G.R. No.
81020 May 28, 1991 place that the child was in Cogeo, Antipolo, Rizal the group returned to the police station and then
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LlLIA GUTIERREZ Y FRANCO, defendant-appellant.
FELICIANO, J.:
The accused Lilia Gutierrez y Franco is before us on appeal from the decision of the Regional Trial
Court, Branch 27, Manila, convicting her of the crime of kidnapping and failure to return a minor and
sentencing her to reclusion perpetua.
Appellant was charged under an information which read as follows:
The undersigned accuses LILIA GUTIERREZ Y FRANCO of a violation of Article 270 of the Revised
Penal Code (Kidnapping and Failure to Return a Minor) committed as follows:
That on or about the 13th day of July, 1984, in the City of Manila, Philippines, the said accused,
having been entrusted the custody of one Hazel Elpedes, a boy, two and a half years of age, and
therefore, a minor, did then and there wilfully, unlawfully, feloniously and deliberately fail and
refuse to restore the said child to his parents, Frank Elpedes y Sumayod and Lourdes Elpedes, and
instead sell the said child for P250.00.
CONTRARY TO LAW." 1
Appellant entered a plea of not guilty. After trial, the lower court rendered a decision dated 14
September 1987 finding the accused guilty of the crime charged. The dispositive portion of the decision
states:
WHEREFORE, the Court finds the accused, Lilia Gutierrez y Franco, guilty beyond a reasonable
doubt of the crime as charged and hereby sentences her to suffer the penalty of life imprisonment
(sic) and is hereby ordered to pay the sum of P2,000.00 to the parents of the minor, Frank Elpedes
and Lourdes Elpedes, for moral damages and to pay the costs.
xxx xxx xxx
SO ORDERED. 2
Appellant in her Brief, assigns a single error, asserting that the trial court erred in convicting her
because her guilt has not been proven beyond reasonable doubt.
The facts of the case as found by the trial court may be summarized as follows:
On the morning of 13 July 1984, appellant went to the residence of her sister-in-law, Lourdes
Elpedes, at the Nichols Airbase, Pasay City, and obtained permission from the latter to take her youngest
son, Hazel, 2 1/2 years old for the day because appellant's husband, Maximiano Mariano, wanted to spend
some time with his nephew at their residence in Paco, Manila. Both women agreed that the child would be
brought back at 4:00 P.M. that same day. When appellant arrived at her residence, she discovered that her
husband, and their belongings, were gone. For a while, appellant just sat there and cried. She then
proceeded to the residence of her former employers, Mr. and Mrs. Abraham Felipe, in Intramuros. They
executed an "Agreement" under which appellant surrendered custody of Hazel Elpedes, purportedly her
own fatherless son, in favor of the couple. Appellant received P250.00 from the couple which was evidenced
by a receipt. 3
Meanwhile, Lourdes Elpedes went to appellant's residence after the latter had failed to return
with her son. Encountering no one there, she and her husband, Frank Elpedes, spent the next two days
looking for appellant along Herran St. (now Pedro Gil St.). On 15 July 1984, Frank Elpedes spotted appellant
in a telephone booth along said street and accosted her. The Elpedes spouses brought her to the Western
Police District Station along United Nations Avenue, Manila. Appellant then led Frank Elpedes and at least
one policeman, Patrolman Diosdado Deotoy, to the Felipe residence in Intramuros. But the group found
neither the Felipe spouses nor the child there. Receiving information from the Barangay Chairman of the
proceeded to Antipolo. There they recovered Hazel from the residence of the Felipe spouses. During this
time, appellant admitted to the group that she had "sold" the child in order to avenge herself on her
husband, Lourdes Elpedes' brother, who had abandoned her. On the evening of 15 July 1984, the group
returned to the police station where appellant was investigated and placed under arrest. She has been
under detention ever since. 4
Lourdes Elpedes testified in court regarding the circumstances under which appellant obtained
temporary custody of Hazel, the initial efforts by her and her husband to locate appellant, and the efforts of
her husband and the police to recover Hazel in Intramuros and in Antipolo. 5
Patrolman Diosdado Deotoy also testified in court regarding the efforts to recover Hazel Elpedes.
He recounted how they were able to locate the. house of the Felipe spouses in Cogeo and how the Felipe
spouses readily surrendered the child upon being informed of his true parentage. He added that the Felipe
spouses likewise surrendered the documents which came to be offered and admitted as exhibits D and E for
the prosecution. 6
Patrolman Ernesto Callos' testimony dealt with the circumstances under which he investigated the
appellant. He mentioned that appellant repeated to him in the investigation room her admission regarding
the "sale" of the child and her motive for "'selling" him. He added that the admission was made voluntarily
after appellant had intelligently waived the assistance of counsel. Furthermore, he did not insist, in
deference to her constitutional rights, when she declined to reduce this admission into writing. 7
Appellant testified on her own behalf as the sole witness for the defense. She stated that she had
fetched Hazel Elpedes from his parents upon instructions of her husband. After discovering that her
husband had abandoned her, she entrusted the child to the Felipe spouses merely for temporary
safekeeping while she tried to locate her husband in his homeplace in Cabanatuan City. She believed that
the Felipe spouses, her former employers, could be relied upon to look after the child responsibly. She
misrepresented the child as her own because the Felipes were aware of her married status. Returning to the
Felipe residence the following day, she received P180.00 from them, never considering for a moment that
the amount represented payment for the child. She admitted affixing her thumbmarks on Exhibit E but
repudiated her purported signatures on Exhibits D and E because she is illiterate. She added that she did
not know why the Felipe spouses presented these documents to her. Appellant testified that it had never
occurred to her to immediately return Hazel to his parents because she was in a confused state of mind
upon realizing she had been abandoned by her husband. 8
Appellant contends that the prosecution's evidence did not establish that she had deliberately
failed to restore the boy Hazel to his parents by "selling" the child to the Felipe spouses. Elaborating, she
argues that Lourdes Elpedes was an incompetent witness as far as her account of the recovery of Hazel in
Antipolo was concerned, because she was not present when this event took place. Lourdes' account of
appellant's alleged admission of the "sale" on the occasion then constituted hearsay. Furthermore, she
contends, Pat. Callos' testimony that appellant had admitted giving away the young boy to him during her
investigation was likewise hearsay. Considering this alleged gap in the prosecution's evidence, appellant
claims the prosecution should have presented either or both of the Felipe spouses to testify that appellant
had indeed "sold" the child. Finally, appellant argues that the prosecution had not successfully rebutted her
exculpatory testimony regarding herinadvertent failure to return Hazel to his parents. 9
The offense of kidnapping and failure to return a minor defined and penalized under Article 270 of
the Revised Penal Code consists of two elements: 1.) the offender has been entrusted with the custody of a
minor person, and 2.) the offender deliberately fails to restore said minor to his parents or guardians.
It is clear that appellant admitted the existence of the first element for she had not disputed the
testimony on circumstances under which she obtained custody for the day of Hazel Elpedes on the morning
of 13 July 1984. Furthermore, as pointed out by the trial court, it was perfectly in consonance with human
experience that Lourdes Elpedes should have readily allowed appellant to take Hazel temporarily because
she is a relative by affinity who, until then, had not exhibited any conduct which might impair the trust
normally reposed on a sister-in-law. 10
 We believe that the second element of the offense charged has been established by the
prosecution's evidence.1âwphi1In the first place, appellant's own conduct in leading Frank Elpedes and Pat.
Deotoy to the Felipe residence in Intramuros, in an initial unsuccessful effort to recover the child, indicated
her awareness of the probable whereabouts of the child. The logical conclusion is that she must have been
the person responsible for originally leaving the child with the Felipe spouses. 11 In the second place, the
precise motive that appellant might have had for bringing Hazel Elpedes to the Felipe spouses and leaving
him with them, apparently for an indefinite period, is not an indispensable element of the offense charged.
All that was necessary for the prosecution to prove was that she had deliberately failed to return the minor
to his parents. But appellant herself had testified that she had indeed left the child with the Felipe spouses
in Intramuros. We find it very difficult to understand how appellant, even in her claimed disconsolate state,
could have inadvertently left the child with the Felipe spouses in the latter's home in Intramuros (starting
from Herran St., in the opposite direction from the Nichols Airbase, where the child's parents live).
Moreover, appellant did not pretend to have tried to return Hazel to his parents by retrieving him from the
Felipe spouses in Intramuros.
It is true that Lourdes Elpedes' account of Hazel's recovery in Antipolo was hearsay, because
Lourdes was not then physically present in Antipolo. But Pat. Deotoy had participated in that operation and
he testified accordingly. Pat. Deotoy had also stated that appellant had admitted taking the child and leaving
him with the Felipe spouses. His testimony on this particular point was not disputed by appellant; appellant
herself testified to that effect. Pat. Callos' statement that appellant had reiterated while she was under
investigation, that she had "sold" the child to the Felipe spouses was not hearsay in so far as the simple fact
that appellant had made certain oral statements to Pat. Callos was concerned. The trial court had observed
the demeanor of Pats. Deotoy and Callos while testifying in open court and had pronounced them to be
credible witnesses. 12 We find no basis for disregarding their testimony as to what appellant had uttered in
their presence. 13 The two peace officers became involved in this case in the course of performing their duty
to assist the aggrieved parents in recovering their missing child. Appellant did not show any evil motive on
their part to falsify the truth and falsely impute to her, whom they met for the first time on this case, the
commission of a grave offense. 14 Finally, appellant's affixing her thumbmark on Exhibit E (the Agreement
with the Felipe spouses) and receiving money from Mr. and Mrs. Felipe ("for her child"; Exhibit D) are
particulars which corroborated the testimony of the two police officers as to what appellant had stated in
their presence, and which render her claim that she had merely inadvertently failed to return Hazel to his
parents, impossible to accept.
Appellant concluded her Brief with a plea that should her conviction be affirmed, the imposition of
the penalty ofreclusion perpetua upon her would be too harsh because her illicit act was really the result of
the bitterness she felt over the betrayal and humiliation inflicted on her by her husband, the brother of
Lourdes Elpedes. 15 The Solicitor General, in his own Brief, concurs with this view:
The record, however, shows that appellant had no intention to commit so grave a crime. After she
was found, she voluntarily surrendered and accompanied the police and the minor's parents to
Intramuros, Manila and later to Cogeo, Antipolo, Rizal, where the minor was later recovered.
Although she was alleged to have received P250.00 from the Felipes when she left the minor with
them, still appellant's previous admissions and cooperation with the police show that she did not
have a criminal mind or intent to commit so grave an offense. These mitigating circumstances can
not, however, be considered in her favor under Article 63 of the Revised Penal Code. The
imposition of a life sentence on appellant under these circumstances would indeed be too harsh,
considering further that she can not read and write, and had no educational background
whatsoever.
It is therefore recommended that after partial service of sentence, appellant be recommended for
an early pardon, if so entitled under the law. 16
We agree that in this particular case, the penalty normally imposed for kidnapping and similar
offenses appears too harsh. The record does not indicate that Hazel Elpedes has been injured emotionally
or physically by his experience. We believe the trial court's award of moral damages in favor of Hazel's
parents was proper as reparation for the three days of anxiety and mental anguish which they suffered
before the recovery of their child the amount, however, should be increased from P2,000.00 to P5,000.00.
We believe the degree of malice exhibited by the appellant, an unlettered woman, in committing the offense
here involved does not warrant the penalty of reclusion perpetua, particularly because to date, she has
already spent seven years in prison.
WHEREFORE, the Decision of the trial court dated 14 September 1987 imposing the penalty of life
imprisonment (should be reclusion perpetua) upon the appellant, is hereby AFFIRMED, except that the
award of moral damages in favor of Frank and Lourdes Elpedes is hereby increased to P5,000.00. Pursuant
to the authority granted to it under Article 5 of the Revised Penal Code, the Court recommends, through the
Secretary of Justice, to the President of the Philippines that executive clemency be extended to appellant
Lilia Gutierrez as a means of mitigating the undue harshness of the criminal law in this particular case.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
G.R. No. L-16177 May 24, 1967
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PANCHO PELAGIO Y ALFONSO, ET AL., defendants.
PANCHO PELAGIO Y ALFONSO, OSCAR CAYMO Y REYES and JOSE GUICO Y PAPAS, defendants-
appellants.
PER CURIAM:
This is an appeal from the decision of the Court of First Instance of Pasay City in Criminal Case No.
3380, People v. Pancho Pelagio, et al., condemning the appellants, Pancho Pelagio, Oscar Caymo and Jose
Guico, to death for the crime of robbery with homicide as defined and penalized in Article 294 of the
Revised Penal Code.
The amended information under which the above judgment was rendered originally recited six defendants,
namely, the three aforenamed appellants, and Arcadio Balmeo, Evelyn Villanueva and Arcadio Manalang
alias Ding Manalang. Subsequently, however, Arcadio Balmeo and Evelyn Villanueva were discharged from
the said information when they agreed to turn state witnesses. Armando Manalang, on the other hand, died
while the case was pending trial. Thus, the trial proceeded only with respect to the herein appellants:
Pancho Pelagio, Oscar Caymo and Jose Guico.
The records disclose that Jose Guico, an ex-convict, and Evelyn Villanueva lived in common law relationship
at No. 289-A (Int.) Leveriza St., Pasay City, from about January 1955 to March of the same year. Among their
friends were Pancho Pelagio, also an ex-convict, and Armando Manalang. At around three o'clock in the
afternoon of March 23, 1955, while Manalang was at the above residence, Pancho Pelagio came to see the
spouses Guico and Villanueva. Pelagio's wife had just delivered a child and he wanted to borrow money for
the hospital expenses.
It is not determinable from the records if Pancho Pelagio was then accommodated in his request for a loan.
The records disclose, however, that Armando Manalang, taking advantage of the said visit, informed Pancho
Pelagio of a robbery he, Manalang was planning with some other friends who later were revealed by
Manalang to be Jose Guico, Oscar Caymo and Arcadio Balmeo. Pelagio and Manalang decided to talk the
matter over and, in fact, did discuss the subject once more later that afternoon in the presence of Jose Guico
and Evelyn Villanueva, when Caymo and Balmeo arrived in the same house. The following day, March 24,
1955, the above persons, namely, Evelyn Villanueva, Pancho Pelagio, Armando Manalang, Oscar Caymo and
Arcadio Balmeo, met again at Guico's residence and there finalized and agreed on the plan to rob the house
of Guico's former landlady, a certain Aling Nena, at No. 327 G. Villanueva St., Pasay City. At this meeting, Jose
Guico was absent.
But the full and exact nature of Jose Guico's participation in the first meeting is unclear because there is
evidence to the effect that while the robbery was then being discussed, Guico was in the bathroom taking
his shower. (t.s.n. pp. 6, 12-13, Hearing of August 23, 1955). It is established, though, that after Manalang
had sketched the intended victim's house and its surrounding, Guico explained the location of the said
house in relation to the surrounding streets and, the points thereof through which entrance and exit should
be effected.
When the meeting broke up at about sick o'clock that evening, March 24, 1955, Pancho Pelagio, Oscar
Caymo, Armando Manalang and Arcadio Balmeo set out for the execution of their plan. They all walked
together towards Aling Nena's residence although before reaching the place, Caymo ordered Manalang to
hail and hold a taxi which the latter did. Then, too, only Balmeo and Caymo actually entered the victim's
premises because, as was earlier agreed upon, Pancho Pelagio acted as the lookout for the two and he
simply posted himself by the gate of the said house.
Caymo and Balmeo gained entrance to the house through its back kitchen door which they found to be
open. Once inside, Caymo drew his gun and sought out its occupants. Only an old woman, Mrs. Severina de
Gloria, however, was in at the time. Caymo then pointed the gun at the old lady and intimidated her into
producing all the money and jewelry she could. All in all, the pair got about P437 in cash, three pieces of
jewelry worth about P205.00 and a watch worth about P300.00. After they had taken the above items,
Caymo ordered Mrs. de Gloria to lie face downward, covered her with a blanket, and cautioned her against
moving or otherwise sounding out an alarm. The two then went down the house and out into the street. At
the gate, however, they failed to find Pancho Pelagio.
From G. Villanueva Street where the victim's house was located, Caymo and Balmeo walked till they got to
the corner of F. Fernando street where they found Armando Manalang waiting for them in a taxi. Caymo and
Balmeo then rode on it.
As the taxi was about to leave, however, a jeep from the opposite direction blocked its way and as the two
vehicles were thus stopped, a man alighted from the jeep and started to walk towards the taxi. When the
stranger was very near the taxi already, Manalang instructed Caymo to shoot at the man as the latter was a
