases in which the death penalty has been imposed by the trial court. 12 We have
carefully examined the evidence for the prosecution and found that the fact of killing and the identity
of the killer were duly established beyond reasonable doubt.

Who was the victim of that stabbing?

A: My father.
Q: Who stabbed him?
A: Mr. Timoteo 'Tomy' Escarlos, the accused in this case, your Honor.
Q: Will you please focus your eyes within this Honorable Court and tell us whether the person you
said who stabbed your father by the name of Timoteo Escarlos is in the premises of this Honorable
Court?
A: Yes, sir.
Q: Will you please stand up and point to him?
A: The first one, your Honor (Witness is pointing unto a person seated on the bench inside the
courtroom, who, when his name was asked, he answered Timoteo Escarlos).
Q: How long have you been acquainted with the accused Timoteo Escarlos?

Prosecution Witness Crisanto Balisacan, son of the victim, testified on the stabbing incident, which
had occurred during a benefit dance on that fateful night of July 1, 2000. The witness' testimony is as
follows:

A: About ten years, your Honor.

"COURT:

A: Yes, your Honor.

You go to the main point.

Q: Considering that it is already about 9:20-9:30 o'clock in the evening when this stabbing incident
took place, how can you be sure that it was Timoteo Escarlos who stabbed your father?

ATTY. VELASCO:
While there, did you observe or did you see if there was any unusual incident that took place?
A: Yes, your Honor.

Q: He is also from Domampot?

A: There was . . . light, your Honor.

Q: What kind of light are you trying to say?
A: 50-100 watts bulb.

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xxx xxx xxx

A: I turned my head to my back.

ATTY. VELASCO:

Q: When you focused your attention and sight at your back, what happened next?

Did you see the spot where your father was actually stabbed?

A: I saw stabbing. I saw my father stabbed by Timoteo Escarlos, your Honor." 13 (Italics supplied)

A: Yes, sir.
Q: How far is this place where your father was stabbed in relation to the entrance of the dance arena.
A: About 5 to 6 meters at my back, your Honor.

Undoubtedly, the factual premises with regard to the killing and its commission by appellant are clear
and undisputed. He did not at all deny the allegations against him and openly admitted that he had
killed the victim. However, he interposes self-defense to seek his exoneration from criminal liability.

Q: And at that distance, what happened next while you were watching?

Second Issue:

A: I heard shouting.

Plea of Self-Defense

Q: These shouting that you heard, where did they come from?

In pleading self-defense, appellant asserts that it was the victim who initially approached and
assaulted him. Allegedly, the former had no choice but to defend himself under the circumstances. In
his testimony before the trial court, he described the confrontation that had led to the fatal killing as
follows:

A: From my back.
xxx xxx xxx
COURT:
What is that shouting about?
ATTY. VELASCO:
You heard shoutin[g], according to you, what did you hear, if you know?
A: About the incident.
COURT:

"Q: And while you were there at the yard of Jaime Ulep on that night of July 1, 2000 do you
remember having seen the person of one Kgd. Antonio Balisacan? cHaCAS
A: Yes, sir.
Q: And did he see you also?
A: Yes, sir.
Q: And did you happen to see him?

Tell [us] exactly what you heard[.]

A: When he passed in front of me he uttered in a loud voice 'you are here again to create trouble'
(ADDA KA MANEN DITOY NGA AGARAMID TI NILILOKO).

A: I heard shouting, 'Ay!'

Q: To whom did Antonio Balisacan utter these words?

Q: How many people shouted, 'Ay'?

A: I, sir.

A: Many, your Honor, because that was a benefit dance.

Q: And you said it was uttered in a loud manner, how far were you when he uttered these words?

ATTY. VELASCO:

A: More or less 3 to 4 meters, sir.

When you heard shoutin[g],what did you do, if any?

Q: What did you say?

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A: I was offended, sir.

xxx xxx xxx

Q: And do you know the physical appearance of Antonio Balisacan when he mentioned those words
to you?

COURT:
How many times did you stab him?

A: As if he was drunk, sir.

A: Two times but when he was about to fall down I was able to hit him once for the third time, sir.
Q: What made you say that as if he was drunk?
Q: You said that he drew a knife, where did he draw the knife?
A: I smell his breath, sir.
A: At his left side, sir.
Q: How did you react later when Antonio Balisacan uttered those words to you?
Q: What kind of weapon did he draw?
A: I said: 'Why do you say that to me when I am not doing any trouble here.'
A: I sized it to be a kitchen knife, sir.
Q: By the way, when Antonio Balisacan said those words to you, were you doing anything that time?
Q: Could you tell the Honorable Court the length of that knife to include the handle?
A: None, sir.
A: 10 to 12 inches, sir.
Q: What happened later on when you answered Brgy. Kgd. Antonio Balisacan?
Q: And how did you grapple for the possession of that knife?
A: He said: 'OKINNAM KETDI' (vulva of your mother) and then he boxed me, sir.
A: I was able to hold the handle of the kitchen knife, sir.
Q: Were you hit?
xxx xxx xxx
A: Yes, sir.
Q: What prompted you to stab him considering that you already got hold [of] the knife from him?
Q: What part of your body was hit?
A: This one on my forehead, sir. (Witness is pointing on his forehead).
Q: Were you injured?
A: Yes, sir.
Q: What injury did you suffer?
A: My forehead was injured (Witness is pointing a [to] a scar on his forehead about an inch at the
right above the right eyecrow).
Q: And what did you do after you were boxed by Antonio Balisacan?
A: When I intend to box him I noticed that he withdrew a balisong and I tried to grab and used the
balisong in stabbing, sir.

A: Yes, sir, because he intend[ed] to stab me, so, when I had possession of the knife I stabbed him,
sir." 14 (Italics supplied)
We stress that when the accused invokes self-defense, the burden of proof is shifted from the
prosecution to the defense. Thus, the latter assumes the responsibility of establishing this plea by
clear and convincing evidence. 15 Upon its shoulders rests the duty of proving, to the satisfaction of
the trial court, the justifying circumstance of self-defense. 16
The implications of pleading self-defense insofar as the burden of proof is concerned was explained
by the Court in Macalino v. People, 17 from which we quote: SIcCEA
"In pleading self-defense, petitioner in effect admitted that he stabbed the victim. It was then
incumbent upon him to prove that justifying circumstance to the satisfaction of the court, relying on
the strength of his evidence and not on the weakness of the prosecution. The reason is that even if the
prosecution evidence were weak, such could not be disbelieved after petitioner admitted the fact of
stabbing the victim." 18

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The accused who avers that the killing arose from an impulse of self-defense has the onus probandi
of proving the elements thereof. 19 The essential requisites of self-defense are the following: (1)
unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person
resorting to self-defense. 20 Verily, to invoke self-defense successfully, there must have been an
unlawful and unprovoked attack that endangered the life of the accused, who was then forced to
inflict severe wounds upon the assailant by employing reasonable means to resist the attack. 21

peril, there was no more unlawful aggression that would warrant legal self-defense on the part of
appellant. 26 Undoubtedly, the latter went beyond the call of self-preservation when he proceeded to
inflict excessive, atrocious and fatal injuries on the latter, even when the allegedly unlawful
aggression had already ceased.
Reasonable Necessity of the Means Employed to Prevent or Repel the Attack

Unlawful Aggression on the Part of the Victim

Appellant argues that in the heat of the encounter, he was not in a position to calculate or determine
the effects of his blows, and that it was nevertheless necessary for him to inflict them in order to save
his own life.

In the present case, appellant claims that there was unlawful aggression on the part of the victim
when the latter unceremoniously boxed him on the forehead in the heat of their argument. Appellant
adds that he had initially thought of hitting back when he noticed that the victim was pulling out a
kitchen knife. Hence, to save his life, the former grabbed the weapon and used it to stab the latter.
Appellant insists that under the circumstances, he was legally justified in using the knife to ward off
the unlawful aggression. For him to wait for the knife to be raised and to fall on him before acting to
defend himself would be asking too much, he argues.

As correctly held by the trial court, the nature, the number and the location of the wounds inflicted
upon the victim were important indicia disproving self-defense. 27 The claim of appellant that only
two of the four stab wounds were fatal is of no moment, inasmuch as the means he employed was
glaringly disproportionate to the perceived unlawful aggression. He admitted in his testimony that he
had stabbed the victim for the third time, even when the latter was about to fall.