police officer. Whereupon, Caymo leveled several shots at the latter, about six in all; and the man, who was
later identified as Patrolman Francisco Trinidad of the Pasay Police Department, fell dead.
From the scene of the shooting, Manalang, Caymo and Balmeo went direct to a house in Buendia Street
owned by Manalang's sister where they changed clothes and hid the death weapon and the money and
jewelry they had robbed. Shortly thereafter, Caymo and Balmeo proceeded to a house in Blumentritt where
they met Pancho Pelagio whom they called to account for his absence at the gate during the robbery. The
latter explained that he had to scamper away before Caymo and Balmeo had gone down because he, Pelagio,
saw someone slip out of the house apparently to summon the police.
The records do not disclose just how and when the herein appellants and their companions were
apprehended by the police. It appears, however, that on March 25, 1955, or the day following the incident,
Oscar Caymo was taken to the National Bureau of Investigation and subjected to paraffin test and found
positive for nitrate burns in both hands, the next day, he executed his extrajudicial confession (Exh. I)
relating to his participation in the crime and implicating Pancho Pelagio, Armando Manalang had Arcadio
Balmeo in it.
On March 26, 1955, appellant, Jose Guico also executed an extra-judicial confession (Exh. I) owning his
participation in the formation of the conspiracy as earlier recited in this decision. He named as co-
conspirators Pancho Pelagio and Armando Manalang.
The last to be apprehended was Armando Manalang. On April 8, 1955, he extra-judicially confessed (Exh. G)
to the above offense and implicated as his companions in it Jose Guico, Oscar Caymo, Arcadio Balmeo and
Evelyn Villanueva.
In the trial court, the herein appellant's common defense was alibi. Pancho Pelagio claimed that at the time
of the incident he was playing mahjong at the house of one Angelina Dadivas in Lakandola Street, Tondo,
Manila. Oscar Caymo, on the other hand, claimed that he was then at home at No. 2316 Oroquieta Street,
Manila. Finally, Jose Guico maintained that during the incident he was at the residence of one Jose
Obligacion where he stayed until about 11:00 in the evening. Consistently with their alibi, the appellants
charged that the extrajudicial confession given by them were secured by the police through threat and
maltreatment.
In the appeal before us now, only Oscar Caymo sticks to the defense of alibi. Appellant Pancho Pelagio now
admits he participated in the crime in the manner recited above but submits that, under the circumstances,
he should only be convicted for simple robbery and not for robbery with homicide. Appellant Jose Guico, on
the other hand, argues in this appeal that even under the facts found by the trial court regarding his
participation, he cannot justly be convicted for the crime charged. The Office of the Solicitor General, for its
part, urges the affirmance of the decision under review with respect to Pancho Pelagio and Oscar Caymo but
recommends the acquittal of Jose Guico on reasonable doubt.
After a careful and thorough review of the evidence, this Court believes that the decision appealed from
should be modified to the end that Oscar Caymo's conviction should stand, Pancho Pelagio's guilt be
reduced to simple robbery, and Jose Guico, as recommended by the Solicitor General, be acquitted on
reasonable doubt.
Appellant Oscar Caymo's insistence on his alibi is absolutely futile. The evidence against its credibility is
both forceful and overwhelming.
To begin with, Oscar Caymo was positively identified by Mrs. Severina de Gloria as one of those who broke
into her house on the night of the incident and robbed her at gunpoint. He was likewise positively identified
during the trial by Francisco Juni, the driver of the get-away taxi, as the gunwielder in the fatal shooting of
Pat. Trinidad. Additionally, state witnesses Evelyn Villanueva and Arcadio Balmeo testified at the stand that
he was among those who hatched and agreed on the robbery at the house of Jose Guico previous to the
execution of the same. And then, too, he was found positive for nitrate burns in both his hands by the
National Bureau of Investigation the very day following the incident. Against this finding, he has offered
neither denial nor any reasonable explanation. Even if this Court disregards his extrajudicial confession,
therefore, though we do not here now find the same inadmissible the acceptance of Caymo's alibi would still
be completely anomalous and irrational. No jurisprudence in criminal cases is more settled than the rule
that alibi is the weakest of all defenses and that the same should be rejected when the identity of the
accused has been sufficiently and positively established by eyewitnesses to the crime. (People v. Ruiz, G.R.
No. L-11063, August 22, 1958; People v. Asmawil, G.R. No. L-18761, March 31, 1965; People vs. Lumayag,
G.R. No. L-19142, March 31, 1965). When nothing supports it except the testimonies of relatives and friends
and the defendant's own urging of the same, the said defense weighs and is worth nothing. (People v.
Bañaga, et al., G.R. No. L-14905, January 28, 1961) Besides, the rule is to the effect that for alibi to prosper, it
is not enough to prove that he was also somewhere when the crime was committed but the defendant must
likewise demonstrate that it was physically impossible for him to have been at the scene of the crime at
such time. (People v. Limpo, et al., G.R. No. L-13058, January 28, 1961) Caymo's alibi does not meet this
standard. Consequently, this Court would only do wrong and carry justice to set aside his conviction.
This Court, however, concurs with appellant Pancho Pelagio's submission that, by the trial court's own
factual determination, his criminal liability cannot be extended beyond simple robbery. We hold Pancho
Pelagio guiltless or innocent of Pat. Trinidad's death.
Even the decision under appeal recites that when Arcadio Balmeo and Oscar Caymo hurried out of the
victim's house after the robbery, Pancho Pelagio had evidently fled from his lookout post because the pair,
Balmeo and Caymo, failed to locate him at the gate where he was supposed to have stationed himself. To be
sure, the said decision itself renders the account that it was only Balmeo and Caymo who walked together
from the said house to the corner of Villanueva and F. Fernando Streets where then they saw Armando
Manalang waiting for them in a taxi and that it was only when these three had taken to the said taxi, and the
cab was about to leave, that the shooting of Pat. Trinidad happened. When the homicide was committed,
therefore, Pancho Pelagio could not have had the least intervention or participation as might justify
penalizing him likewise for the said killing. So far as the records disclose, the conspirators were agreed only
on the commission of robbery; there is no evidence that homicide besides was determined by them when
they plotted the crime. All these warrant the exclusion of Pancho Pelagio from any responsibility for the
said killing. (People vs. Basisten, et al., 47 Phil. 493) Considering that those who actually participated in the
robbery were only three, Pancho Pelagio included, and only one of them was armed, the same evidently was
not "in band." (Art. 296, Revise Penal Code) This being the case, then it would indeed be irregular or
questionable to hold Pancho Pelagio similarly responsible as Caymo and Balmeo for the killing of Pat.
Trinidad. Under the code, it is only when the robbery is in band that all those present in the commission of
the robbery may be punished, for any of the assaults which its members might commit. Thus, inPeople v.
Pascual, G.R. No. L-4801, June 30, 1953 (unreported), we held that where three persons committed robbery
and two of them committed rape upstairs on its occasion, while the third guarded the owner of the house
downstairs, only the two who committed the assault should be punished for robbery with rape while the
third was liable for robbery only.
Finally, we find the Solicitor General's recommendation for the acquittal of appellant Jose Guico well
founded. While it seems proven that the said appellant did participate in the first of two meetings in the
discussion of the plan to commit the robbery in question by answering Armando Manalang's inquiries
relating to the intended house and its surrounding streets and the means of entrance thereto and the
channels of exit therefrom, the evidence is as much that, thereafter, his involvement with the conspiracy
ceased. It should be recalled that the conferences on the robbery were held on March 23, and 24, 1955. At
the first meeting, the participants were Jose Guico, Pancho Pelagio, Oscar Caymo, Armando Manalang,
Arcadio Balmeo and Evelyn Villanueva. At the meeting of the 24th the same group, save for appellant Jose
Guico, conferred and finalized the plan and, in fact, proceeded to execute the same almost immediately after
the conference adjourned. There is ample and positive evidence on record that appellant Jose Guico was
absent not only from the second meeting but likewise from the robbery itself. To be sure, not even the
decision under appeal determined otherwise. Consequently, even if Guico's participation in the first
meeting sufficiently involved him with the conspiracy, such participation and involvement, however, would
be inadequate to render him criminally liable as a conspirator. Conspiracy alone, without the execution of
its purpose, is not a crime punishable by law, except in special instances (Article 8, Revised Penal Code)
which, however, do not include robbery.
Besides, appellant Jose Guico's absence from the second conference as well as from the robbery itself
strongly points to his evident change of mind regarding his commitment the previous day to be in on the
robbery. Under the circumstances and under a policy of liberal consideration for timely retreat or
repentance, he may be deemed to have desisted voluntarily from the conspiracy before the contemplated
crime could actually be carried out and therefore, free from penal accountability. (People v. Timbol, et al.,
G.R. Nos. 47473-47474, August 4, 1944 [unreported]) As Viada expounds on the rule, "when the action of
the felony starts and the accused, because of fear or remorse desists from its continuance, there is no
attempt. . . . If the author of the attempt, after having commenced to execute the felony by external acts, he
stops by a free and spontaneous feeling on the brink of the abyss, he is saved. It is a call to repentance, to
the conscience, a grace, a pardon which the law grants to voluntary repentance." (Cited and translated
in Padilla Criminal Law, p. 120, 1964 Ed.)
In summary then, this Court finds appellant Oscar Caymo guilty beyond reasonable doubt of the crime of
robbery with the homicide attended by the aggravating circumstances, all recited in the information and
proven at the trial, of nocturnity and use of a motor vehicle without the compensating mitigating
circumstances. On the other hand, appellant Pancho Pelagio is hereby determined to be guilty beyond
reasonable doubt of simple robbery under Article 294, paragraph 5 of the Revised Penal Code, attended by
the aggravating circumstances of nocturnity and recidivism, having been at the time of the trial, as recited in
the information and proven at the trial, previously convicted for robbery. There is no mitigating
circumstance appreciable in his favor. For both appellants, therefore, the penalties prescribed by law
should be imposed in their maximum period, although appellant Pancho Pelagio is still qualified to avail of
the benefits of the Indeterminate Sentence Law. For the reasons given above, appellant Jose Guico should
be, as he is hereby acquitted.
Wherefore this Court affirms the decision under appeal insofar as it imposes the death penalty on appellant
Oscar Caymo, but modifies the conviction of appellant Pancho Pelagio from robbery with homicide to
simple robbery under Article 294, paragraph 5, R.P.C., with the aforementioned aggravating circumstances.
Accordingly and applying the Indeterminate Sentence Law, the said appellant is hereby sentenced to a
prison term of from four years and two months of prision correccional to eight years and one day of prision
mayor. The abovenamed appellants, moreover, are hereby ordered to indemnify, jointly and severally the
offended parties named in the decision under appeal the sums therein stated. The indemnity for the death
of Pat. Francisco Trinidad, payable to his heirs, should be raised from P3,000.000 to P6,000.00 and charged
alone against appellant Oscar Caymo. Finally, the conviction of appellant Jose Guico is hereby set aside and
let judgment be entered acquitting him for the reasons given above. Costs against the appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
[G.R. No. L-6273. December 27, 1957.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSE HIDALGO y RESURRECCION and MAURA
GOTENGCO y SOLIMAN, Defendants-Appellants.
SYLLABUS
1. EVIDENCE; ARSON; WHEN PROOF O THE CRIME CONSIDERED COMPLETE. — In prosecutions for arson,
proof of the crime charged is complete where the evidence establishes (1) the corpus delicti, that is, a fire
because of criminal agency; and (2) the identity of the defendants as the one responsible for the fire (Curtis,
the Law of Arson, p. 526, section 586).
2. ID.; ID.; EVALUATION OF EVIDENCE; COURTS MAY ACCEPT OR REJECT PART OF WHOLE OF
TESTIMONY. — It is a settled rule that the courts may believe one part of the testimony of a witness and
disbelieve another part. Courts are not required to accept or reject the whole of the testimony of a
particular witness.
3. CRIMINAL PROCEDURE; EXCLUSION OF ACCUSED TO BECOME STATE WITNESS; REQUISITE OF. —
Section 9, Rule 15 of the Rules of Court, does not require presentation of proof before a motion for exclusion
of an accused to be a witness for the state is granted. The law only requires that hearing thereof be had and,
in the case at bar, there has been such hearing.
DECISION
ENDENCIA, J.:
Charged with and found guilty of arson on an inhabited building, with the aggravating circumstances of
premeditation and nighttime, without any mitigating circumstance to offset the same, the accused spouses
were sentenced by the Court of First Instance of Manila to suffer reclusion perpetua, with the accessory
penalties of the law, to pay jointly and severally indemnity in the sum of P11,870.47 as follows: P3,400 to
the Alto Surety & Insurance Co., P3,475 to New Zealand Insurance Co., P1,895 to Malayan Insurance Co.,
P1,600 to South British Insurance Co., P1,500 to Pacific National Fire Insurance Co., plus one-half of the
costs. They appealed from this decision on the ground that the court erred —
"1. In allowing the exclusion of Florencio Camilo from the complaint in order to make him a state witness
despite the opposition of the herein accused;
2. In not stating in its decision that the corpus delicti in the case at bar was not proven;
3. In not finding that since the testimony of the sole witness for the prosecution as regards the guilt of the
accused James Uy, alias James Kay and Aw Ming, alias Taba, was not credible, it should likewise be
incredible as regards the herein appellants;
4. In not finding that the testimony of Florencio Camilo comes from an impure source and hence it should
not prevail over the testimony of herein appellants; and
5. In not acquitting the herein appellants."cralaw virtua1aw library
Upon careful examination of the record of the case, we find to be completely undisputed and positively
shown by the evidence on record the following facts: that in response to an alarm, at about 7:40 on the
evening of October 8, 1950, Capt. Braulio Alonia, Chief of the San Lazaro Fire Station, rushed with his men to
the corner of Echague and Rizal Avenue, City of Manila. Upon arriving at the place, they found on fire the
second floor of the appellant’s building located in that corner. His men proceeded to quench the blaze and
succeeded in doing so in a few minutes. Soon after the fire had been put out, Capt. Alonia inspected the
second floor and found on the Echague wing thereof two broken glass jars, ten unbroken glass jars
containing gasoline, lines of toilet paper dipped in the gasoline content of the jar and arranged in such a
manner as to connect them to one another, and eleven green tin covers, Exhibits B, B-1 to B-9; C, C-1 to C-
10; D and I. Photographs of the fire scene were taken by the photographers of the Police and Fire
Department, (Exhibits F, G, H, I, J, U and V), all of which clearly depict the burned area, the broken glass jars
and the arrangement on the floor of the unbroken glass jars which contained gasoline as well as the
connecting lines of tissue papers. In the course of the investigation of the fire, Capt. Alonia made a sketch
from which the data appearing on Exhibit T were taken, and a glance at these photographs and sketch will
convince anyone that but for the timely and efficient handling of the fire by the firemen the entire building
might have been burned because the ingenuous device of connecting the gasoline-filled glass jars with
tissue paper would have rapidly spread the fire all over the Echague wing of the building and had the fire
run its natural course traces of its criminal inception and design would have been obliterated or its
detection made impossible by the resulting debris.
The building in question consists of two wings, one of which fronts Rizal Avenue and the other Echague
Street (Exhibit D). The appellant spouses were keeping a room in the second floor at the corner of Rizal
Avenue and Echague Street. The Echague wing was occupied by the Republic Vocational School, owned by
Dr. Felix Acevedo, and the Rizal Avenue wing was rented out to various tenants. The stairs leading to the
second floor were located on Rizal Avenue and at the top of said stairs there used to be a door, but this was
removed on orders of appellants sometime before the fire. Entering the second floor from said stairs, the
appellants would turn right to reach their room and at the left side of the door thereof a corridor ran thru
the middle of the Echague wing. Along both sides of said corridor were several rooms containing desks,
tables, books, typewriters, a steel cabinet and a sewing machine, and at the end of this corridor was a room
with windows opening on Estero Cegado and Echague Streets. The fire started in the above-described
corridor, about 5 or 6 meters from the door of the said room of the appellants (Exhibits D, M and N).
The first floor and undivided one-half of the second floor of the building were owned by the appellant
spouses who insured the entire building with four insurance companies under their deferent policies for a
total sum of P175,000 as follows:chanrob1es virtual 1aw library
People’s Surety & Ins. Co. —
July 3, 1950 to July 3, 1951 P15,000.00 (Exh. W-1)
September 15 1950 to September
15, 1951 10,000.00 (Exh. W-2)
September 8, 1950 to September 8,
1951 10,000.00 (Exh. W-3)
August 25, 1950 to August 25,
1951 20,000.00 (Exh. X to X-4)
 herein appellants, Florencio Camilo was excluded from the information to be utilized as a government
August 25, 1950 to August 25, witness, and thus Florencio Camilo was allowed to testify in the case.