The contentions of appellant are untenable. While the victim may be said to have initiated the
confrontation, we do not subscribe to the view that the former was subjected to an unlawful
aggression within the legal meaning of the phrase.
The alleged assault did not come as a surprise, as it was preceded by a heated exchange of words
between the two parties who had a history of animosity. Moreover, the alleged drawing of a knife by
the victim could not have placed the life of appellant in imminent danger. The former might have
done it only to threaten or intimidate the latter.
Unlawful aggression presupposes actual, sudden, unexpected or imminent danger not merely
threatening and intimidating action. 22 Uncertain, premature and speculative was the assertion of
appellant that the victim was about to stab him, when the latter had merely drawn out his knife. There
is aggression, only when the one attacked faces real and immediate threat to one's life. The peril
sought to be avoided must be imminent and actual, not just speculative. 23
Even assuming arguendo that there was an altercation before the stabbing incident and that some
danger did in fact exist, the imminence of that danger had already ceased the moment appellant
disarmed the victim by wresting the knife from the latter. After the former had successfully seized it,
there was no longer any unlawful aggression to speak of that would have necessitated the need to kill
the latter. Hence, appellant became the unlawful aggressor when he stabbed the victim. 24
When an unlawful aggression that has begun no longer exists, the one who resorts to self-defense has
no right to kill or even to wound the former aggressor. 25 To be sure, when the present victim no
longer persisted in his purpose or action to the extent that the object of his attack was no longer in

The means employed by a person invoking self-defense must be reasonably commensurate to the
nature and the extent of the attack sought to be averted, as held by the Court in People v. Obordo: 28
"Even assuming arguendo that there was unlawful aggression on the part of the victim, accusedappellant likewise failed to prove that the means he employed to repel Homer's punch was
reasonable. The means employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense. Accused-appellant claimed that the victim
punched him and ways trying to get something from his waist, so he (accused-appellant) stabbed the
victim with his hunting knife. His act of immediately stabbing Homer and inflicting a wound on a
vital part of the victim's body was unreasonable and unnecessary considering that, as alleged by
accused-appellant himself, the victim used his bare fist in throwing a punch at him." 29
Indeed, the means employed by a person resorting to self-defense must be rationally necessary to
prevent or repel an unlawful aggression. 30
Unlawful aggression is a conditio sine qua non for upholding the justifying circumstance of selfdefense. 31 Unless the victim has committed unlawful aggression against the other, there can be no
self-defense, complete or incomplete; on the part of the latter. If there is nothing to prevent or repel,
the other two requisites of self-defense will have no basis. 32

Third Issue:
Appreciation of Qualifying Circumstances

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The essence of treachery is the sudden and unexpected attack by an aggressor without the slightest
provocation on the part of the victim, thus depriving the latter of any real chance to put up a defense,
and thereby ensuring the commission of the attack without risk to the aggressor. 33 Treachery
requires the concurrence of two conditions: (1) the employment of a means of execution that gives
the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious
adoption of the means of execution. 34
There is no treachery when the assault is preceded by a heated exchange of words between the
accused and the victim; or when the victim is aware of the hostility of the assailant towards the
former. 35
In the instant case, the verbal and physical squabble prior to the attack proves that there was no
treachery, and that the victim was aware of the imminent danger to his life. 36 Moreover, the
prosecution failed to establish that appellant had deliberately adopted a treacherous mode of attack
for the purpose of depriving the victim of a chance to fight or retreat. 37
Certainly, the victim knew that his scuffle with appellant could eventually turn into a violent physical
clash. The existence of a struggle before the fatal blows were inflicted on the victim clearly shows
that he was forewarned of the impending attack, and that he was afforded the opportunity to put up a
defense. 38 Indeed, a killing done at the spur of the moment is not treacherous. Moreover, any doubt
as to the existence of treachery must be resolved in favor of the accused. 39

The trial court correctly ruled that the qualifying circumstance of evident premeditation was not
present in the killing. Essentially, there is evident premeditation when the execution of a criminal act
is preceded by cool thought and reflection upon the resolution to carry out a criminal intent within a
space of time sufficient to arrive at a calm judgment. 43 Obviously, the acts of appellant in the
present case can hardly be described as a product of reflective thought or deliberate planning towards
a decisive resolve to kill the victim. On the contrary, the confrontation that escalated to a violent
brawl was quite spontaneous, casual and incidental. Verily, the brutal killing was not the result of a
previous plot or sinister design to end the life of the victim.
The elements of evident premeditation are as follows: (a) the time when the accused decided to
commit the crime; (b) an overt act manifestly indicating that the accused clung to the determination
to commit the crime; and (c) the lapse of a period of time, between the determination and the
subsequent execution of the crime, sufficient to allow the accused an opportunity to reflect upon the
consequences of the act. 44 As found by the trial court, the prosecution failed to present sufficient
evidence to establish any of the foregoing requisites. To be sure, when there is no showing how and
when the plan to kill was decided or how much time had elapsed before the crime was carried out,
there is no evident premeditation. 45
In a criminal prosecution especially in cases involving the extreme penalty of death nothing but
proof beyond reasonable doubt of every fact necessary to constitute the crime with which the accused
is charged must be established. 46

In People v. Cario, 40 we modified the trial court's decision and ruled that the crime committed was
only homicide, because the qualifying circumstance of treachery had not been clearly established.
Thus, the Court declared:

Fourth Issue:

"However, we agree with the OSG's recommendation that appellant be held liable only for homicide,
not murder. In this case, the qualifying circumstance of treachery was not conclusively established.
For treachery to exist, the following requisites must be met: (1) that at the time of the attack, the
victim was not in a position to defend himself; and (2) that the offender consciously adopted the
particular means, method or form of attack employed by him. The facts show that Edmundo was
placed on guard concerning a possible assault by Pedro. First, there was a heated argument between
them at the place of the wake. Second, Edmundo was not unaware that he and Rolando were
followed outside by appellant, who did not adopt any means to conceal himself or hide his intention
of confronting Edmundo. Third, the abrasions and contusions on Edmundo's face show that Edmundo
was able to put up a fight before he was fatally stabbed. These circumstances negate the existence of
treachery in the commission of the offense." 41

Under Article 249 of the Revised Penal Code, the penalty for homicide is reclusion temporal. There
being neither mitigating nor aggravating circumstance, the appropriate penalty should be reclusion
temporal in its medium period. Appellant is likewise entitled to the benefits of the Indeterminate
Sentence Law.

As in People v. Cario, the Office of the Solicitor General recommended in this case that appellant be
convicted of homicide only, inasmuch as the qualifying circumstance of treachery had not been
sufficiently established. 42

WHEREFORE, the assailed Decision is MODIFIED. Appellant is held guilty of homicide and
sentenced to eight (8) years and one (1) day of prison mayor medium, as minimum; to fourteen (14)
years, eight (8) months and (1) day of reclusion temporal medium, as maximum. He shall also pay
the heirs of the victim the amounts of P50,000 as civil indemnity and P28,650 as actual damages,

Proper Penalty and Award of Damages

The trial court awarded moral damages in the amount of P50,000, but failed to award P50,000 as civil
indemnity for the death of the victim. Moral damages cannot be granted in the absence of proof
therefor. 47 Unlike in rape cases, this type of award is not automatically given in murder or homicide.
The prosecution was, however, able to prove actual damages in the sum of P28,650. The award of
exemplary damages should be omitted considering that no aggravating circumstance was duly
proven. 48

103

consistent with prevailing jurisprudence. 49 The grant of moral and exemplary damages is
DELETED. No costs. EHCcIT

identification of the appellant as the perpetrator of the crime are more than enough to sustain his
conviction.

SO ORDERED.

SYLLABUS

Davide, Jr., C.J., Bellosillo, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,

Austria-Martinez, Corona, Carpio Morales, Callejo, Sr. and Tinga, JJ., concur.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY

INCONSISTENCIES THAT REFER ONLY TO INCONSEQUENTIAL DETAILS AND NOT TO
THE CRUX OF THE CASE. Well-settled is the rule that "inconsistencies on minor and trivial
matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the
suspicion of rehearsed testimony." Moreover, the alleged inconsistencies refer only to inconsequential
details and not to the crux of the case that Gemanel saw accused-appellant gun down Castro.
Gemanel never wavered on this point even for a single moment. The consistency on the part of
Gemanel in identifying accused-appellant as the perpetrator of the crime makes him a credible
witness. His testimony cannot be discredited by a mere alibi and denial on the part of accusedappellant.

Puno and Azcuna, JJ., are on official business.

||| (People v. Escarlos, G.R. No. 148912, [September 10, 2003], 457 PHIL 580-602)

FIRST DIVISION
[G.R. No. 120646. February 14, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. APOLINAR DANDO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Leonardo G. Ragaza for accused-appellant.
SYNOPSIS
Accused-appellant Apolinar Dando was found guilty by the Regional Trial Court, Branch 33,
Siniloan, Laguna, of the crime of murder. This appeal principally assailed the testimony of
prosecution witness, Aldwin Gemanel, alleging that it was marred by inconsistencies and was
incredible, therefore, unworthy of belief. He also alleged that there was no proof showing that the
empty shells and slugs recovered at the scene of the crime were the same empty shells and slugs
submitted for ballistic examination. According to appellant, the relatives of the victim tampered with
the pieces of evidence making the same tainted or polluted, therefore unreliable.
The Supreme Court affirmed the Decision of the trial court convicting accused-appellant of the crime
charged. The Court found the alleged inconsistencies in the testimony of witness Aldwin Gemanel
referred only to inconsequential details and not to the crux of the case that Gemanel saw appellant
gunned down the victim. The Court's perusal of the records showed that Gemanel never wavered on
that point even for a single moment and his testimony cannot be discredited by a mere alibi and
denial on the part of the appellant. On the issue of evidence tampering, the Court upheld the
presumption of regularity of the ballistic examination report since appellant failed to prove by
convincing evidence any irregularity in the handling of the evidence by the police officers of the
particular pieces of evidence. The Court concluded that the corpus delicti and the positive

2. ID.; ID.; DEFENSE OF ALIBI; THE DISTANCE OF ONE-AND-A-HALF KILOMETERS DID

NOT RENDER IT PHYSICALLY IMPOSSIBLE FOR ACCUSED-APPELLANT TO BE AT THE
SCENE OF THE CRIME AT THE TIME IT WAS COMMITTED. Alibi is one of the weakest
defenses in criminal cases and it should be rejected when the identity of the accused is sufficiently
and positively established by the prosecution. Moreover, in order to overcome the evidence of the
prosecution, the accused must establish not only that he was somewhere else when the crime was
committed but also that it was physically impossible for him to have been at the scene of the crime at
the time it was committed. In the present case, accused-appellant failed to show that it was physically
impossible for him to be at the scene of the crime when it was committed. He even admitted that his
house was only about one-and-a-half kilometers away from the house of Millares, which was very
near the place where Castro was shot to death. Undoubtedly, the distance did not render it impossible
for accused-appellant to be at the scene of the crime at the time it was committed. Accusedappellant's defense of alibi must necessarily fail.
3. ID.; ID.; TESTIMONY OF A CHILD OF SOUND MIND IS LIKELY TO BE MORE CORRECT
AND TRUTHFUL THAN THAT OF OLDER PERSONS. Confronted with the inconsistent
statements of Millares and the straightforward and categorical testimony of Gemanel, which was
corroborated by that of Susana Masacupan, this Court believes and gives credence to the latter. When
he testified in court, Gemanel was then only thirteen (13) years old and a second year high school
student at Siniloan Public High School. Indeed, "the testimony of a child of sound mind is likely to
be more correct and truthful than that of older persons, so that once established that he has fully
understood the character and nature of an oath, his testimony should be given full credence."
4. CRIMINAL LAW; MURDER; ESTABLISHED IN CASE AT BAR; THE CORPUS DELICTI
AND THE POSITIVE IDENTIFICATION OF ACCUSED-APPELLANT AS THE PERPETRATOR
OF THE CRIME ARE MORE THAN ENOUGH TO SUSTAIN HIS CONVICTION. Accused-

104

appellant failed to prove by convincing evidence any irregularity in the handling by the police
officers of these particular pieces of evidence. The ballistic examination report is thus clothed with
the presumption of regularity. At any rate, the presentation of weapons (or the slugs and bullets, as in
this case) used and ballistic examination are not prerequisites for conviction. The corpus delicti and
the positive identification of accused-appellant as the perpetrator of the crime are more than enough
to sustain his conviction.
5. ID.; ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; ATTENDED THE COMMISSION
OF THE CRIME, SINCE THE ATTACK, ALTHOUGH FRONTALLY, WAS NO LESS THAN
SUDDEN AND UNEXPECTED, GIVING THE VICTIM NO OPPORTUNITY TO REPEL IT OR
OFFER ANY DEFENSE OF HIS PERSON. The essence of treachery is that the attack comes
without a warning and in a swift, deliberate and unexpected manner, affording the hapless, unarmed
and unsuspecting victim no chance to resist or escape. In this case, accused-appellant, whose face
was covered by a handkerchief, approached the victim, who was merely standing by the gate in front
of his house, and shot him. The victim was undoubtedly caught unaware and had no chance of
putting up any defense. Clearly, treachery attended the commission of the crime since the attack,
although frontally, was no less sudden and unexpected, giving the victim no opportunity to repel it or
offer any defense of his person. HTAIcD
DECISION
KAPUNAN, J p:
This is an appeal from a decision of the Regional Trial Court, Branch 33, Siniloan, Laguna finding
PO3 Apolinar E. Dando ("accused-appellant") guilty beyond reasonable doubt of murder. cdphil
The Information filed against accused-appellant reads:
That on or about 6:19 o'clock in the evening of November 20, 1991 at Barangay M. Pandeo,
Municipality of Siniloan, Province of Laguna and within the jurisdiction of this Honorable Court, the
above-named accused while conveniently armed with a deadly weapon (cal. 45) with intent to kill,
with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack assault and shoot several times one CESAR CASTRO y VALMONTE with the said weapon,
thereby inflicting upon him gunshot wounds on the vital parts of his body which directly caused his
death, to the damage and prejudice of the surviving heirs of the victim.
That the qualifying and aggravating circumstances of treachery, evident premeditation and abuse of
superior strength attended the commission of the crime.
CONTRARY TO LAW. 1

February 12, 1992, Judge Venancio M. Tarriela, the Presiding Judge of said branch, granted the
motion. 2 On May 14, 1992, this Court approved the change of venue and designated Judge Jose C.
Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to try and decide the case. 3
Accused-appellant filed a petition for bail 4 which was denied after hearing on the ground that the
evidence against accused-appellant is strong. 5 Accused-appellant then went to the Court of Appeals
via petition for certiorari questioning the denial of his petition for bail.
Subsequently, on account of another motion for inhibition, 6 filed by accused-appellant alleging that
a prosecution witness in the hearing for the petition for bail was related to a staff member of Branch
26, the case was re-raffled and transferred to Branch 28, RTC of Sta. Cruz, Laguna, presided by
Judge Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its decision dismissing accused-appellant's petition
questioning the denial of his motion for bail, for lack of merit. 7
During trial and after the prosecution witness had already rested its case, the Presiding Judge of
Branch 28, RTC of Sta. Cruz, Laguna, likewise, inhibited himself from further hearing the case when
accused-appellant questioned his impartiality because of his refusal to grant accused-appellant's
motion to recall prosecution witness Susana Masacupan to the witness stand as a hostile witness. 8
The case was transferred back to Branch 26, RTC of Laguna, then presided by Judge Pablo
Francisco. LLjur
On May 2, 1995, the trial court rendered its decision the dispositive portion of which reads:
WHEREFORE, this Court finds the accused Apolinar Dando guilty beyond reasonable doubt of the
crime of murder as charged in the information, qualified by treachery and committed with the
aggravating circumstances of use of craft or disguise and evident premeditation and hereby sentences
him to suffer the penalty of reclusion perpetua and to pay the heirs of Cesar Castro as follows:
a.) the sum of P50,000.00 as death indemnity;
b.) the sum of P1,628,000.00 for loss of earning capacity; and
c.) the sum of P35,974.00 as reimbursement for expenses incurred in the wake and burial of the
victim; and to pay the costs.
SO ORDERED. 9
The prosecution's account of the case as narrated in the brief of the Solicitor General is as follows:

On the same date, accused-appellant filed a motion for inhibition and for a change of venue of the
case because several staff members of Branch 33, RTC of Laguna were related to the victim. On

105

Prosecution witness Aldwin Gemanel testified that on November 20, 1991, he went to the house
located at Pandio Street, Siniloan, Laguna of his uncle, Angelito Millares, Jr. (Junior Millares) to
look for his (Gemanel's) father. Junior Millares' house was about 100 to 150 meters away from that of
the victim, Cesar Castro. Upon arrival at his uncle's place, a party was on-going as it was the birthday
of the former (p. 3, tsn, June 17, 1992). At the said party, gunshots were fired by appellant and Junior
Millares to celebrate the occasion (p. 4, tsn, October 20, 1992 and pp. 14-15, tsn, August 26, 1993).
After a few hours at the birthday party, Gemanel decided to go to his grandmother's house, a mere
three (3) houses away from his uncle's house (p. 5, tsn, June 17, 1992). On the way to his
grandmother's house, he saw appellant Apolinar Dando, sat on the side-car of a tricycle parked along
Pandio Street in front of Junior Millares' house and placed a white handkerchief over his face (p. 56, tsn, Ibid). Though puzzled by the action of appellant, Gemanel proceeded to his grandmother's
house and stayed there for almost an hour (pp. 20-21, tsn, September 22, 1993). When Gemanel went
out of the house, he saw appellant get off the tricycle with the handkerchief covering his face and
walk towards the direction of the town plaza (pp. 30-31, tsn, Ibid.). At that time, Gemanel followed
appellant and then he (Gemanel) entered a bakery to buy bread (pp. 28-29, tsn, Ibid). While inside the
bakery, Gemanel heard a shot, so he ran outside to look where the shot came from (p. 36, tsn, Ibid).
Thereupon, he saw appellant with the same white handkerchief covering his face, firing three (3)
more shots at Cesar Castro, who was standing on the street in front of his (Castro's) house. After the
fourth shot appellant ran towards the "paraanan" or alley, to the direction of the town plaza (pp. 3743, tsn, Ibid). cdll

the man until the latter stopped by victim Cesar Castro. Thereupon the man shot Cezar Castro and
when the latter fell down, the man continued on shooting at Cesar Castro two (2) or more shots. After
the additional shots, the man ran towards an alley (pp. 2-5, tsn, July 21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP, Siniloan, Laguna, testified that three (3)
slugs and three (3) empty shells were recovered from the crime scene on the night of November 20,
1991 (p. 6, tsn, October 5, 1992). LexLib
Josue Flores, property custodian of the PNP, Siniloan, Laguna, testified that he issued to appellant,
who is a member of PNP, Siniloan, Laguna, (one 1) service firearm, which was a caliber .45 pistol,
Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn, August 11, 1992).
Florentino Raada, a member of the Central Intelligence Service of Siniloan, Laguna, testified that he
received from the Siniloan, Laguna police station the following specimens:
one (1) slug .45 caliber ammunition;
three (3) pieces slug for .45 caliber ammunition;
three (3) pieces empty shells for a .45 caliber ammunition;
one (1) piece caliber Remington pistol with serial number 1945012.