1951 10,000.00 (Exh. W-5) The record discloses that there is no direct evidence linking the herein appellants with the crime at bar
except the testimony of Florencio Camilo. Were his testimony to be held as unworthy of credence, the
Central Surety Company — appellants are perfectly entitled to acquittal; otherwise the decision appealed from should be upheld.

November 23, 1949 to November
23, 1950 50,000.00 (Exh. X to X-6)
June 19, 1956 to June 19, 1951 20,000.00 (Exh. Y)
Alto Surety & Ins. Co. —
September 26, 1950 to September
26, 1951 15,000.00 (Exh. Z to Z-1)
September 25, 1950 to September
25, 1951 5,000.00 (Exh. AA to AA-1)
Manila Underwriters Ins. Co. —
May 15, 1950 to May 15, 1951 . . . . . . . 20,000.00 (Exh. BB to BB-2)
___________
Total P175,000.00
Eight of these policies (Exhs. W-1, W-2, W-3, W-4, W-5, X, Z and AA) with a total face value of P135,000
were taken out in the name of the appellant spouses either jointly or singly and six of these eight, with a
total face value of P70,000 (Exh. W-2, W-3, W-4, W-5, Z, and AA) were taken out about a month prior to
October 8, 1950, the date when the fire occurred.
The evidence further shows that the building in question suffered an estimated loss and damage of P5,255,
yet the appellants did not file the necessary claim for recovery of said damage under their policies. It
likewise appears that the reproduction costs in 1950 of appellants’ building was only P89,524.59 (Exhibit
CC) and, notwithstanding the fact that the appellants do not own the entire building, for they own only the
first floor and one-half of the second floor, they secured, as stated above, 8 policies with a total face value of
P135,000 and 6 of these 8 policies with a total face value of P70,000 were taken out just about a month
before the fire.
Due to the investigation conducted by Capt. Alonia immediately after the fire and further investigation done
by the Police authorities which strongly indicated that the burning of appellant’s building was intentional,
on March 29, 1951 an information was filed against the herein appellants Jose Hidalgo Resurreccion and
Maura Gotengco y Soliman and Florencio Camilo, alias Lin Siu, alias Lin Hong, alias Sy Hong, and John Doe,
which later on was a mended to include therein the accused James Uy, alias James Kay and Aw Ming, alias
Taba. Before the trial of the case, upon proper motion by the City Fiscal and despite opposition by the
Camilo’s testimony, as correctly summarized by the Solicitor General in his brief, is as
follows:jgc:chanrobles.com.ph
"Camilo testified that he and James Kay were friends since before the war, and that he had known Aw Ming
for about nine months (pp. 28- 29, t.s.n.) . On the evening of October 1, 1950, at a massage clinic on
Florentino Torres Street which these friends used to frequent, they made an appointment to meet each
other the afternoon of the next day at the Bataan Cafe for the purpose of seeing Dr. Hidalgo about the
burning of the latter’s building (pp. 30, 258-260, t.s.n.) . In that cafe, the three met at about 2:00 p.m. and
thence proceeded to said building, where in a room on the second floor Camilo met the Hidalgo spouses for
the first time (pp. 27, 31-32, t.s.n.) . Inside said room Camilo saw two big dogs of foreign breed held in leash,
several chairs, and a bed (pp. 35-36, t.s.n.) . After some haggling over the price for the job of setting the
building on fire, James Kay and Dr. Hidalgo agreed upon P16,000, of which P15,000 was to be paid by check
and the balance of P1,000 in cash (pp. 37-39, t.s.n.) . Protesting lack of cash on the occasion, Dr. Hidalgo told
the three to return on October 4 and on that day Maura Gotengco drew two checks against the Philippine
Trust Company, both payable to "cash" (pp. 40-43, 54, t.s.n.) . One of these P.T.C. No. 837571 (Exhibit L),
was for P12,000 and was postdated November 3, 1950; the other P.T.C. No. 837570, was for P3,000, but in
the space for the date of issuance only the figure "10" and the year "1950" were written (see Exhibit K).
Enough space, however, was left between the printed word "Manila" and the figure "10" for the insertion of
the abbreviation of a month so that if for instance the abbreviation "October" were written after word
"Manila" and before the figure "10", the check would appear as if it had been issued on October 10, 1950; or
a bar could be placed after the figure "10" and any number from 1 to 31 written after it say "4", and it would
appear that it was issued on October 4, 1950. At first only the face of these checks was signed by Gotengco,
but James asked her to sign them also on the back, which she did, and the said checks, having been thus
endorsed, were then handed to James (pp. 44, 55-56, 121, t.s.n.) . Fifty and one-hundred peso bills totalling
P1,000 were then counted out to James: and after he had pocketted both the checks and the cash (pp. 45,
242, t.s.n.) , the conspirators proceeded to discuss when and how the building was to be burned (p. 58,
t.s.n.) . For the reason that on Sundays the Chinese stores are closed and there are comparatively less
people about, October 8, 1950, a Sunday, was chosen (pp. 60-61, t.s.n.) . It was also agreed upon that the
building would be set on fire at 7:30 in the evening and that gasoline in bottles would be used (pp. 58, 60,
63, t.s.n.) . This matter having been settled, Dr. Hidalgo, James Uy, Aw Ming, and Camilo inspected the
premises to be set on fire, and a place in the Republic Vocational School where there was a bookcase was
selected for starting the blaze (p. 67, t.s.n.) .
"While returning from Quiapo church the afternoon of the next day, October 5, 1950, Camilo and his wife,
Virginia de la Cruz, met their friend Johnny Uy and walked with him to the massage clinic on Florentino
Torres Street where he was working. At the corner of said street and Ronquillo Street, Camilo was seen by
James Uy and Aw Ming who were inside a coffee shop. James called Camilo and as it turned out that James
and Aw Ming were quarreling about the possession of the checks, James wanting to retain them and Aw
Ming insisting on taking them from James, it was agreed that Camilo would hold the checks and that about 9
00 o’clock that night both would come to the massage clinic on Florentino waited until midnight but as
neither showed up he started to go home. However, at the foot of the stairs leading from the clinic, he was
accosted by Det. Lt. Enrique Morales who demanded the production of his alien certificate of registration;
and as Camilo was taking this from his wallet, Morales spied the checks and took them from him (pp. 76-78,
t.s.n.) .