Gemanel rushed home and told his mother what he had just witnessed (p. 53, tsn, September 22,
1993). His mother then went to the crime scene while he was left to tend their store (p. 54, tsn, Ibid).
When his mother came back after about ten (10) minutes, he confided to her that he saw appellant
shoot Cesar Castro (p. 54, tsn, Ibid.). His mother then advised him not to tell anyone. Then he went to
the crime scene for a closer look of the victim (p. 55, tsn, Ibid.).
The following day on November 21, 1991, Gemanel was fetched by police officers from his school
and was brought to the municipal building for questioning. The day after, on November 22, 1991, he
executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).
Gemanel further testified that he was present when a slug was recovered from the front yard of his
uncle's (Millares') house (p. 11, tsn, July 14, 1992). He personally saw the slug which was
subsequently handed to Celso Castro, son of Cesar Castro. He learned that the slug found was one of
those fired from the service pistol of appellant when the latter fired his gun during the birthday party
of his uncle (pp. 11-12, tsn, Ibid.).
Susan Masakupan, 29 years of age, married and a resident of Pandio Street, Siniloan, Laguna,
corroborated the testimony of Gemanel. She testified that on or about 6:00 o'clock in the evening of
November 20, 1991, while she was getting dry clothes hanging at their clothesline located at their
front yard, a man wearing a white polo shirt with designs and a pair of khaki pants and had a
handkerchief covering his face passed by. Surprised with the man's covered face, her gaze followed

and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20, tsn, August 11, 1992).
Raada further testified that one (1) slug of a .45 caliber pistol recovered from the body of the victim,
which was turned over to him by Arvee Castro, brother of the victim (pp. 27-28, tsn, Ibid.) has [sic]
sent together with the above specimens to the PNP crime laboratory for ballistic examination (p. 30,
tsn, Ibid.).
Susan R. Jalla, PNP officer and criminologist, testified that she conducted a ballistic examination on
the specimens submitted (Exhibits "H", "I", "J" and "K"; pp. 11-13, tsn, Ibid.).
She issued a certification (Exhibit "N") stating: ". . . microscopic examination, MS-1, MRS-1, MRS15 revealed the same individual characteristics as the test bullets and test cartridges, respectively
fired from the above-mentioned firearm" (p. 17, tsn, Ibid.)
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna, testified that she conducted a
postmortem examination on the cadaver of Cesar Castro. She issued an Autopsy Report (Exhibit "R"
and "R-1") finding that the victim sustained eleven (11) gunshot wounds (pp. 6-7, tsn, Ibid.) and that
one (1) bullet slug was extracted from his body (p. 12, tsn, Ibid.). 10

106

Accused-appellant, on the other hand, gave the following version of the incident: On November 20,
1991; he was a member of the Philippine National Police (PNP) with the rank of PO3 and detailed as
security to the mayor of Siniloan, Laguna. At around one o'clock in the afternoon of that day, he
arrived at the house of Junior Millares who was then celebrating his birthday. He participated in a
drinking spree up to three o'clock in the afternoon. On that occasion, there was no firing of a gun. He
did not bring his gun to the birthday party because he was not in a habit of bringing his gun when he
attended such occasions. 11 When he left the party, he went straight home and slept. He woke up at
around midnight because of an upset stomach and vomited. He went back to sleep and woke up the
second time in the morning of November 21, 1991, changed his clothes, ate his breakfast and went to
work at around eight o'clock in the morning. 12 It was only on November 22, 1991 that he learned
from his wife that the Chief of Police and the Mayor were looking for him and that he was a suspect
in the killing of Castro. After eating his supper, he went to the municipal building where the Chief of
Police informed him that he was a suspect in the killing of Castro and was placed under technical
arrest. He surrendered his firearm for ballistic examination to show that he had nothing to do with the
killing. Thereafter, he did not know what happened to the said firearm. 13

IV

The testimony of accused-appellant as to his whereabouts during the time the crime was committed
was supported by his wife Herminia Dando who testified before the trial court that on November 20,
1991 she went home at 4 o'clock in the afternoon to cook their supper. Less than an hour later, her
husband arrived, went to the sala and slept until the next morning. They had breakfast together and
after that they went to their respective places of work. 14

Accused-appellant assails the testimony of Aldwin Gemanel alleging that it was marred by
inconsistencies and was incredible, therefore, unworthy of belief. Among these inconsistencies,
according to accused-appellant, are:

Accused-appellant assigns the following errors committed by the trial court to wit:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF
PROSECUTION WITNESS ALDWIN GEMANEL THAT ACCUSED APPELLANT APOLINAR
DANDO WAS THE ASSAILANT WHO SHOT THE VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS AND SLUGS
SUBMITTED FOR BALLISTIC EXAMINATION WERE THOSE RECOVERED FROM THE
SCENE OF THE CRIME AND ONE SLUG FROM THE BODY OF THE VICTIM AND CAME
FROM THE SERVICE FIREARM OF THE ACCUSED APPELLANT.
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL EVIDENCE
CONSISTING OF EMPTY SHELLS AND SLUGS PRESENTED BY THE PROSECUTION AS
TAINTED OR POLLUTED, AND HIGHLY UNRELIABLE.

THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF ALDWIN

GEMANEL AND THE BALLISTIC EXAMINATION OF THE SERVICE FIREARM OF
ACCUSED APPELLANT CONSTITUTED PROOF BEYOND REASONABLE DOUBT OF THE
GUILT OF THE ACCUSED FOR THE CRIME OF MURDER. cda
V
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER AND IN SENTENCING HIM TO
SUFFER THE PENALTY OF RECLUSION PERPETUA AND TO PAY THE HEIRS THE SUM OF
P1,620,000.00 FOR LOSS OF EARNING CAPACITY OF THE VICTIM, AND OTHER
DAMAGES. 15
The first and third issues shall be dealt with together as they are interrelated.

1. Gemanel testified that there was a birthday party attended by accused-appellant in the house of his
(Gemanel's) uncle, Junior Millares, and there he saw accused-appellant pull out his gun and fire a
shot downward on the floor. However, Millares himself testified that accused-appellant merely gave
to him the gun and it was he (Millares) who fired two shots. Then he handed the gun to another guest,
Agustin Salinas, who likewise fired said gun twice and then it was returned to accused-appellant. 16

2. Gemanel testified that moments before the shooting of Castro, he saw accused-appellant in front of
the house of Millares putting a handkerchief to cover his face and then going inside the tricycle to
rest. However, during the summary examination by the Municipal Judge who conducted the
preliminary investigation, he testified that he saw accused-appellant on board the tricycle sleeping. 17
3. Gemanel testified that he was barely one house away from the place of the shooting when he heard
a shot. When he looked at the place where the shot came from, he saw a man already sprawled on the
ground and the man, whose face was covered by a handkerchief, fired two (2) more shots at the
victim and left passing through a pathway. In other words, there were three (3) shots fired. Later, he
changed his, testimony stating that there were four (4) shots fired. 18
4. Gemanel testified that after the shooting, he approached the victim then he went to his mother
telling her that Castro was shot without naming the assailant. He later testified that after the shooting,
he went home to his mother and revealed to her the identity of the assailant as Apolinar Dando. Then

107

he went back to the scene of the crime and saw that policemen were already investigating the
incident. When asked by the police investigator, he told him right then and there that it was accusedappellant who shot the victim. 19

A Yes, sir.

The foregoing inconsistencies are but minor details and they do not discredit the positive
identification of accused-appellant as the perpetrator of the crime. The testimony of Gemanel on the
events that transpired on November 20, 1991 was clear, straightforward and consistent. Thus:

A. To my uncle Junior's house, sir, where there was a drinking spree.

DIRECT-EXAMINATION BY FISCAL:

A: Yes, sir, it was my uncle Junior's birthday.

Q: On November 20, 1991, where were you?

Q: What was your purpose in going to the place of your uncle's birthday?

WITNESS:

A: I was going to look for my father, sir. cdasia

A: I was on Pandeo Street, Siniloan, Laguna, sir.

Q: Did you . . . while you were there, by the way, where is the house of your uncle located?

Q: In what particular place in Brgy. Pandeo? prLL

A On Pandeo Street, sir.

A: About the middle of that area, sir.

Q: How far from your house, how many houses apart?

Q: You were at the middle part of that area. Will you kindly tell to this Honorable Court your point of
reference as to the place where you were at the time?

A: About 15 houses, sir.

A: What I am saying is that I am at the middle of Pandeo Street, sir.

FISCAL:
Q: And when you said you were at the middle portion of Pandeo Street, will you tell this Honorable
Court the nearest house where you were at the time?
WITNESS:
A: Cesar Castro's house, sir.
Q: And what are you doing then?
A: None, Sir, I was then going to my grandmother's house.
Q: And were you able to proceed to the house of your grandmother?
A Yes, sir.
Q: But prior to proceeding to the house of your "lola" did you go to any place?

Q: Where?

Q: Do you know why there were a during spree at the time?

Q: What is the full name of your uncle Junior?

A: Junior Millares, sir.
Q: While you were there at the birthday celebration of your uncle Junior, what did you notice thereat?
WITNESS:
A: There was a firing of gun, sir.
Q: Do you know the person who fired his gun at the time?
A: Yes, sir, Polly Dando.
Q: Do you know Polly Dando personally?
A: Yes, sir.
Q: Do you know the real name of Polly Dando?
A: Yes, sir, Apolinario Dando.
Q: Where did you see Apolinario Dando fired his gun?

108

A: Under the table pointing downwards, sir.

Q: After that, what else happened?

Q: Do you know the caliber used by Dando?

A: I went out, sir.

ATTY. RAGAZA:

Q: Where did you go?

Incompetent your Honor.

A: On the street, sir.

COURT:

Q: Were you alone at the time? LLphil

Objection noted, if he knows.

A: Yes, sir.

WITNESS:

Q: While you were on the street, did you notice of any unusual incident?

A: Yes, sir.

A: Yes, sir.

Q: Will you tell this Honorable Court the caliber? cdphil

Q: What was that incident?

A: A .45 caliber, "yung lapad", sir.

A: I saw Polly boarded a tricycle, sir.

Q: Have you already seen a gun of that caliber?

Q: When you said Polly Dando boarded a tricycle, you mean to say Dando went somewhere else?

A: Yes, sir.

WITNESS:

Q: Where?

A: No, he merely sat on board a tricycle which was parked there, sir.

A: On TV and on posters, sir.

Q: This tricycle have a driver?

xxx xxx xxx

A: None, sir.

Q: After that, where did you go?

Q: What else did you notice?

A: I went to my grandmother, sir.

A: I saw Polly Dando placed a handkerchief over his face, sir.

Q: Where is the house of your grandmother located?

xxx xxx xxx

A: Also on Pandeo Street sir.

FISCAL:

Q: How far from the house of your uncle Junior?

Q: Do you know the color of the handkerchief?

A: Three houses away, sir.

A. Yes, sir, white with small drawings.

Q: What did you do in the house of your lola?