"The following morning, October 6, 1950, Camilo went to James Tailoring Shop on Echague St. and reported
to him the seizure of the checks (p. 247, t.s.n.) . James said he would take up the matter with Morales and
then they sought out Dr. Hidalgo and his wife to inform them also of the confiscation of the checks (pp. 80,
82, t.s.n.) . Dr. Hidalgo told them not to worry, saying that he would declare to the bank that the checks had
been lost, that another checks would be issued, and that they should go ahead with their plans (pp. 82-85,
t.s.n.) . However, James put off the purchase of the materials to be used for the burning because on that day,
October 6, 1950, his son was to be baptized and he even borrowed Camilo’s share of the cash (p. 158, t.s.n.) .
"On October 7, 1950, Camilo and Jesus went to Lt. Morales to ask for the return of the checks and Morales
returned to Camilo the check for P3,000 which Camilo forthwith handed to James (p. 80, t.s.n.) . Camilo then
accompanied James to a store on Echague St. and there the latter bought twelve (12) glass jars with green
tin stoppers which they brought to Aw Ming’s house on Mayhaligue Street (pp. 85-86, t.s.n.) After lunch,
Camilo rode in a jeep driven by James and in four (4) trips, they bought gasoline from four (4) different
stations along Taft Avenue in Pasay City. After each purchase, they returned to Aw Ming’s house on
Mayhaligue where James siphoned the gasoline with a rubber tube from the tank into a tin can and Aw Ming
helped transfer the gasoline from said can into the twelve (12) glass jars (pp. 88-97, t.s.n.) .
"About 7:00 in the evening of October 8, 1950, James and Aw Ming picked up Camilo at the Bataan Cafe and
the three drove in a jeep to the house of the Hidalgo spouses on the corner of Rizal Avenue and Echague
Street. Inside the jeep were the twelve (12) glass jars filled with gasoline contained in two cartons and some
rolls of toilet tissue paper wrapped in Manila paper (pp. 99-100, t.s.n.) . James parked the jeep in front of the
appellants’ building and after calling Dr. Hidalgo, he (James) and Aw Ming carried the gasoline-filled jars to
the second floor while Hidalgo carried the bundle of toilet paper (pp. 102-103, t.s.n.) . Soon afterwards,
James came down told Camilo to go up the building, and parked the jeep elsewhere. Camilo obeyed and in a
few minutes James returned to join his companions upstairs (p. 104, t.s.n.) . James and Camilo unscrewed
the jar covers and placed the jars about the Echague wing, some under chairs and others near bookcases.
The tissue paper was unrolled and the end of lines thereof inserted in the jars to connect them to each other
(pp. 105-108, t.s.n.) . One end of a length of tissue paper about 1 1/2 meters long was inserted in one of the
jars and on the other end thereof James stuck a candle about one inch long and lighted it. Hidalgo then led
out his two dogs, and Camilo, Aw Ming and James followed him (pp. 112-113, 116, t.s.n.) . Hidalgo placed the
dogs in his yellow Cadillac convertible and parked it in front of the then Bataan Theater at the foot of Sta.
Cruz Bridge (now McArthur Bridge). Aw Ming left, but Camilo and James, who was to relight the candle if
the building did not burn, stayed watching the building on the south sidewalk of Echague Street. In about
ten minutes, Camilo heard an explosion and the building started to burn (pp. 113-115, t.s.n.) ."cralaw
virtua1aw library
The foregoing testimony is assailed on the ground that it is incredible and contrary to the ordinary course
of events: that being the testimony of an accomplice, it comes from a polluted source and therefore it should
be received with caution; that it was not given credence by the lower court with respect to appellants’ co-
accused James Uy and Aw Ming who were acquitted and, therefore, it should not also be given weight with
regard to the herein appellants, for if Camilo’s testimony as regards the guilt of James Uy and Aw Ming was
not credible, it should likewise be unworthy of credence as regards the appellants’ alleged complicity in the
crime at bar.
We find, however, that the lower court gave credence to the testimony of Florencio Camilo with respect to
the participation of the herein appellants in the burning of their building, because it is corroborated by the
fact that Maura Gotengco issued the checks testified to by the witness, to wit: P3,000 (Exhibit K) and
P12,000 (Exhibit L) and by the other fact, that the spouses had heavily insured the building in question for
P175,000 prior to the fire when the insurable value thereof was only about P78,000 or P79,000. And upon
careful scrutiny of the evidence on record, we find these facts to be unrefuted for the spouses did really
insure the building in question for the amount mentioned above, and that Maura Gotengco, on October 4,
did really draw the aforesaid checks.
As to the over insurance of the building, it appears that the herein appellants never denied having secured
eight policies, on the building, with a total face value of P135,000 and that 6 of these policies, for a total
value of P70,000, were taken out just about a month before the fire. When the lower court, therefore, found
the herein appellants guilty of the crime of arson charged against them, it acted with sufficient evidence
supporting its finding.
Appellants vigorously contend that the issuance of the checks by Maura Gotengco should not be taken
against them, for said checks were issued by Maura to help one Victor Vickman who was allegedly a
Philippine Army undercoverman trying to locate a hidden cache of firearms and ammunition worth
P1,660,000. Appellants’ claim that this Vickman told them that a certain Bill Dean, representing the so-
called sellers group, asked him to put up a "goodwill money" in the sum of P15,000; that unless said sum of
money could be produced by Vickman, the latter would not be allowed to inspect the firearms; that
Vickman tried to get said amount from his superiors but in vain, and when Vickman happened to talk to
them (appellants), Maura issued a check to help said Vickman. Carefully considered, appellant’s explanation
as to how the checks in question were issued clearly appears unbelievable, firstly, because if Vickman really
needed P15,000 to discover the cache of firearms and ammunitions above-mentioned and he approached
the army authorities to secure said amount, it is difficult to believe that said amount, in cash or in check,
would not be given by his superiors to a subordinate like Vickman and thereby imperil the success of an
undertaking which demanded utmost secrecy; secondly, it is highly unbelievable that for the purpose of
discovering the cache of firearms and ammunitions which required utmost secrecy, Vickman would ask
help from the herein appellants whose intimacy with him has not been proved.
Appellants strongly urge that since Camilo’s testimony as regards the guilt of the accused James Kay and Aw
Ming was not given credence, it should likewise be held unworthy of credence as regards the appellants. It
is however a settled rule that the courts may believe one part of the testimony of a witness and disbelieve
another part. Courts are not required to accept or reject the whole of the testimony of a particular witness.
In the case at bar, the lower court found that Camilo’s testimony concerning the accused James Uy and Aw
Ming was not corroborated and, except said testimony, there was nothing in the evidence presented by the
prosecution which would connect them with the perpetration of the crime charged against them, this being
the main reason for their acquittal. In other words, James Uy and Aw Ming were acquitted on the
insufficiency of evidence and not on a finding that Camilo’s testimony was not worthy of credence.
Appellants also claim that it is hard to believe Camilo’s testimony to the effect that, after Hidalgo had
committed himself to pay P16,000 to his co-conspirators to set fire on his building, he would still help his
accomplices in the preparation of the incendiary paraphernalia, and even more incredible that after the
seizure by Detective Lt. Morales of the checks issued to his accomplices in payment for their help, he would
still insist in carrying out the plan to burn said building. But, as the Solicitor General pointed out —
"All these alleged incredibilities are susceptible of rational explanation. Appellants were not buying gasoline
in 12 glass jars, rolls of tissue paper, and an inch-long candle, but the know-how for the attainment of their
objective, viz., the burning of the building so that they might collect on their P135,000 policies. For such a
stake, P16,000 certainly cannot be considered an excessive price to pay. And after all, what appellants
actually parted with was only P1,000 before the fire, and it is not most unreasonable to suppose that the
agreement between James Kay and the appellants was to make encashment of the checks contingent on a
successful burning and recovery on the insurance policies, since the twelve thousand-peso check, Exhibit L,
was postdated more than a month from the actual date of its issuance, and the three-thousand-peso check,
Exhibit K, was not completely dated, and Maura did not have any deposit to back them up. There is nothing
strange in the fact that Hidalgo helped his accomplices arrange the tissue paper and jars. It was necessary
that he be in the building when the trio arrived to prevent their being stopped or questioned by the other
tenants of the second floor, and being there, it was all too natural for him to give a hand. As to the
confiscation of the checks, the appellants could not have been deterred thereby from going ahead with the
planned burning, because they could not have then known that Camilo would turn state witness. It cannot
be gainsaid that without Camilo’s testimony it would have been impossible to connect the appellants with
the crime notwithstanding that the checks were in the hands of the police authorities. This explain also why
the appellants did not mind using checks."cralaw virtua1aw library
Consequently, we hold the view that Camilo’s testimony deserves credence, for it is not only corroborated
by the issuance of Maura Gotengco of the aforementioned checks (Exhibits K and L), but also by the facts
correctly indicated by the Solicitor General in his brief, to wit:chanrob1es virtual 1aw library
been set at liberty, the error, as a general rule, cannot be cured any more than any other error can be cured
which results in an acquittal of a guilty defendant in a criminal action (U. S. v. De Guzman, 30 Phil. 416). But
the commission of such error does not have the effect of discharging from criminal liability the accused
persons who were not discharged that they might be used as witnesses."cralaw virtua1aw library
Lastly, appellants urge that in the case at bar, no corpus delicti was proven. This contention merits no
consideration whatsoever, for in the present case there was a building burned and its burning was the
result of the wrongful and criminal act of some persons, among them, the witness Camilo and the herein
appellants. In prosecutions for arson, proof of the crime charged is complete where the evidence establishes
(1) the corpus delicti, that is, a fire because of criminal agency; and (2) the indemnity of the defendant as
the one responsible for the fire (Curtis, The Law of Arson p. 526, section 486).

(1) The admitted fact that the appellants did declare on October 7, 1950, to a bank, the Philippine Wherefore, finding no errors in the decision appealed from, the same is hereby affirmed, without costs.
Trust Company, the loss of certain checks whose serial numbers included those of Exhibits K and L. (See
Exhibit 11.) It cannot just be pure coincidence that the Hidalgo spouses were, according to Camilo, informed Paras, C.J., Bengzon, Montemayor, Reyes, A., Labrador, Bautista Angelo, Reyes, J. B. L. and Felix, JJ., concur.
of the confiscation of the checks by Morales on October 6, 1950, and that Dr. Hidalgo then told him and
James Kay that he would declare to the bank that the checks had been lost.

"(2) The uncontradicted number and manner of arrangement of the glass jars which were found in the
premises of the Republic Vocational School immediately after the fire.

"(3) The uncontradicted fact that the contents of said jars were indeed gasoline as found by the MPD
Chemist Ungson upon analysis thereof.

"(4) The uncontradicted presence and arrangement of tissue paper in relation to the glass jars in
exactly the same manner described by Camilo.

"(5) The admitted occupancy by Hidalgo spouses of a room on the second floor of the building where
the fire occurred, and the presence therein of dogs of foreign breed, some chairs, and a bed.

"(6) The undenied ownership by Dr. Hidalgo of a yellow Cadillac convertible.

"(7) The admitted tenancy of the Rizal Avenue wing by various tenants.

"(8) The admitted occupancy by Republic Vocational School of the Echague wing of the building and
the presence therein at the time of the fire of tables and bookcases among the articles Camilo said he saw
there."cralaw virtua1aw library

Another contention of the appellants is that the court erred in not requiring the prosecution to present
proof in support of its motion for the discharge of Florencio Camilo before allowing him to be a witness for
the state. This contention is obviously untenable. Section 9, Rule 15 of the Rules of Court, does not require
presentation of proof before a motion for exclusion of an accused to be witness for the state is granted. The
law only requires that hearing thereof be had and, in the case at bar, there has been such hearing, for as we
held in the case of U. S. v. Abanzado Et. Al., 37 Phil., 659.

"It was not the intention of the legislator, by the enactment of Act No. 2709, to deprive the prosecution and
the state of the right to make use of participes criminis as witnesses, but merely to regulate the exercise of
that right by establishing the conditions under which it may properly be exercised.

"The Act leaves the manner of the enforcement of these conditions in the sound judicial discretion of the
courts. If the court errs in the exercise of this discretion end discharges a guilty person who should not have
G.R. No. L-14128 December 10, 1918
THE UNITED STATES vs. SEVERINO VALDES Y GUILGAN
TORRES, J.:
This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First Instance
of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y Bunadia,
with the crime of arson, and, on the 20th of May of the present year, judgment was rendered whereby
Severino or Faustino Valdes u Guilgan was sentenced to six years and one day of presidio mayor and to pay
one-half of the costs. From this judgment this defendant appealed. With respect to Hugo Labarro or
Navarro, the proceedings were dismissed with the other half of the costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from the
house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who
appears to have been a resident of the neighborhood, called Mrs. Lewin and told her that much smoke was
issuing from the lower floor of the latter's house, for until then Mrs. Lewin had not noticed it, and as soon as
her attention was brought to the fact she ordered the servant Paulino Banal to look for the fire, as he did
and he found, so asked with kerosene oil and placed between a post of the house and a partition of the
entresol, a piece of a jute sack and a rag which were burning. At that moment the defendant Valdes was in
the entresol, engaged in his work of cleaning, while, the other defendant Hugo Labarro was cleaning the
horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having been called for the
purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C, drawn up in
the police station, admitted before several policemen that it was he who had set the fire to the sack and the
rag, which had been noticed on the date mentioned. and he also who had started the several other fires
which had occurred in said house on previous days; that he had performed such acts through the
inducement of the other prisoner, Hugo Labarro, for they felt resentment against, or had trouble with, their
masters, and that, as he and his coaccused were friends, he acted as he did under the promise on Labarro's
part to give him a peso for each such fire that he should start. lawphi1.net
The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police station,
although he denied having placed the rag and piece of jute sack, soaked with kerosene, in the place where
they were found, and stated, that it was the servant Paulino who had done so. He alleged that, on being
arraigned, he stated that he had set fire to a pile of dry mango leaves that he had gathered together, which is
contrary to the statement he made in the police station, to wit, that he had set the fire to the said rag and
piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other
defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve the
Lewin family, to burn the house above mentioned. occupied by the latter and in which this defendant was
employed, some policemen were watching the building and one of them, Antonio Garcia del Cid., one
morning prior to the commission of the crime, according to his testimony, saw the defendant Valdes
climbing up the wall of the warehouse behind the dwelling house, in which warehouse there was some
straw that had previously been burned, and that, when the defendant noticed the presence of the
policeman, he desisted from climbing the wall and entering the warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an upright of the
house and a partition of the entresol of the building, thus endangering the burning of the latter, constitutes
the crime of frustrated arson of an inhabited house, on an occasion when some of its inmates were inside of
it.. This crime of provided for and punished by article 549, in connection with articles 3, paragraph 2, and
65 of the Penal Code, and the sole proven perpetrator of the same by direct participation is the defendant
Severino Valdes, for, notwithstanding his denial and unsubstantiated exculpations, the record discloses
conclusive proof that it was he who committed the said unlawful act, as it was also he who was guilty of
having set the other fires that occurred in said house. In an affidavit the defendant admitted having made
declarations in the police station, and though at the trial he denied that he set fire to the sacks and the rag
which were found soaked in kerosene and burning, and, without proof whatever, laid the blame unto his
codefendant, the fact is that confessed to having set fire to a pile of dry leaves whereby much smoke arose
from the lower part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she
should have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback
noticing a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the
accusation he made against the servant Paulino, who apparently is the same persons as the driver Hugo
Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts conceive
to the burning of said house, but nevertheless., owing to causes independent of his will, the criminal act
which he intended was not produced. The offense committed cannot be classified as consummated arson by
the burning of said inhabited house, for the reason that no part of the building had yet commenced to burn,
although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near partition of the
entresol, the partition might have started to burn, had the fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with the commission
of the crime, and therefore the penalty of presidio mayor immediately inferior in degree to that specified in
article 549 of the Penal Code, should be imposed in its medium degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the modification however,
that the penalty imposed upon the defendant shall be given eight years and one day of presidio mayor, with
the accessory penalties prescribed in article 57 of the Code. The defendant shall also pay the costs of both
instances. So ordered.
G.R. No. L-31770 December 5, 1929
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ANTONINO HERNANDEZ, defendant-appellant.
Crispin Oben for appellant.
Attorney-General Jaranilla for appellee.