Q: Will you tell this Honorable Court the attire used by the accused Apolinario Dando?

A: I entered the house, sir.

A: He was wearing a white polo shirt, sir, and a khaki pants.

109

Q: After you saw Apolinar Dando sat on a tricycle and put a handkerchief on his face, what else
happened?

A: I was going to buy bread, sir.

Q: Were you able to buy bread?

WITNESS:
A: No, sir.
A: He merely rested for a short while, sir.
FISCAL:
Q: After that, what happened? llcd
Q: Where did you proceed after that? prLL
A: I left, sir.
A: I heard a shot, sir.
Q: You mean to say after you saw Apolinar sat on a tricycle and put a handkerchief on his face and
rested for a while, you went to your lola's house?'

Q: What did you do. . .

A: Yes, sir.

ATTY. RAGAZA:

Q: After that, where did you proceed?

I moved to strike out the answer for not being responsive.

A: I merely stayed on the street, sir.

COURT:

Q: And again, while there on the street, did you again notice any unusual incident?

Sustained.

A Yes, sir.

FISCAL:

Q: What was that incident?

Q: While you were at the bakery, what else happened?

A: Polly Dando got off the tricycle, sir.

WITNESS:

Q: Where did he go?

A: I heard a shot, sir.

A: Towards the plaza, sir.

Q: What shot did you hear?

Q: And what did you do?

A: A gun shot, sir.

A: I followed Polly, sir.

Q: When you heard that gunshot, what did you do?

Q: Up to what point did you follow him?'

A: I went beside the street, sir.

A: About 2 houses, sir.

Q: What did you find out?

Q: While following Dando, what happened next?'

A: I saw Cesar Castro already sprawled on the ground, sir.

A: I entered a bakery, sir.

Q: Was Cesar Castro alone at the time?

Q: What was your purpose in going to that bakery?

A: Yes, sir.

110

Q: And do you know what was the cause of Cesar's falling to the ground?

A: And during all the time that you were following Dando, was he wearing a handkerchief over his
face?

ATTY. RAGAZA:
Q: Yes, sir.
Incompetent, your Honor, he already saw Cesar already sprawled on the ground. LibLex
A: But you did not have much interest, that is why you stop following him and stopped at a bakery?
COURT:
Q: Yes, sir.
May answer. We will see the answer.
ATTY. RAGAZA:
WITNESS:
Q: And then you heard a shot?
A: No, sir.
WITNESS:
FISCAL:
A: Yes, sir.
Q: At that precise moment when you heard the gunshot and you go (sic) to the street to find out
where the shot came from, where was Apolinar Dando at the time?

Q: Exactly, where were you when you heard the first shot?

ATTY. RAGAZA:

A: In the bakery about to buy bread, sir.

There is no testimony that Apolinar Dando was present at the time.

Q: Where were you facing?

COURT:

A: Towards the bakery, sir.

There was no testimony that Apolinar Dando was there. The fiscal was asking where was Apolinar at
the time. He was not asking why he was there. He did not assume.

Q: Was there anybody attending to you in the bakery?

A: Yes, sir.

WITNESS:
Q: Now, you were merely waiting for bread that you would buy in that bakery?
A: I saw him walked a few steps and then fired his gun at Cesar, on his side, sir.
A: Yes, sir, when suddenly I heard a shot.
xxx xxx xxx
Q: How many shots did you hear while you were in the bakery?
Q: After you saw Apolinar for the second time at the sprawled body of Cesar, what else happened?
A: First, I heard one shot so I went out of the bakery and I saw Ka Cesar being shot, sir.
A: He ran and went towards an alley, "paraanan", sir. 20
Q: How many shots in all did you hear?
On cross-examination, Gemanel gave substantially the same testimony:
A: Three, sir. Cdpr
Q: In answer to the question of the Court in the last hearing, you said you saw Dando going to the
plaza and you followed him for a distance of about 2 houses, during the time you were following, did
you meet any person? LLjur
Q: None, sir.

Q: What was the interval between the first and the second shot?
A First, I was inside the bakery when I heard a shot so I immediately went out and saw Dando firing
two shots on Ka Cesar who was already lying on the ground, sir. 21

111

xxx xxx xxx

Q: Did you know where the shots came from?

ATTY. BALCE:

A: Yes, Your Honor.

Q: You heard a shot and you went out and stopped at this point marked by an "x"?

Q: Where?

A: Yes, sir.

A: From the house of Ka Cesar.

Q: And it was only a gunshot that you heard?

COURT:

A: On that moment, one.

Q: After hearing those shots, what did you observe, if any?

Q: Just after the shot, did you not hear any person crying out in panic?
A: Nobody, sir.

A: The person with his handkerchief covering his face, was running and entered an alley, "paraanan."
22

COURT:
Q: After that first shot, did you hear any other shot?
A: I heard, Your Honor.
COURT:
Q: How many shots did you hear after hearing the first shot?
A: Three to four shots, Your Honor.
ATTY. BALCE:
I move that the last answer be placed in tagalog.
A: "Mga tatlo o apat".
Q: What did you say?
A: "Tatlo po o apat".
ATTY. BALCE:
But your first answer that I heard was "tatlo bale apat." dctai
A: Yes, sir.
COURT:

Well-settled is the rule that "inconsistencies on minor and trivial matters only serve to strengthen
rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony."
23 Moreover, the alleged inconsistencies refer only to inconsequential details and not to the crux of
the case that Gemanel saw accused-appellant gun down Castro. Gemanel never wavered on this
point even for a single moment. The consistency on the part of Gemanel in identifying accusedappellant as the perpetrator of the crime makes him a credible witness. His testimony cannot be
discredited by a mere alibi and denial on the part of accused-appellant.
Alibi is one of the weakest defenses in criminal cases and it should be rejected when the identity of
the accused is sufficiently and positively established by the prosecution. 24 Moreover, in order to
overcome the evidence of the prosecution, the accused must establish not only that he was
somewhere else when the crime was committed but also that it was physically impossible for him to
have been at the scene of the crime at the time it was committed. 25 In the present case, accusedappellant failed to show that it was physically impossible for him to be at the scene of the crime when
it was committed. He even admitted that his house was only about one-and-a-half kilometers away
from the house of Millares, 26 which was very near the place where Castro was shot to death.
Undoubtedly, the distance did not render it impossible for accused-appellant to be at the scene of the
crime at the time it was committed. Accused-appellant's defense of alibi must necessarily fail.
As to the alleged inconsistency between the testimonies of Gemanel and that of Millares, we find the
testimony of Gemanel to be more credible since the inconsistency lies in the affidavit and testimony
of Millares himself. In his affidavit, Millares averred that he fired the gun first and then accusedappellant fired the gun twice. 27 In his testimony in court however, he (Millares) claimed that after
firing the gun, he gave the gun to Agustin Salinas. 28 Confronted with the inconsistent statements of
Millares and the straightforward and categorical testimony of Gemanel, which was corroborated by
that of Susana Masacupan, this Court believes and gives credence to the latter. Cdpr

112

When he testified in court Gemanel was then only thirteen (13) years old and a second year high
school student at Siniloan Public High School. Indeed, "the testimony of a child of sound mind is
likely to be more correct and truthful than that of older persons, so that once established that he has
fully understood the character and nature of an oath, his testimony should be given full credence." 29
In the second and third issues raised in his brief, accused-appellant opines that there is no proof
showing that the empty shells and slugs recovered at the scene of the crime were the same empty
shells and slugs submitted for ballistic examination. According to accused-appellant, the relatives of
the victim tampered with these pieces of evidence making the same tainted or polluted, therefore,
unreliable.
Other than these bare allegations, however, accused-appellant failed to prove by convincing evidence
any irregularity in the handling by the police; officers of these particular pieces of evidence. The
ballistic examination report is thus clothed with the presumption of regularity. At any rate, the
presentation of weapons (or the slugs and bullets, as in this case) used and ballistic examination are
not prerequisites for conviction. 30 The corpus delicti and the positive identification of accusedappellant as the perpetrator of the crime are more than enough to sustain his conviction.
Anent the first issue, accused-appellant contends that the trial court erred in convicting him for
murder and awarding in favor of the victim's heirs the sum of P1,620,000.00 for his loss of earning
capacity and other damages.
Article 248 of the Revised Penal Code reads:
ARTICLE 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period
to death 31 if committed with any of the following circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity. cdtai
xxx xxx xxx

The essence of treachery is that the attack comes without a warning and in a swift, deliberate and
unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or
escape. 32 In this case, accused-appellant, whose face was covered by a handkerchief, approached the
victim, who was merely standing by the gate in front of his house, and shot him. The victim was
undoubtedly caught unaware and had no chance of putting up any defense. Clearly, treachery
attended the commission of the crime since the attack although frontally, was no less sudden and
unexpected, giving the victim no opportunity to repel it or offer any defense of his person. 33
The trial court further established that there was evident premeditation and that accused-appellant
used "craft, fraud or disguise" in committing his dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle parked in front of the residence of
Angelito Millares, Jr., he did so not to rest or sleep there. He was there, with a handkerchief over his
face, lying in wait for Cesar Castro to come out and stand by the gate of his house as he customarily
did while taking a rest. And DANDO stayed inside the tricycle for a couple of hours, like an eagle
waiting for its prey. From the parked tricycle, DANDO could clearly see the gate of Cesar Castro's
house, 100 to 150 meters away. DANDO'S stay inside the tricycle lasted for about two (2) hours, a
sufficient time for him to reflect on the consequences of his plan to kill Cesar Castro. And when
Cesar Castro did finally come out, and stood there unarmed by the gate of his house, DANDO swiftly
swooped down on his prey and triggered the burst from his service firearm which snuffed the life of
his victim. 34
Given the foregoing attendant aggravating circumstances, the trial court properly sentenced accusedappellant to suffer the penalty of reclusion perpetua. However, the amount it awarded in favor of the
heirs of the victim should be modified in accordance with prevailing jurisprudence. LLjur
The trial court correctly awarded the amount of P50,000 as indemnity for the death for Cesar Castro.
Said amount is awarded, without need of further proof other than the death of the victim. 35 In
addition, the heirs are also entitled to receive a compensation for the loss of earning capacity of the
victim. The formula for computing the same as established in decided cases 36 is as follows:
Gross Necessary