AVANCEÑA, C.J.:
In the judgment appealed from the appellant was convicted of arson and sentenced to eight
years and one daypresidio mayor, with the accessaries of law, and the costs.
On February 3, 1929, Miguel Dayrit, the offended party, was living with his children in his
house situated in the barrio of Duque, municipality of Mabalacat, Province of Pampanga. At a
little past midnight on that date, and after Miguel Dayrit had retired, he noticed that the
thatched roof of his house was on fire. He got up to fetch some water with which to
extinguish the fire, when, looking out of the window, he saw the appellant beside the house,
carrying a stick (Exhibit A). Miguel Dayrit shouted for help, and started to put out the fire,
which he succeeded in doing, after a small part of the roof had burned. In answer to his cries
for help, Artemio Tanglao repaired to the place and saw the defendant running away. Daniel
Mallari also came, and on his way to the house met the defendant.
The appellant knew that Miguel Dayrit and his children lived and were in the house that
night.
The testimony of the offended party, corroborated by that of Artemio Tanglao and Daniel
Mallari, establishes beyond all doubt the fact that it was the appellant who set fire to the
house. The stick which Miguel Dayrit saw in the appellant's possession on that night was
found leaning against the house with the end burnt and a rag soaked with petroleum
dangling from it. Daniel Mallari recognized it as the stick which the appellant used in getting
guava fruits.
It should be noted, moreover, that prior to the crime, the appellant and the offended party,
Miguel Dayrit, had some disagreements because the offended party suspected that the
appellant was stealing his paddy piled up behind his house. The offended party
communicated his suspicions to the barrio lieutenant, who, together with the complainant,
went to the appellant's house, but the latter armed with a bolo, barred their way, saying that
he would cut them to pieces, and that he recognized no authority. This characteristic
violence on the part of the appellant was also shown when, in pursuance of this information,
he was arrested; for he refused to give himself up.
The trial court held that the crime committed was only frustrated arson. We agree with the
Attorney-General that the crime was consummated. The appellant did in fact, set fire to the
roof of the house, and said house was in fact partially burned. With this, the crime of arson
was consummated, notwithstanding the fact that the fire was afterwards extinguished, for,
once the fire has been started, the consummation of the crime of arson does not depend
upon the extent of the damage cause. This court has so held in the cases of United States vs.
Go Foo Suy and Go Jancho (25 Phil., 187) and United States vs. Po Chengco (23 Phil., 487).
The crime of arson having been consummated, as it appears from the facts thoroughly
proved, article 549 of the Penal Code is applicable herein, with the corresponding penalty
of cadena temporal to life imprisonment. And as the aggravating circumstance of nighttime
must be taken into consideration, as having been doubtless sought by the appellant in order
to insure the commission of the crime, the penalty must be imposed in its maximum degree.
In view of these considerations, the judgment appealed from is modified, and in accordance
with article 549 of the Penal Code the appellant is found guilty of the crime of arson,
committed in a dwelling, knowing that within it were the offended party and his children;
and, considering one aggravating circumstance in the commission of the crime, the
defendant is sentenced to life imprisonment, with the accessaries, and the costs.
The appellant is an old man, about 85 years of age, and in view of this, and of the fact that
the damage caused was very slight, the Attorney-General recommends that, in pursuance of
the second paragraph of article 2 of the Penal Code, these facts be explained to the
Executive, for the exercise of his clemency to such an extent as he may deem proper. The
suggestion is accepted, and it is hereby ordered that the clerk forward a copy of this
decision, once it becomes final, to the Governor-General for consideration. So ordered.
G.R. No. 307 September 12, 1902
THE UNITED STATES, complainant-appellee,
vs.
AGUSTIN VILLANUEVA, defendant-appellant.
Emilio Gaudier, for appellant.
Assistant Attorney-General Constantino, for appellee.
TORRES, J.:
Appeal by the defendant, Agustin Villanueva, against the judgment of the 18th of November,
1897, rendered in case No. 5606 by the court of La Laguna, for attempted estafa, by which he
was condemned to pay 500 pesetas fine, or to the subsidiary personal penalty, and to the
payment of one-third part of the costs.
On the 25th of November, 1884, Celestino Borlasa filed a complaint before the local
authorities of the town of Lilio against Agustin Villanueva, stating that he, accompanied by
Juan Urna, had gone to the complainant's house, and, after having examined the house, by
order, as stated by Villanueva, of the forestry officer, Hermenegildo de Ocampo, and having
observed that the house was built with new lumber, as well as several other houses also
examined, demanded of the complainant the sum of 6 pesos and 2 reals for the purpose of
avoiding a fine and with a view of preparing a petition for obtaining a free permit to cut
timber. This amount the complainant was unable to pay, and Villanueva refused to receive 3
pesos, which was offered him by Borlasa.
This fact, proven by the testimony of two trustworthy witnesses, constitutes the crime of
attempted estafa, defined and punished by section 1 of article 534 and section 1 of article
535 in connection with article 66 of the Penal Code. The facts established by the evidence in
the case show that the attempt was made to obtain the sum of 6 pesos and 2 reals by
fraudulent representations and for purposes not justified or authorized by the forestry law.
If the estafa was not consummated it was because the complainant either could not or would
not pay the amount demanded, and simply offered a little less than half, which the
defendant, in turn, refused to accept.
The defendant, Agustin Villanueva, is guilty, as author by direct participation, of the crime of
attempted estafa of a sum not exceeding 250 pesetas, by his own confession. Although the
defendant did not succeed in consummating the crime of obtaining the money upon the
fraudulent pretext of having been authorized by the forester, Hermenegildo de Ocampo, an
employee of the Forestry Bureau, the fact is that he attempted to obtain the amount
demanded and refused to receive the 3 pesos which the complainant offered him, this being
less than one-half of the amount demanded.
All these facts are established by the testimony of the two witnesses there present and by
another witness, who affirms that he saw Villanueva in conversation with the complainant,
Celestino Borlasa, although not aware of the subject of their conversation.
The unsupported allegation by the defendant that he had acted under the orders and upon
the authority of the ranger, Ocampo, who was not arrested and is still absent, can not serve
as an excuse or relieve him from the charge brought against him, inasmuch as the forester
was not authorized or empowered to give such orders, not is such an action authorized by
law.
In the commission of the crime, and for the purpose or the imposition of the penalty, the
concurrence of the aggravating circumstance of No. 18 of article 10 of the Code must be
considered, because Villanueva has been already convicted by final judgment of three other
crimes of estafa, and, therefore, no mitigating circumstance being present to offset the
effects of the aggravating circumstance, the defendant must suffer the penalty prescribed by
the law in its maximum degree, although, in consideration of the provisions of article 83 of
the Code, and it not appearing that the financial position of the defendant is such that he
may be classed as a rich man, which appears from the nature of the crime, the fine to which
he becomes liable should not be a heavy one, and therefore, by virtue of articles 26, 83, 92,
and those above cited, section 50 of General Orders, No. 58, and the law of August 10, 1901,
we are of the opinion that the judgment appealed should be affirmed with reference to the
defendant, Villanueva, but in case of inability to pay the fine, the subsidiary imprisonment
can not exceed one month and one day, the preventive imprisonment suffered to be
computed, the defendant to pay one-third of the costs of this instance, without special
mention as to the defendant Juan Urna acquitted by the court below.
So ordered.
G.R. No. L-17021 February 23, 1921
THE UNITED STATES vs. ISAAC DOMINGUEZ
VILLAMOR, J.:
The fact which gave rise to the present appeal is described in the information as follows:
That on or about 19th day of January, 1920, in the city of Manila, Philippine Islands, the said
accused who was a salesman at the Philippine Education Co., Inc. did then and there receive the
sum of seven pesos and fifty centavos (pesos 750) from one Lamberto Garcia as payment for five
copies of Sam's "Practical Business Letters" bought from the store of the said company, which
amount should have been turned over and delivered by him (accused) to the company's cashier or
his authorized representative therein; that instead of delivering the said amount to the said
cashier or his representative therein, which he knew it was his obligation to do, the said accused
did then and there willfully, unlawfully and criminally misappropriate and convert it to his own
personal use to the damage and prejudice of the said Philippine Education Co., Inc. in the sum of
seven pesos and fifty centavos (pesos 7.50) equivalent to 37 ½ pesetas.
At the close of the trial the court found the accused guilty of the crime of estafa of the sum of pesos 7.50 and
sentenced him to be imprisoned for two months and one day of arresto mayor, with the accessories
provided by law, and costs.
Appeal having been taken to this to this Supreme Court, the counsel for the accused assigns, as error
committed by the court, its finding that the accused is guilty of the crime charged and its action in imposing
upon him the penalty corresponding to a principal in the crime of estafa.
It is proved that the accused, as salesman of the bookstore "Philippine Education Co., Inc." sold on the
morning of January 19, 1920, five copies of Sams' "Practical Business Letters," of the value of seven pesos
and fifty centavos (pesos 7.50), which the accused should have immediately delivered to the cashier but
which he did not deliver, until after it was discovered that he had sold the books and received their value
without delivering it to the cashier, as was his duty.
The accused alleges that he did not deliver the money immediately after the sale, because the cash boys
were very busy as well as the cashier, while he had to go to the toilet for some necessity, and upon coming
out, the cashier caught him by the arm and asked him for the money, and then he delivered the sum of pesos
7.50 to him; and that it was not his intention to make use of said money. Such claim, nevertheless, does not
exempt him from the criminal responsibility which he had incurred, for the evidence before us shows
clearly that he attempted to defraud the "Philippine Education Co., Inc." Upon being asked for the money, he
first said that a woman, whom he did not know, bought books, without having paid, for the reason that she
was, according to herself, in a hurry; and, latter, he went out of the store to talk to a friend who was
employed in the Pacific Mail Steamship Co. to tell him that if anyone should ask him if he (the employee of
the Pacific Mail Steamship Co.) bought books that morning in the store of the "Philippine Education
Company" he should answer affirmatively. Furthermore, he had also declared to the manager of the
bookstore that he used part of the money in purchasing postage stamps.
There can be no doubt as to the injury which the accused would have caused to the interests of the company
in retaining for himself the proceeds of the sale in question.
But the question of law to be decided is whether the fact that the accused retained in his possession the
proceeds of the sale, delivering them to the cashier only after the deceit had been discovered, constitutes a
consummated offense or merely a frustrated offense of estafa.
Should the fact that the accused attempted to get certain bundles of merchandise at the station, by means of
the presentation of the tag sent to the consignee in a letter which must have been taken from the mail, it not
having been proven by whom or how it came to the accused, who did not attain their object, because the
bundles had been withdrawn two or three days before by the consignee, be considered as an attempted or
frustrated offense? The supreme court of Spain in its decision of January 3, 1876, in deciding the appeal
taken by the accused, who alleged that the act constituted only an attempt and not a frustrated estafa,
declared that the appeal was not well taken, on the ground that the offense is frustrated when the accused
performs all the acts of execution which would have produced the crime, and, nevertheless, do not produce
it by reason of causes independent of the will of the actor, and that in said case the appellant, together with
his coaccused attempted to take possession of the two bundles which they believed were at the station, by
going there and presenting the tag, and they did not succeed because these bundles had already been taken,
which constitutes the frustrated crime.
In his commentaries on the Penal Code Viada asks the following questions: "Is immediate return by the
accused of the thing he intended to convert, as soon as the injured party found out the fraud committed,
sufficient to divest the act of its consummated character and to place it within the limits of a mere
frustrated offense?" "The religious society of Santa Clara deposited, in the year 1868, with D. Manuel Nuñez
an oil painting on copper, but when they demanded it a few years afterwards, the latter delivered to them
the same frame but with merely a copy of the original painting, which, upon his order, a painter had made
for the sum of 40 pesetas. The substitution having been afterwards noted, the society protested and Nuñez
returned the original, valued at 125 pesetas, and in turn obtained the copy referred to. But, in the meantime
a criminal action having been instituted upon this fact and prosecuted to trial, the Madrid court, holding
that Nuñez had defrauded and injured the society in the amount of the difference in the value of the
paintings, sentenced him, as principal in the consummated crime of estafa, defined in number 5 of article
548 of the Code, to the penalty of two months and one day of arresto mayor, together with the accessories,
and costs. An appeal having been taken from said judgment, on the ground that it violated among others,
article 3 of the Code, the Supreme Court, declaring that the appeal was well taken, held that
the estafa committed was mere frustrated estafa. 'Considering that while the acts of D. Manuel Nuñez
appear to have been actuated by the desire to convert the painting to his own use and the consequent injury
of its owner, and that to that end he performed all the acts which should produce the crime as a
consequence, nevertheless, the injury and the appropriation were not realized, and therefore the crime was
not consummated because of a cause independent of his will, which was the discovery of the substitution of
the plate, after which the owner obtained what belonged to him without the objection of the depositary and
without any delay juridically appreciable — therefore, the trial court in holding as consummated an offense
that was frustrated, violated, in failing to apply it, article 3 of the Code.' " (1 Viada, 65.)
The same author puts and solves the following question: "Where a person appointed Commissioner to make
collection of debts due to the public treasury for real estate taxes owing by a mining company goes to a
store and acts of the owner thereof a certain sum in order that he might not file a complaint by virtue of
which the owner might have to pay a big fine because the establishment was not registered in the
corresponding class, and the owner pays him part of the sum demanded, but he is in the act caught by
agents of the authority who were detailed for the purpose, is he guilty of the consummated or simply
frustrated crime of estafa? The criminal branch of the court of Seville found him guilty of the former and
sentenced him to the penalty of two months and one day of arresto mayor. But, appeal having been taken
from the judgment on the ground that the fact constituted only an attempt to commit estafa, the Supreme
Court, while not of the same opinion, however, held that the crime committed was merely frustrated:
'Considering that while the acts executed by the appellant should be qualified, not merely as an attempt, as
claimed by the appellant, inasmuch as he did not limit himself to commencing the acts of execution of the
crime, but as a frustrated crime because the accused performed all the acts of execution which should
produce the crime as a result, such s the obtaining of the money exacted, in this manner apparently
realizing his object, but which acts nevertheless did not produce the crime by reason of a cause
independent of his will, which cause in this case was the appearance of agents of the authority at the place,
as a consequence of the complaint filed by Da. Candelaria Polanco to the treasury deputy, a fact which
prevented the consummation of the crime prosecuted, which would have consisted in completely divesting
the owner of his money, a result prevented by the vigilance of the authorities: Considering that in not so
holding the trial court erred on a point of law, as claimed, and violated the articles of the Penal Code to
which the appeal refers, etc., etc.' " (Viada, Suppl. 1887-1889, p. 8.)
Applying the doctrine, established by the supreme court of Spain in the decisions cited, to the case at bar,
we are of the opinion, and so hold, that the appellant is guilty of the frustrated offense of estafa of 37 ½
pesetas, inasmuch as he performed all the acts of execution which should produce the crime as a
consequence, but which, by reason of causes independent of his will, did not produce it, no appreciable
damage having been caused to the offended party, such damage being one of the essential elements of the
crime, due to the timely discovery of the acts prosecuted.
From what has been said, it results that the judgment appealed from should, as it is hereby, modified, and
the accused is sentenced to pay a find of 325 pesetas, with subsidiary imprisonment in case of insolvency,
and to pay the costs of the trial.
So ordered.
G.R. No. L-45830 October 3, 1985
TEOPISTO S. SALCEDO vs THE HONORABLE COURT OF APPEALS AND PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari of the decision of the respondent Court of Appeals now
Intermediate Appellate Court, affirming the decision of the City Court of Iligan City which convicted the
petitioner of the crime of estafa.
The information dated May 6, 1968 charged the petitioner with estafa as follows:
That on or about March 18, 1968, in the City of Iligan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, by means of false manifestations
and fraudulent misrepresentations, did then and there willfully, unlawfully and
feloniously defraud one Basilio F. Ponce in the following manner, to wit: the said accused,
being then the Branch Manager of the Manhattan Guaranty Company, Inc., Iligan Branch,
by falsely pretending that the Manhattan Guaranty Company, Inc., is authorized to sell
and/or issue insurance policies, and knowing very well that said manifestations and
representations to be false and fraudulent, induced the said Basilio F. Ponce to have his
building insured against fire and the said Basilio F. Ponce deceived by the
misrepresentation of the accused, agreed and gave to the accused, the amount of
Pl,095.80 as premium on Fire Policy No. LOMG 4602 issued March 14, 1968 and to expire
March 14, 1969, later to find out that the said Manhattan Guaranty Company, Inc., was
suspended by the Insurance Commissioner and is not authorized to sell or issue
insurance policies, to the damage and prejudice of said Basilio F. Ponce in the
aforementioned sum of P1 095.80, Philippine Currency.
Contrary to and in violation of Article 315, paragraph 4, 2(a) of the Revised Penal Code.
The evidence for the prosecution is summarized in the People's memorandum as follows:
Petitioner Teofisto Salcedo was, on March 14, 1968, the local branch manager of
Manhattan Guaranty Company, Inc. at Iligan City engaged in the business of property
insurance (pp. 19-22, tsn., Dec. 22, 1970). Said company, however, had been suspended
from operating and eventually closed by the Insurance Commissioner since February 21,
1968 (p. 13, Id.). The petitioner was aware of the suspension and closure order but he
deliberately concealed the same from complainant Basilio F. Ponce when he issued on
March 18, 1968 a P50,000.00 fire insurance policy unto the complainant, and collected
the amount of Pl,095.80 purportedly as premium thereof (p. 7, Petition; pp. 5-8, tsn., Id.;
Exhs. "C" and "C-1", Rec.).
Basilio Ponce, however, came to know of such status of Manhattan Guaranty thereafter,
or on March 27, 1968, and so he immediately went to see the petitioner and demanded
from him the premium he had paid (p. 14, tsn., Id.). But the petitioner refused to make
any refund, and instead, assured Ponce that his company was still financially sound (pp.
14-15, tsn., Id.). A formal letter of demand for the return of his P1,095.80 (Exh. "E") was
likewise made by Ponce. To this the petitioner merely answered that the main office of
Manhattan Guaranty in Manila was already closed although at that time, the amount of
P1,095.80 was still at his disposal as the same was remitted only on December 25, 1968
to the company's Cebu City Branch (p. 7, Petition).
On the other hand, the petitioner presented his own version of the facts. The defense evidence is
summarized in the decision of the respondent appellate court as follows:
To establish his innocence, the appellant adduced evidence alleging that he cannot be
held criminally liable because he was not aware then that his company was suspended
and therefore was forbidden to engage in business transaction by the Insurance
Commissioner. 'That although he had read about the said suspension in the newspapers,
he was only officially informed of the reported suspension and stoppage of business
transaction when he received the Memorandum (Exh. "I") dated February 26, 1968 from
the Branch Manager of the Company of Cebu City Branch Office; and that such receipt
was only after two (2) days from the issuance of the fire insurance policy to the
complaining witness, Basilio Ponce.
As a witness for the defense, Jesus Cortes, the Production Manager of the local branch
office in Iligan City, also testified corroborating the allegation of the accused. That it was
only on March 27, 1968, two (2) days after the issuance of the policy to the complaining
witness and,coincidentally the same day that complaining witness demanded the return
of his premium payment, that he (Cortes) was shown by the accused the memorandum
dated February 26, 1968 directing them to stop negotiating business.
On January 13, 1971, Branch II of the City Court of Iligan City convicted the petitioner of the crime of estafa.
The dispositive portion of the decision reads as follows:
Premises considered, the Court finds the accused, Teopisto S. Salcedo, GUILTY beyond
reasonable doubt of the crime of ESTAFA and hereby imposes upon him the penalty of
prison correccional in its minimum period of SIX (6) MONTHS and ONE (1) DAY and to
pay the amount of P1,095.80 to the offended party and in case of insolvency to suffer
subsidiary imprisonment at the rate of P8.00 a day but shall not exceed one-third of the
principal penalty imposed upon the accused, and to pay the cost of the proceedings.
On December 28, 1976, the respondent Court of Appeals affirmed the judgment of conviction rendered by
the trial court but deleted the portion imposing subsidiary imprisonment in case of insolvency .
A motion for reconsideration was denied in a resolution dated March 9, 1977.
The decisive point in this petition is the determination of whether or not the petitioner employed false
pretenses or fraudulent representations in the negotiations and issuance of the fire insurance policy.