5. With evident premeditation.

Net Earning = Life x Annual - Living

xxx xxx xxx

Capacity Expectancy Income Expenses

The life expectancy is equivalent to two thirds (2/3) multiplied by the difference of 80 and the age of
the deceased. 37 Since Castro was 47 years old at the time of his death, his life expectancy was 22
more years. 38 Celso Castro testified that his father earned P3,000.00 monthly or P36,000.00
annually from the sash factory. In addition, the victim's annual income from farming as found by the
trial court was P53,000.00. The gross annual income of the deceased was P89,000.00. Allowing for

113

necessary living expenses of fifty percent (50%) of his gross earnings, his total net earning capacity
amounts to P979,000.00. 39
As to the expenses actually incurred by the family of the victim for the wake and burial, Celso Castro
was able to prove during trial that they incurred the sum of P39,974.00. The amount of P35,974.00
awarded by the trial court as reimbursement of funeral expenses is, accordingly, increased to
P39,974.00.
WHEREFORE, premises considered, the decision of the trial court is hereby AFFIRMED with
MODIFICATION that accused-appellant shall pay the heirs of the victim the following amounts:
1. death indemnity in the amount of P50,000.00;
2. compensation for loss of earning capacity in the amount of P979,000.00; and cdll
3. reimbursement of funeral expenses in the amount of P39,974.00.
SO ORDERED.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering
she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight
months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her unborn child's.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on
parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.
The Case

||| (People v. Dando, G.R. No. 120646, [February 14, 2000], 382 PHIL 290-313)

For automatic review before this Court is the September 25, 1998 Decision 1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

EN BANC

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under
Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.

Davide, Jr., C.J., Puno, Pardo and Santiago, JJ., concur.

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages." 2

DECISION

The Information 3 charged appellant with parricide as follows:

PANGANIBAN, J p:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful aggression
no immediate and unexpected attack on her by her batterer-husband at the time she shot him.

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate
husband, with the use of a hard deadly weapon, which the accused had provided herself for the
purpose, [causing] the following wounds, to wit:

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

'Cadaveric spasm.

[G.R. No. 135981. January 15, 2004.]

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'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets
and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration
of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration
of the dura and meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.'
which caused his death." 4
With the assistance of her counsel, 5 appellant pleaded not guilty during her arraignment on March 3,
1997. 6 In due course, she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's
younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and
Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with
their two children, namely: John Marben and Earl Pierre.

check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc
when he saw appellant going out of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty
(50) meters behind the Genosas' rented house. Joseph, appellant and her children rode the same bus
to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating
from his house being rented by Ben and appellant. Steban went there to find out the cause of the
stench but the house was locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the
kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless
body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with
injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother
of Ben about his son's misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the
dead body as that of [her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station
at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together
with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with
a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in
one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one
and half (1) inches. It had an open end without a stop valve with a red stain at one end. The
bedroom was not in disarray.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary.
They each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before
reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel,
Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until
9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his
way home passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you'
to which Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive.
Arturo also noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at
the back of the house before the postmortem examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the
Information for parricide later filed against appellant. She concluded that the cause of Ben's death
was 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture
of the occipital [bone].'

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel,

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Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel
went home despite appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping
knife, cut the television antenna or wire to keep her from watching television. According to appellant,
Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her
around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed
his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by
the neck, and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a
three-inch long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe
as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom." 7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her husband's death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie
Bianca.
"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang;
they were classmates; and they were third degree cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother,
Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently,
soon thereafter, the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come
home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with
blood. Marivic left the house but after a week, she returned apparently having asked for Ben's
forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle.
Ben and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married
in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along,
Marivic became `already very demanding. Mrs. Iluminada Genosa said that after the birth of
Marivic's two sons, there were `three (3) misunderstandings.' The first was when Marivic stabbed
Ben with a table knife through his left arm; the second incident was on November 15, 1994, when
Marivic struck Ben on the forehead, 'using a sharp instrument until the eye was also affected. It was
wounded and also the ear' and her husband went to Ben to help; and the third incident was in 1995
when the couple had already transferred to the house in Bilwang and she saw that Ben's hand was
plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our
salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which
they went to 'Uniloks' and drank beer allegedly only two (2) bottles each. After drinking they
bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking
with Ben, after which he went across the road to wait 'for the runner and the usher of the masiao
game because during that time, the hearing on masiao numbers was rampant. I was waiting for the
ushers and runners so that I can place my bet.' On his way home at about 9:00 in the evening, he
heard the Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is
used by Ben to feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently
overheard by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill
me when I am innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her
and that Ben would always take her back after she would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben `even had a wound' on the right forehead. He had known the couple for only
one (1) year.

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"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed,
and sometimes beat her.
"These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after
she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben
would beat her or quarrel with her every time he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help
and through the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a
choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the
same night as that testified to by Arturo Busabos. 8 )
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the
window of his hut which is located beside the Genosa house and saw 'the spouses grappling with
each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic
Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter the room of the
children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00
the next morning. (Again, please note that this was the same night as that testified to by Arturo
Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel,
Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew
them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic
confided in him that Ben would pawn items and then would use the money to gamble. One time, he
went to their house and they were quarreling. Ben was so angry, but would be pacified 'if somebody
would come.' He testified that while Ben was alive 'he used to gamble and when he became drunk, he
would go to our house and he will say, 'Teody' because that was what he used to call me, 'mokimas
ta,' which means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben `would box his
wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to
his right breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They

searched in the market place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she
might be battered by her husband.' When they got to the Genosa house at about 7:00 in the evening,
Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk
'because of his staggering walking and I can also detect his face.' Marivic entered the house and she
heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the
house as Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple
'were very noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran
into her room and they locked the door. When Ben couldn't get in, he got a chair and a knife and
`showed us the knife through the window grill and he scared us.' She said that Marivic shouted for
help, but no one came. On cross-examination, she said that when she left Marivic's house on
November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS,
Isabel, Leyte. Marivic was his patient 'many times' and had also received treatment from other
doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6)
episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient
Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and
considered him an expert witness.'
xxx xxx xxx
'Dr. Caing's clinical history of the tension headache and hypertension of Marivic on twenty-three (23)
separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos
Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the
injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified
to examine the psychological make-up of the patient, 'whether she is capable of committing a crime
or not.'
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about
two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his
help to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic
to return in the morning, but he did not hear from her again and assumed 'that they might have settled
with each other or they might have forgiven with each other.'

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xxx xxx xxx

"Dra. Cerillo was not cross-examined by defense counsel.

"Marivic said she did not provoke her husband when she got home that night it was her husband who
began the provocation. Marivic said she was frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was
born prematurely on December 1, 1995.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the
crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, . . .
wilfully, unlawfully and feloniously attack, assault, hit and wound . . . her legitimate husband, with
the use of a hard deadly weapon . . . which caused his death.'

"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times,
but that Ben would always follow her and they would reconcile. Marivic said that the reason why
Ben was violent and abusive towards her that night was because 'he was crazy about his recent
girlfriend, Lulu . . . Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his
testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone
in Manila, rented herself a room, and got herself a job as a field researcher under the alias 'Marvelous
Isidro'; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of
her baby; and that she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that she did not
know what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her
wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and
dragged her towards the drawer when he saw that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the
foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the
time of the incident, and among her responsibilities as such was to take charge of all medico-legal
cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986. She was called by the
police to go to the Genosa residence and when she got there, she saw 'some police officer and
neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his
back to the door. He was wearing only a brief.
xxx xxx xxx
"Dra. Cerillo said that `there is only one injury and that is the injury involving the skeletal area of the
head' which she described as a `fracture'. And that based on her examination, Ben had been dead 2 or
3 days. Dra. Cerillo did not testify as to what caused his death.

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September
1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT
finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel. DSAEIT
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the
Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her `Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court
on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to
determine her state of mind at the time she killed her husband; and finally, to allow a partial reopening of the case a quo to take the testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only
qualified forensic pathologist in the country, who opined that the description of the death wound (as
culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating
with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's
URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert

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psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with
the copies of the TSN and relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito
L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own
private clinic and connected presently to the De La Salle University as a professor. Before this, she
was the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling
psychologist of the National Defense College. She has an AB in Psychology from the University of
the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD
from the U.P. She was the past president of the Psychological Association of the Philippines and is a
member of the American Psychological Association. She is the secretary of the International Council
of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a
member of the ASEAN [Counseling] Association. She is actively involved with the Philippine
Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families
involved in domestic violence and nullity cases. She was with the Davide Commission doing
research about Military Psychology. She has written a book entitled 'Energy Global Psychology'
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified
as an expert on battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked at about
500 cases over a period of ten (10) years and discovered that 'there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of `a lot of incidents of psychological abuse,
verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'
xxx xxx xxx

"Dra. Dayan testified that in her studies, `the battered woman usually has a very low opinion of
herself. She has a self-defeating and self-sacrificing characteristics. . . . they usually think very lowly
of themselves and so when the violence would happen, they usually think that they provoke it, that
they were the one who precipitated the violence, they provoke their spouse to be physically, verbally
and even sexually abusive to them.' Dra. Dayan said that usually a battered . . . comes from a
dysfunctional family or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very arrogant, very
hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot
of times they are involved in vices like gambling, drinking and drugs. And they become violent.' The
batterer also usually comes from a dysfunctional family which over-pampers them and makes them
feel entitled to do anything. Also, they see often how their parents abused each other so `there is a lot
of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes
her hope her husband will change, the belief in her obligations to keep the family intact at all costs
for the sake of the children.
xxx xxx xxx
"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering 'physical violence on both of
them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not
consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,'
the abuse occurs day in and day out, is long lasting and `even would cause hospitalization on the
victim and even death on the victim.'
xxx xxx xxx
"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of selfconfidence which we can see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person. And at the same time she still
has the imprint of all the abuses that she had experienced in the past.'
xxx xxx xxx

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"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for
nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then
thought of herself as a victim.

healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this . . . is very dangerous.'

xxx xxx xxx

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared
and testified before RTC-Branch 35, Ormoc City.

xxx xxx xxx

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine
Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of
psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After
that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna
Medical Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo
Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City
Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons.

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it
were real, although she is not actually being beaten at that time. She thinks 'of nothing but the
suffering.'

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy
from the Period 1954-1978' which was presented twice in international congresses. He also authored
'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise published
internationally and locally. He had a medical textbook published on the use of Prasepam on a ParkeDavis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally
`internalizes what is around him within the environment.' And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so macho; he shows his strong facade 'but in it
there are doubts in himself and prone to act without thinking.'

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology
deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed
Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty
thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of
his experience with domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become hard-headed and persistent. She has higher
sensitivity and her 'self-world' is damaged.

xxx xxx xxx

"Dr. Pajarillo emphasized that `even though without the presence of the precipator (sic) or the one
who administered the battering, that re-experiencing of the trauma occurred (sic) because the
individual cannot control it. It will just come up in her mind or in his mind.'
xxx xxx xxx
"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and
`primarily with knives. Usually pointed weapons or any weapon that is available in the immediate
surrounding or in a hospital . . . because that abound in the household.' He said a victim resorts to
weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left
on her but to act decisively.'
xxx xxx xxx

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"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two
(2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as
a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxx xxx xxx

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her
husband Marivic's mental condition was that she was 're-experiencing the trauma.' He said 'that we
are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic.
It will just come in flashes and probably at that point in time that things happened when the reexperiencing of the trauma flashed in her mind.' At the time he interviewed Marivic 'she was more
subdued, she was not super alert anymore . . . she is mentally stress (sic) because of the predicament
she is involved.'

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two
clinical psychologists, Drs. Natividad Dayan 10 and Alfredo Pajarillo, 11 supposedly experts on
domestic violence. Their testimonies, along with their documentary evidence, were then presented to
and admitted by the lower court before finally being submitted to this Court to form part of the
records of the case. 12

xxx xxx xxx

The Issues

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor.
Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened
trial a quo were elevated." 9

Appellant assigns the following alleged errors of the trial court for this Court's consideration:
"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on
the evidence adduced as to self-defense.

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed lying in bed asleep when Marivic smashed him with a pipe at the
back of his head.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and
further gravely erred in concluding that Ben Genosa was a battered husband.

Supervening Circumstances

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1)
the exhumation of Ben Genosa and the re-examination of the cause of his death; (2) the examination
of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic
Genosa of the crime of parricide and condemning her to the ultimate penalty of death." 13

121

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected to."

The Court's Ruling

Two of the prosecution witnesses namely, the mother and the brother of appellant's deceased
spouse attested in court that Ben had been married to Marivic. 17 The defense raised no objection
to these testimonies. Moreover, during her direct-examination, appellant herself made a judicial
admission of her marriage to Ben. 18 Axiomatic is the rule that a judicial admission is conclusive
upon the party making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made. 19 Other than merely attacking the
non-presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake.

The appeal is partly meritorious.

Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14
In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses
and on the basis of those and of the documentary evidence on record made his evaluation,
findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense
theory of the accused. While she, or even this Court, may not agree with the trial judge's conclusions,
we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the
evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If
at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions
in substantial compliance with his constitutional obligation. 15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, 16
this Court held:
"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the deceased is the

Third, under the circumstances of this case, the specific or direct cause of Ben's death whether by
a gunshot or by beating with a pipe has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head,
the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts
actually caused the victim's death." Determining which of these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have been
relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children.
As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. 20 As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has
little bearing on the final resolution of the case.
First Legal Issue:

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Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. 21 Well-settled is the
rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. 23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time." 24
A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical
or psychological behavior by a man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in any form of intimate relationship
with men. Furthermore, in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman."
25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26
More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"
27 which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase. 28
During the tension-building phase, minor battering occurs it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the right
to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered woman
soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence
"spirals out of control" and leads to an acute battering incident. 29
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes,
death. The battered woman deems this incident as unpredictable, yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the violence. Its nature can be as
unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would only exacerbate her
condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt. 30
The final phase of the cycle of violence begins when the acute battering incident ends. During this
tranquil period, the couple experience profound relief. On the one hand, the batterer may show a
tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen again;
that her partner will change for the better; and that this "good, gentle and caring man" is the real
person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though,
is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this
phase, she and her batterer are indeed emotionally dependent on each other she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31
History of Abuse in the Present Case

123

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She
herself described her heart-rending experience as follows:

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

"ATTY. TABUCANON
Q Who inflicted these injuries?
Q How did you describe your marriage with Ben Genosa?
A Of course my husband.
A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a
behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel.
In what way was this abusive and cruelty manifested to you?

Q You mean Ben Genosa?

A Yes, sir.
xxx xxx xxx

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the
bed and sometimes beat me.

[Court]/to the witness

Q How many times did this happen?

Q How frequent was the alleged cruelty that you said?

A Several times already.

A Everytime he got drunk.

Q What did you do when these things happen to you?

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred,
after your marriage, from that time on, how frequent was the occurrence?

A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a months or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he
said `sorry'.

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?

Referring to his "Out-Patient Chart" 33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D.
Caing bolstered her foregoing testimony on chronic battery in this manner.

A Yes, sir.

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

Q Who are these doctors?

A Yes, sir.

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

Q Who prepared the list of six (6) incidents, Doctor?

xxx xxx xxx

A I did.
Q Will you please read the physical findings together with the dates for the record.

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A 1. May 12, 1990 physical findings are as follows: Hematoma (R) lower eyelid and redness of
eye. Attending physician: Dr. Lucero;

A Yes, sir.
Q What did she tell you?

2. March 10, 1992 Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that
it was done to her by her husband.

3. March 26, 1993 Abrasion, Furuncle (L) Axilla;

Q You mean, Ben Genosa?
4. August 1, 1994 Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing;
A Yes, sir.
5. April 17, 1995 Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and
xxx xxx xxx
6. June 5, 1995 Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician:
Dr. Canora.

ATTY. TABUCANON:

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that
correct?

Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A Yes, sir.

A As per record, yes.

Q Did you actually physical examine the accused?

Q What was the date?

A Yes, sir.

A It was on November 6, 1995.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you
mean by abrasion furuncle left axilla?

Q So, did you actually see the accused physically?

A Yes, sir.

A Abrasion is a skin wound usually when it comes in contact with something rough substance if
force is applied.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

Q What is meant by furuncle axilla?

A Yes, sir.

A It is secondary of the light infection over the abrasion.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

Q What is meant by pain mastitis secondary to trauma?

A Eight (8) months pregnant.

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So in other words, it was an advance stage of pregnancy?

Q So, these are objective physical injuries. Doctor?

A Yes, sir.

xxx xxx xxx

Q What was your November 6, 19'95 examination, was it an examination about her pregnancy or for
some other findings?

Q Were you able to talk with the patient?

A No, she was admitted for hypertension headache which complicates her pregnancy.

125

Q When you said admitted, meaning she was confined?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

A Yes, sir.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
Q For how many days?
A On November 6, 1995 consultation, the blood pressure was 180/120.
A One day.
Q Where?
Q Is this considered hypertension?
A At PHILPHOS Hospital.
A Yes, sir, severe.
xxx xxx xxx
Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant. What is this all about?

A It was dangerous to the child or to the fetus." 34

A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23)
times.

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben. 35

Q For what?

Ecel Arano also testified 36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy . . . and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does not response
when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in line
of giving the root cause of what is causing this disease. So, from the moment you ask to the patient
all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?

On the afternoon of November 15, 1995, Marivic again asked her help this time to find Ben but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling. 37 Marivic relates in detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded
the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where
was his father, then my second child said, `he was not home yet'. I was worried because that was

126

payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived
from school, I prepared dinner for my children.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q This is evening of November 15, 1995?

Q How advance was your pregnancy?
A Yes, sir.
A Eight (8) months.
Q What time did Ben Genosa arrive?
Q Was the baby subsequently born?
A When he arrived, I was not there, I was in Isabel looking for him.
A Yes, sir.
Q So when he arrived you were in Isabel looking for him?
Q What's the name of the baby you were carrying at that time?
A Yes, sir.
A Marie Bianca.
Q Did you come back to your house?
Q What time were you able to meet personally your husband?
A Yes, sir.
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
Q What time?
A Bilwang.
A When I arrived home, he was there already in his usual behavior.
Q Is this your house or you are renting?
Q Will you tell this Court what was his disposition?
A Renting.
A He was drunk again, he was yelling in his usual unruly behavior.
Q What time were you able to come back in your residence at Bilwang?
Q What was he yelling all about?
A I went back around almost 8:00 o'clock.
A His usual attitude when he got drunk.
Q What happened when you arrived in your residence?
Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A When I arrived home with my cousin Ecel whom requested to sleep with me at that time because I
had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again
last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because of Ben.

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following . . . him, looking for him. I was just worried he might
be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear
that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation

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and he switch off the light and I said to him, `why did you switch off the light when the children were
there.' At that time I was also attending to my children who were doing their assignments. He was
angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.
Q What did he do with the bolo?

Q What was your reason in packing his clothes?

A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?

A He cut the antenna wire to keep me from watching T.V.

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then
he dragged me again of the bedroom holding my neck.

Q What else happened after he cut the wire?

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

A He switch off the light and the children were shouting because they were scared and he was
already holding the bolo.

COURT INTERPRETER:

Q How do you described this bolo?

A 1 feet.
Q What was the bolo used for usually?
A For chopping meat.

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that `you
might as well be killed so there will be nobody to nag me.'

A He was about to attack me so I run to the room.

Q So you said that he dragged you towards the drawer?

Q What do you mean that he was about to attack you?

A Yes, sir.

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q What is there in the drawer?

Q So when he whirled you, what happened to you?

A I was aware that it was a gun.

A I screamed for help and then he left.

COURT INTERPRETER:

Q You said earlier that he whirled you and you fell on the bedside?

(At this juncture the witness started crying).

A Yes, sir.

ATTY. TABUCANON:

Q You screamed for help and he left, do you know where he was going?

Q Were you actually brought to the drawer?

A Outside perhaps to drink more.

A Yes, sir.

Q When he left what did you do in that particular time?

Q What happened when you were brought to that drawer?

A I packed all his clothes.

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A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx xxx xxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?

Q How did he do it?

A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me." 38
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner
of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will trigger a lot of
physical abuse. She also had the experience a lot of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was
not his own. So she was very angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or
unwittingly put forward, additional supporting evidence as shown below:

A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three
hours, what was the most relevant information did you gather?

A Three (3) inches long and inch wide.

A The most relevant information was the tragedy that happened. The most important information
were escalating abuses that she had experienced during her marital life.

Q Is it a flexible blade?
A It's a cutter.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the
case or at least you have substantial knowledge of the facts of the case?

Q How do you describe the blade, is it sharp both edges?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

A Yes, because he once used it to me.

xxx xxx xxx

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Q Did you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?

"Q And you also said that you administered [the] objective personality test, what . . . [is this] all
about?

A I also heard that from her?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test
is to find out about the lying prone[ne]ss of the person.

Q You heard that from her?

Q What do you mean by that?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or . . . [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?

A What I remember that there were brothers of her husband who are also battering their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the
first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a selfdefense. I also believe that there had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of all the battering that happened and so
she became an abnormal person who had lost she's not during the time and that is why it happened
because of all the physical battering, emotional battering, all the psychological abuses that she had
experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes." 40
Parenthetically, the credibility of appellant was demonstrated as follows:

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the
data that I'm gathering from her are the truth. 41
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, 42 which was based on his interview and examination of Marivic Genosa. The Report said
that during the first three years of her marriage to Ben, everything looked good the atmosphere
was fine, normal and happy until "Ben started to be attracted to other girls and was also enticed
in[to] gambling[,] especially cockfighting . . . At the same time Ben was often joining his barkada in
drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her
husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. . . .." 43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an

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ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called 'battered
wife syndrome.'" 44
To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with nay, comprehensible to those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common myths
and misconceptions about battered women. 45
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." 46 In her years of research, Dr. Walker found that "the abuse
often escalates at the point of separation and battered women are in greater danger of dying then." 47
Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has . . . self-defeating and self-sacrificing characteristics. . . . [W]hen the
violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result
of his experience with domestic violence cases, he became a consultant of the Battered Woman
Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness. 50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxcietism." 51 After being repeatedly and
severely abused, battered persons "may believe that they are essentially helpless, lacking power to
change their situation. . . . [A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of the victim's ability to muster an
active response to try to escape further trauma. Furthermore, . . . the victim ceases to believe that
anything she can do will have a predictable positive effect." 52
A study 53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found
that "even if a person has control over a situation, but believes that she does not, she will be more
likely to respond to that situation with coping responses rather than trying to escape." He said that it
was the cognitive aspect the individual's thoughts that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances." 54
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of
her partner, she also believes that he is capable of killing her, and that there is no escape. 55 Battered
women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship. 56 Unless
a shelter is available, she stays with her husband, not only because she typically lacks a means of
self-support, but also because she fears that if she leaves she would be found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS. TcSICH
The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing
the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past, she
had gone through a similar pattern.

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How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house; 58 that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would return
to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe
that she was the only hope for Ben to reform? And that she was the sole support of his emotional
stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them if at all based on which they
concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in
order to be appreciated. To repeat, the records lack supporting evidence that would establish all the
essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right
of the woman to kill her abusive partner. Evidence must still be considered in the context of selfdefense. 59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense
is the state of mind of the battered woman at the time of the offense 60 she must have actually
feared imminent harm from her batterer and honestly believed in the need to kill him in order to save
her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a
real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary. 61 Thus, the Revised Penal Code provides the following requisites and effect of selfdefense: 62
"Art. 11. Justifying circumstances. The following do not incur any criminal liability:
"1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
Unlawful aggression is the most essential element of self-defense. 63 It presupposes actual, sudden
and unexpected attack or an imminent danger thereof on the life or safety of a person. 64 In the
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been
able to withdraw from his violent behavior and escape to their children's bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he
posed had ended altogether. He was no longer in a position that presented an actual threat on her life
or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm then, the imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of actual physical assault at the
time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To
require the battered person to await an obvious, deadly attack before she can defend her life "would
amount to sentencing her to 'murder by installment.'" 65 Still, impending danger (based on the
conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must
be shown. Threatening behavior or communication can satisfy the required imminence of danger. 66
Considering such circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense. 67 In the
absence of such aggression, there can be no self-defense complete or incomplete on the part of
the victim. 68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present

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In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances
that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by the parties. 69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced
with her husband constitutes a form of [cumulative] provocation which broke down her
psychological resistance and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced
at the hands of her abuser husband a state of psychological paralysis which can only be ended by an
act of violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. 71 Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?

Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will manifest now a
severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer
than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical
one is the repetitious battering but the individual who is abnormal and then become normal. This is
how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:
"Q But just the same[,] neurosis especially on battered woman syndrome . . . affects . . . his or her
mental capacity?

A What causes the trauma is probably the repetitious battering. Second, the severity of the battering.
Third, the prolonged administration of battering or the prolonged commission of the battering and the
psychological and constitutional stamina of the victim and another one is the public and social
support available to the victim. If nobody is interceding, the more she will go to that disorder . . .

A Yes, your Honor.

xxx xxx xxx

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory." acAESC

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
posttraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow
on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this
situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she
is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So
the anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q As you were saying[,] it . . . obfuscated her rationality?

A Of course obfuscated." 73

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness
that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 74 and 10 75 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome
reason. 77 To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed

133

from the commission of the crime by a considerable length of time, during which the accused might
recover her normal equanimity. 78
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards
a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. 79 His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. 81 In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. 82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself. 83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben
had been found lying in bed with an "open, depressed, circular" fracture located at the back of his
head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to
establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony 80 that with "neurotic anxiety" a psychological effect on a victim of "overwhelming
brutality [or] trauma" the victim relives the beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control "re-experiencing the whole thing, the most
vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving
which is beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

It should be clarified that these two circumstances psychological paralysis as well as passion and
obfuscation did not arise from the same set of facts.

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you
might as well be killed so there will be nobody to nag me'

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

Q So you said that he dragged you towards the drawer?

COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?

A Yes, sir.
Q What is there in the drawer?

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on
her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

A I was aware that it was a gun.

COURT INTERPRETER

Second Legal Issue:

(At this juncture the witness started crying)

Treachery

ATTY. TABUCANON:
Q Were you actually brought to the drawer?

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A Yes, sir.

A Yes, because I smashed him.

Q What happened when you were brought to that drawer?

Q What happened?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the
other room.

COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx xxx xxx
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through with him, I took pity on myself and I
felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot
him. AEHCDa

A It's a cutter.
COURT
Q How do you describe the blade, is it sharp both edges?
/to Atty. Tabucanon
A Yes, because he once used it to me.
Q You shot him?
Q How did he do it?
A Yes, I distorted the drawer." 84
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxx xxx xxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. 85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have
been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked. 86 There is no showing,
though, that the present appellant intentionally chose a specific means of successfully attacking her

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husband without any risk to herself from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor. 87

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to have
attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 5 88 of the same Code. 89 The penalty of reclusion temporal in its medium
period is imposable, considering that two mitigating circumstances are to be taken into account in
reducing the penalty by one degree, and no other modifying circumstances were shown to have
attended the commission of the offense. 90 Under the Indeterminate Sentence Law, the minimum of
the penalty shall be within the range of that which is next lower in degree prision mayor and
the maximum shall be within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be released
from detention on parole. 91

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence
must be proven to have characterized at least two battering episodes between the appellant and her
intimate partner. Second, the final acute battering episode preceding the killing of the batterer must
have produced in the battered person's mind an actual fear of an imminent harm from her batterer and
an honest belief that she needed to use force in order to save her life. Third, at the time of the killing,
the batterer must have posed probable not necessarily immediate and actual grave harm to the
accused, based on the history of violence perpetrated by the former against the latter. Taken
altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of
the present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Vitug and Quisumbing, JJ., concur in the result.

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-a-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

Davide, Jr., C.J., Sandoval-Gutierrez and Austria-Martinez, JJ ., join Mr. Justice Santiago in his
dissent.
Ynares-Santiago, J., see dissenting opinion.
||| (People v. Genosa, G.R. No. 135981, [January 15, 2004], 464 PHIL 680-761)

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

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