The petitioner first argues that since the transaction was one between the Manhattan Guaranty Company,
Inc., through its agent, Mr. Cortes and the complainant, the act of Mr. Cortes should be attributed to him
alone or to the Manhattan Guaranty Company, Inc. as the principal and not to the petitioner. The petitioner
submits that there is no evidence showing that he intervened in behalf of the company in the negotiation
and conclusion of the questioned policy. He claims that it was Mr. Cortes alone who negotiated and
concluded the contract of insurance and who received the premium payment.
The petitioner's contentions have no merit. The petitioner was then the local branch manager of the
Manhattan Guarantee Company, Inc. When he signed and issued the said policy and collected the premium
payment thereof in the amount of P1,095,80, he had knowledge that his company was no longer authorized
to conduct insurance business. This knowledge makes him liable under paragraph 2(a) of Article 315 of the
Revised Penal Code which provides that:
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or
imaginary transactions; or by means of other similar deceits.
To secure a conviction for estafa under par. 2(a) of Article 315 of the Revised penal Code, the following
requisites must concur, to wit: (1) that the accused made false pretenses or fraudulent representations as to
his power, influence, qualifications, property, credit, agency, business or imaginary transactions: (2) that
such false pretenses or fraudulent representations were made prior to, or simultaneous with the
commission of the fraud; (3) that such false premises or fraudulent representations constitute the very
cause which induced the offended party to part with his money or property, and (4) that s a result thereof,
the offended party suffered damage. All these requisites are present in the case at bar.
That the petitioner made false pretenses or fraudulent representations to the complainant in the issuance
of the fire insurance policy is shown by the following uncontroverted fact, to wit: (1) the petitioner himself
admitted that he was aware of the suspension order of the Insurance Commissioner from the daily papers
before he signed and issued the fire insurance police and collected the premium payment from the
complainant on March 25, 1968; (2) on March 27, 1968, the petitioner was officially informed of the
suspension and stoppage of business transactions more than a month earlier and published in the
newspapers and that on the same day, the complainant, Basilio Ponce demanded the return of his premium
payment but there was no immediate refund despite the fact that the amount was still at the petitioner's
disposal as the same was remitted to the company's Cebu City Branch only on December 25, 1968; (3) with
full knowledge and having official information to the contrary the petitioner assured the complainant that
the Manhattan Guaranty Company, Inc. was still financially sound; and (4) on June 23, 1968, the
complainant wrote a formal letter of demand for the return of his P1,095.80 but the petitioner replied that
their main office in Manila was already closed inspite of his still having the money with him.
The deliberate concealment by the petitioner of the fact that his company was no longer authorized to
engage in the business of insurance when he signed and issued the fire insurance policy and collected the
premium payment constitutes false representations or false pretenses. The complainant relied upon these
false pretenses. After reading in the newspapers that the Insurance Commissioner had suspended his
company from operating, it was the petitioner's duty to stop the solicitation of insurance policies while
ascertaining the veracity of the news reports. Instead, he allowed business to go on as usual. He signed and
issued the insurance policy. And knowing not only through the newspapers but also from an official
communication from his own superiors that business operations were already prohibited when he issued
the insurance policy and received premium payments, he refused to return the money thus collected long
after the Insurance Commissioner had prohibited operations.
The petitioner was the one liable and not the production manager, Mr. Jesus Cortes. The latter acted in good
faith. As stated by the Solicitor General: xxx xxx xxx
... When Mr. Cortes negotiated to insure the complainant's property against fire, the
former appeared to have no knowledge that the Insurance Commissioner already
ordered the suspension and closure of their company.
On the other hand, the accused was aware of such suspension and closure order but he
did not inform Mr. Cortes about it. It was only on March 27, 1968, after the insurance
policy had been issued and the corresponding premium payment had been collected did
the accused show to Mr. Cortes the Memorandum directing them to stop transacting
insurance business (p. 4, Decision). Consequently, Mr. Cortes could not be held liable
therefor as he was then acting in good faith.
xxx xxx xxx
The petitioner also argues that the signing of the policy by the petitioner was subsequent to the inducement
and misrepresentations, if any, made by Mr. Cortes.
This is wrong. The misrepresentation here was committed from the time the complainant was induced to
insure his property and up to the time the policy was issued upon the payment of the requisite premium.
The records reveal that the signing of the policy, its issuance, and the initial payment of the premium were
all done on
March 25, 1968.
The petitioner tried to prove that he signed the questioned policy in the spirit of goodwill and good faith,
because at the time he signed the policy, he had no official knowledge regarding the suspension order of the
Insurance Commissioner. He claims that he signed the questioned policy as a matter of course and following
standard operating procedure, he being the local manager of the local branch whose signature is necessary
for the policy to be validly issued.
The signing and issuance of the insurance policy cannot be a simple matter of course because at the time
the policy was issued, the Manhattan Guaranty Company, Inc. was no longer authorized to conduct
business. Aware that his company had been suspended and ordered closed by the Insurance Commissioner,
the petitioner should have informed the complainant of the suspension and closure instead of signing and
issuing fire insurance policies. He should not have received the premium payment paid by the complainant.
At the very least, he should have returned the money still in his hands when he received official notice of
the closure. What the petitioner, however, did was to deliberately conceal the fact that his company was no
longer authorized to engage in the insurance business from the complainant. He continued making money
when it was already illegal to do so.
The contention of the petitioner that there was no immediate refund of the premium paid by the
complainant because the same was already remitted to their office in Cebu City is not supported by the facts
on record.
The records show that the complainant attempted twice to recover the amount he paid. The first was on
March 27, 1968 when he orally made a demand. The petitioner refused to refund the money but instead
gave assurances that their company was still financially sound. Second, on June 23, 1968, the complainant
sent a formal letter of demand but the petitioner's only answer was that their main office in Manila was
already closed. It is important to note that on these two instances, the petitioner did not return the
premium payment paid by the complainant despite the fact that the said amount was still at his disposal
because the same was remitted to their Cebu City Branch only on December 25, 1968. It should be noted
that the remittance was not only delayed but it was after the May 6, 1968 filing of the information against
him.
The petitioner argues that prior to his receipt of the March 26, 1968 memorandum officially informing him
of the closure of their company, his only knowledge about the suspension of their company was through
newspapers which according to him was hearsay information. It is sufficient to state here that what is
important is the fact that the petitioner admitted having prior knowledge of the suspension and closure of
their company when he signed and issued the policy in question and that he believed the same to be true.
Finally, the petitioner tried to prove that the complainant, Mr. Ponce, admitted his prior knowledge of the
suspension of the Manhattan Guaranty Company, Inc., thus, he was not at all deceived. The petitioner cites
the following excerpts from the complainant's testimony in support of this contention:
Q In your reading of the Manila Times, was there ever occasion that you came across an
information regarding insurance co companies?
A Yes, sir, one of the newspapers that I have read sometime in the month of August, 1968. I can not
exactly remember, published that the Manhattan Guaranty Co., was one of the insurance
companies that was closed.
Q Will you kindly inform the Honorable Court what relation has that Exh. "H" to the portion of the
Manila Times Publication that you saw?
A This is the clipping from the Manila Times dated October 18, 1967, which was presented to the
office of the Fiscal. I was the one who presented that to the office of the City Fiscal (Tsn., July 10,
1968, pp. 21-22).
We note that the suspension in this case was imposed only on February 21, 1968 by the Insurance
Commissioner. On the other hand, the Manila Times item read by the complainant was dated October 18,
1967 or four (4) months before the said suspension. Obviously, the news report could not have referred to
the future suspension on February 21, 1968 but to the prior suspension sometime in 1967 "which the
company was able to lift." (Petition, p. 18, Rollo, p. 24) In other words, the prior knowledge mentioned by
the petitioner referred to the 1967 suspension and not to the later suspension on February 21, 1968.
The respondent Court of Appeals, however, erred when it modified the penalties imposed by the trial court
by merely deleting that portion which imposed subsidiary imprisonment. For purposes of the
Indeterminate Sentence Law, the minimum term of the indeterminate sentence is one degree lower than
the penalty prescribed by the Code, and the maximum penalty is the penalty that can properly be imposed
in view of the attending circumstances of the case.
WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that the petitioner
should suffer an INDETERMINATE PENALTY of THREE (3) MONTHS of ARRESTO MAYOR as (minimum) to
ONE (1) YEAR and EIGHT (8) MONTHS of PRISON CORRECCIONAL as (maximum).
SO ORDERED.
G. R. No. 160188
ARISTOTEL VALENZUELA y NATIVIDAD vs
PEOPLE OF THE PHILIPPINES NACHURA, JJ. and HON. COURT OF APPEALS,
June 21, 2007
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively
concedes having performed the felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in two well-known decisions[1] rendered
decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in
both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this
Court.
As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of
frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory treatment of the
question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition
now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission
under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner
Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within
the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then
manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an
identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of
detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where
Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged
with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking
space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the
parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving
the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.[8]
The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams,
and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office before they were transferred on the
same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears
from the police investigation records that apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in
connection with the incident. However, after the matter was referred to the Office of the Quezon City
Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in
Informations prepared on 20 May 1994, the day after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been
innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they
were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station.
Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that
they heard the gunshot fired by Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their
detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,[13]
had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to
Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at
the scene to start running, at which point he was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons
of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was
charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a
bundler of GMS Marketing, assigned at the supermarket though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch
90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision
mayor as maximum.[17] The RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court
of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated
theft since at the time he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this
contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which
expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and
his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he
was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be deemed as consummated or merely
frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered
many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the
interest of this Court, as they modified trial court convictions from consummated to frustrated theft and
involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings
when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they
have not yet been expressly adopted as precedents by this Court. For whatever reasons, the occasion to
define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They
are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in
criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores
are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions,
including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth,
may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay
down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein
on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to
examine whether those theories are correct and should continue to influence prosecutors and judges in the
future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated
theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal
Code.[30]
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated when all the elements necessary for its execution and accomplishment are present. It is
frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the
crime included between the act which begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime.[31] After that point has been
breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender
never passes the subjective phase of the offense, the crime is merely attempted.[33] On the other hand, the
subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the
crime is complete.[34]
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted
felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally enumerated in the code itself,
the task of ascertaining whether a crime is attempted only would need to compare the acts actually
performed by the accused as against the acts that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial
concession that all of the acts of execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of execution. The determination of
whether the felony was produced after all the acts of execution had been performed hinges on the
particular statutory definition of the felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular
requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic
of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and
accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as
material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful
purpose or criminal intent,[37] and essential for criminal liability.[38] It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the
U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts
that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was committed, thereby
presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative
role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is
produced by the acts of execution. For example, the statutory definition of murder or homicide expressly
uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim,
and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements
are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take personal property of another
without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its
owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of
the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or
other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means
by which theft may be committed.[41] In the present discussion, we need to concern ourselves only with
the general definition since it was under it that the prosecution of the accused was undertaken and
sustained. On the face of the definition, there is only one operative act of execution by the actor involved in
theft ─ the taking of personal property of another. It is also clear from the provision that in order that such
taking may be qualified as theft, there must further be present the descriptive circumstances that the taking
was with intent to gain; without force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of
persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman
law as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property
belonging to another against the will of the owner,[43] a definition similar to that by Paulus that a thief
handles (touches, moves) the property of another.[44] However, with the Institutes of Justinian, the idea
had taken hold that more than mere physical handling, there must further be an intent of acquiring gain
from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam
usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both
the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize
theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing.[47]
However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking[48] or an intent to permanently deprive the owner of the stolen property;[49] or
that there was no need for permanency in the taking or in its intent, as the mere temporary possession by
the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50]
Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an
intent to permanently deprive the owner of his property to constitute an unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case,
the moment petitioner obtained physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and accomplished without the consent of the SM Super
Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have
afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6
of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been
frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a
consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator.
There are clearly two determinative factors to consider: that the felony is not produced, and that such
failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on
the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not
produced, despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how
exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law that theft is already produced upon the
tak[ing of] personal property of another without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after
he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it
appears that he was under observation during the entire transaction.[54] Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying
that neither circumstance was decisive, and holding instead that the accused was guilty of consummated
theft, finding that all the elements of the completed crime of theft are present.[55] In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of
Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of
taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by
the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering
the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the
record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him
in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by
him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter
on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church, the offended party got back the
money from the defendant. The court said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from
the case took a small box, which was also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he
was caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the
money from the moment he took it from the place where it had been, and having taken it with his hands
with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been frustrated, which, however, does not
go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13,
1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal
actors in all these cases had been able to obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves
did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the
money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able
to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the
1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in
each of those cases was consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in
a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter,
perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman;
after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a
policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and
that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not
affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the
pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in
that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no
matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is
another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the
South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the
Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army
rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with
the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The
trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction,
holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of
rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point without further investigation or
checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for
the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to
dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this
proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888
decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del
delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion
de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de
hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado
el acto de tomar la cosa ajena.[62]
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control and
disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the acts of execution had been
performed, but before the loot came under the final control and disposal of the looters, the offense can not
be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The
offense committed, therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was
applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division
of the court that decided it, bore no substantial variance between the circumstances [herein] and in
[Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by
the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who
had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The
truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually
contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated
the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only
of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then
before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling
which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that
the said traditional ruling was qualified by the words is placed in a situation where [the actor] could
dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that
[o]bviously, while the truck and the van were still within the compound, the petitioner could not have
disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely
different from the case where a much less bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is palpably less restricted,[67] though no further
qualification was offered what the effect would have been had that alternative circumstance been present
instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime
of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only
momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had
pronounced that in determining whether theft had been consummated, es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente.
The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the
theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the
stolen items in both cases were retrieved from the actor before they could be physically extracted from the
guarded compounds from which the items were filched. However, as implied in Flores, the character of the
item stolen could lead to a different conclusion as to whether there could have been free disposition, as in
the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x
x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio
ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose
of the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is
consummated upon the voluntary and malicious taking of property belonging to another which is realized
by the material occupation of the thing whereby the thief places it under his control and in such a situation
that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the
theft may be consummated, es preciso que se haga en circumstancias x x x [[70]][71]
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n
theft or robbery the crime is consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing was frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores
rulings. People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump
within view of a police detective, who followed the accused onto a passenger truck where the arrest was
made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held
that the accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.]
Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to
consummate the crime of theft.[74]
In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and
loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were
discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity
with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the
accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which
does not constitute any element of theft, is the use or benefit that the thieves expected from the commission
of the offense.[76]
In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of
an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution
of that felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar
as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated,
theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in
Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner
within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on
appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They were not
able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80]
No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities
who may have bolstered the conclusion. There are indeed evident problems with this formulation in
Empelis.
Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of
execution which should have produced the felon as a consequence.[81] However, per Article 6 of the
Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not
producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was frustrated because not all of the acts of
execution were performed due to the timely arrival of the owner. However, following Article 6 of the
Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially
given that the acts were not performed because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the
two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant
legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we
cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the
Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as
a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal
premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this
jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present
any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for
frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place.
The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman
las cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de
lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos
en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were
handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact,
under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de
lucro, tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado[82]
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the
property is not an element or a statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870
Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to
answer the question whether frustrated or consummated theft was committed [e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was
as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that
decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears
that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as
he fled.[84]
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the
Supreme Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello
Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino
del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto
por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos
disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el
culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de
llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no
es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho
a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta
quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo
hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por
el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87]
(Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the
Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that
questioned whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to
foresee how the execution of all the acts necessary for the completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that
obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is
no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is
hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as
they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores
doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the function of statutory interpretation that comes as
part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in
competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination of acts
are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident
legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not
the courts, which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the power
to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a
manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in
order to strictly determine the wrath and breath of the conduct the law forbids.[89]
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to
freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or
extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus
reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.[90]
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of
personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on
the part of the offender, compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the
question is again, when is the crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the
crime is consummated after the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the
concept of taking itself, in that there could be no true taking until the actor obtains such degree of control
over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been
completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for
future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts
of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent
for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long
enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.[92] And long ago, we asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into
the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition
does not require that the taking should be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.[94]
Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful
taking, which is the deprivation of ones personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only
be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft
cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein
obtained possession over the stolen items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property
does not negate the fact that the owners have already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely
dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused
which does not reflect any legislated intent,[95] since the Court would have carved a viable means for
offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It
is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the
thief. Would this depend on the psychological belief of the offender at the time of the commission of the
crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of
the property, the location of the property, the number and identity of people present at the scene of the
crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the
stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole
lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would
be on whether such property is capable of free disposal at any stage, even after the taking has been
consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was
indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such
will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-completion of the taking due to
these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all
of the acts of execution have been performed. But once all these acts have been executed, the taking has
been completed, causing the unlawful deprivation of property, and ultimately the consummation of the
theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with
the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that
expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of
whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support.
These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of
our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray
decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to
recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative
intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DIGEST VALENZUELA V PEOPLE
FACTS:
• May 19, 1994 4:30 pm: Aristotel Valenzuela and Jovy Calderon were sighted outside the Super Sale Club,
a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago, a security guard
who was then manning his post at the open parking area of the supermarket. Lago saw Valenzuela, who was
wearing an ID with the mark “Receiving Dispatching Unit (RDU)” who hauled a push cart with cases of
detergent of “Tide” brand and unloaded them in an open parking space, where Calderon was waiting. He
then returned inside the supermarket and emerged 5 minutes after with more cartons of Tide Ultramatic
and again unloaded these boxes to the same area in the open parking space. Thereafter, he 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. As Lago
watched, he proceeded to stop the taxi as it was leaving the open parking area and asked Valenzuela for a
receipt of the merchandise but Valenzuela and Calderon reacted by fleeing on foot. Lago fired a warning
shot to alert his fellow security guards. Valenzuela and Calderon were apprehended at the scene and the
stolen merchandise recovered worth P12,090.
• Valenzuela, Calderon and 4 other persons were first brought to the SM security office before they were
transferred to the Baler Station II of the Philippine National Police but only Valenzuela and Calderon were
charged with theft by the Assistant City Prosecutor.
• They pleaded not guilty.
• Calderon’s Alibi: 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. As the queue for the ATM was long, he and
Rosulada decided to buy snacks inside the supermarket. While they were eating, they heard the gunshot
fired by Lago, so they went out to check what was transpiring and when they did, they were suddenly
grabbed by a security guard
• Valenzuela’s Alibi: He is employed as a “bundler” of GMS Marketing and assigned at the supermarket. He
and his cousin, a Gregorio Valenzuela, 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 causing
evryon to start running. Then they were apprehended by Lago.
• RTC: guilty of consummated theft
• CA: Confirmed RTC and rejected his contention that it should only be frustrated theft since at the time he
was apprehended, he was never placed in a position to freely dispose of the articles stolen.
ISSUE: W/N Valenzuela should be guilty of consummated theft.
HELD: YES. petition is DENIED
• Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies.
o A felony is consummated “when all the elements necessary for its execution and accomplishment are
present.”
o 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.”
o 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:
o subjective phase - 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
 if the offender never passes the subjective phase of the offense, the crime is merely attempted
o objective phase - After that point of subjective phase has been breached
 subjective phase is completely passed in case of frustrated crimes
• 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 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.
• “actus non facit reum, nisi mens sit rea” - ordinarily, evil intent must unite with an unlawful act for there
to be a crime or there can be no crime when the criminal mind is wanting
• In crimes mala in se, mens rea has been defined before as “a guilty mind, a guilty or wrongful purpose or
criminal intent” and “essential for criminal liability.”
• Statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is
and overt acts that constitute the crime
• Article 308 of the Revised Penal Code (Elements of Theft):
1. that there be taking of personal property - only one operative act of execution by the actor involved in
theft
2. property belongs to another
3. taking be done with intent to gain - descriptive circumstances
4. taking be done without the consent of the owner - descriptive circumstances
5. taking be accomplished without the use of violence against or intimidation of persons or force upon
things - descriptive circumstances
• Abandoned cases:
o U.S. v. Adiao: failed to get the merchandise out of the Custom House - consummated theft
o Diño: Military Police inspected the truck at the check point and found 3 boxes of army rifles - frustrated
theft
o Flores: guards discovered that the “empty” sea van had actually contained other merchandise as well -
consummated theft
o Empelis v. IAC: Fled the scene, dropping the coconuts they had seized - frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should have produced the felony as a
consequence
 cannot attribute weight because definition is attempted
• The ability of the actor “to freely dispose of the articles stolen, even if it were only momentary.”
o 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.
• Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted
(no unlawful taking) or consummated (there is unlawful taking.)
G.R. No. L-34039 January 16, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LEONCIO VILLEGAS Y TULIAO (alias Lucio Villegas and Francisco Bravo)
ROMUALDEZ, J.:
The defendant was prosecuted for attempted robbery in an inhabited house upon the following
information:
The undersigned accuses Leoncio Villegas y Tuliao (alias) Lucio Villegas (alias) Francisco Bravo of
the crime of attempted robbery in an inhabited house, committed as follows:
That on or about the 9th day of July, 1930, in the City of Manila, Philippine Islands, the said
accused did then and there willfully unlawfully and feloniously, with intent of gain and against the
consent of the owner thereof, enter the dwelling house (first floor) of Miss S. H. Olson, situated at
No. 558 San Luis Street, of said city, by means of force things, to wit: by cutting off and forcibly
breaking open the wire screen of a window of said premises, an opening not intended for entrance
or agress, thru which said accused gained entrance to said house, thus commencing the
commission of the crime of robbery directly by overt acts; that if said accused did not accomplish
his unlawful purpose, that is, to take steal and carry away by means of force upon things, personal
property valued at P1,000 contained in the said dwelling house, it was not because of his own and
voluntary desistance, but because of the timely detection and intervention by third persons who
caused the arrest of said accused.
That the said accused has heretofore been convicted eight (8) times of the crime of theft and twice
(2) ofestafa, by virtue of final judgments rendered by competent courts, the last date of conviction
being on February 3, 1925, and is therefore a habitual delinquent under the provisions of Act No.
3586 of the Philippine Legislature.
All contrary to law. (Pp. 2 and 3, record.).
The defendant appeared in the court below and upon arraignment, pleaded not guilty. On the following day,
however, accompanied by his lawyer, the accused withdrew his plea of not guilty and entered one of guilty.
The trial court found him guilty of the crime charged and as recidivist and habitual criminal, as alleged in
the information, and sentenced him to suffer two months' arresto mayor, under paragraph 2, subsection 5,
article 508 of the Penal Code, plus twenty-one years' imprisonment under Act No. 3586, with costs.
The instant appeal has been taken from that judgment, based upon the following assignments of error:
1. In finding the defendant guilty of the crime of robbery in an inhabited house.
2. In sentencing the defendant to the additional penalty of twenty-one years, in addition to the two
months, because the information alleged that the defendant had been a recidivist ten times.
In support of the first assignment of error, the defense contends that the crime to which the defendant
pleaded guilty was not attempted robbery in an inhabited house, but, at most, trespass to dwelling. When
the defendant pleaded guilty, he admitted certain facts alleged in the information. It is contended that the
allegation in the information touching the defendant's purpose in breaking into the house, together with
subsequent statements, are mere conclusions drawn by the fiscal. We think otherwise. That part of the
information explains the defendant's intent of gain, setting forth as facts that he proposed to take, steal, and
carry away by means of force upon things, personal property valued at P1,000 contained in the dwelling
house, and that if he failed to accomplish said purpose, it was not because of his own voluntary desistance,
but because of the timely detection and intervention by third persons who caused the arrest of said
accused. Perhaps the information could have been drawn up with greater clearness, but considering its
contents, we deem it sufficient. The use of the words of the law in the information is not a defect. (U.
S. vs. Salcedo, 4 Phil., 234; U. S. vs. Grant and Kennedy, 18 Phil., 122; U. S. vs. Go Changco, 23 Phil., 641.) The
absence of a detailed list of the personal property found in the house on that occasion, the value of which is
specifically alleged in the information, vitiates neither the proceedings nor the judgment, not being
jurisdictional in nature. The defendant could have demanded such a detailed list, but he failed to do so and
thereby waived the objection, and, therefore, that question cannot be raised for the first time in the present
instance. (U. S. vs. Del Rosario, 2 Phil., 127; U. S. vs. Mack, 4 Phil., 185 and 291; U. S. vs. Sarabia, 4 Phil., 566;
U. S. vs. Paraiso, 5 Phil., 149; U. S. vs. Aldos, 6 Phil., 381; U. S. vs. Eusebio, 5 Phil., 579; U. S. vs. Aldos, 6 Phil.,
381; U. S. vs. Eusebio, 8 Phil., 574; U. S. vs. Lampano and Zapanta, 13 Phil., 409.).
The second assignment of error is based upon the fact that Act No. 3586, by virtue of which the appellant
was sentenced to twenty-one years of additional imprisonment, took effect in the year 1929 (the original
Act, No 3397, was passed in 1927), and upon the contention that said Act should not be given retroactive
effect unless therein expressly provided; and, that the former offenses alleged in the information had been
punished by judgments rendered prior to the enforcement of said Act. It must be borne in mind that it is a
principle of law in this jurisdiction, unless otherwise provided by statute, that in order to apply such a law
as Act No. 3586, it is not necessary that the former felonies constituting the habitual criminality have been
committed after the law regarding habitual criminals took effect; it is sufficient that the crime, the
prosecution of which gives rise to the application of the additional penalty for habitual criminality, has been
committed after said law became effective. And this rule is in accord with the North American
jurisprudence:
Unless otherwise provided by statute, in order to authorize the infliction of a more severe penalty
upon conviction for a second or a subsequent offense, it is not necessary that the first conviction
should occur subsequent to the enactment of the statute. (16 C. J., 1341.)
The judgment appealed from is affirmed, with the understanding that the appellant is further condemned to
the accessory penalties, and the costs of both instances. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
 other, on the lateral portion of the left chest which is below the nipple line.[13] Dr. Pintucans Medico-Legal
Certificate[14] discloses the following findings:
FINDINGS/DIAGNOSIS
FLORENTINO PADDAYUMAN, vs. PEOPLE OF THE PHILIPPINES
= WOUND, STABBED, MULTIPLE, PENETRATING
# 1 2 cms. Ant. Chest, level 4th ICS, sternal region
SANDOVAL-GUTIERREZ, J.:
# 2 2 cms. Level of 7th & 8th ICS, IMAL
= PNEUMOHEMOTHORAX
Petition for review on certiorari[1] seeking the reversal of the Decision of the Court of Appeals in CA-
Would need medical attendance for more than nine (9)[15] not more than 1 month barring complications.
G.R. CR No. 14628, which affirmed the Decision of the Regional Trial Court (Branch 5) of Tuguegarao,
Cagayan, in Criminal Case No. 1853,[2] convicting Florentino Paddayuman of the crime of attempted
Maximo was confined in the Cagayan Valley Regional Hospital for seven (7) days and in the Lung
homicide. He was sentenced to suffer six (6) months of arresto mayor, as minimum, to two (2) years, four
Center of the Philippines for two (2) days.[16]
(4) months and one (1) day of prision correccional, as maximum, and to pay his victim, Maximo Quilang, the
The accused never denied having stabbed the victim twice. However, he interposed self-defense. He
sum of P3,688.20 as actual damages and P10,000.00 as moral damages.
testified that he went to the house of Casimiro Paddayuman, his cousin, at 7:00 in the morning of March 15,
1991 to assist in the preparation of the wedding of the latters son,[17] At around 6:00 in the evening, he went
The facts of the case are as follows:
home, which is about 35 meters away from the house of Casimiro. At about midnight of the same day, while
he was resting in his house,[18] he was stunned by the incessant barking of dogs. He stood to find out what
On July 24, 1991, an Information for frustrated murder was filed against accused Florentino
the noise was all about.[19] As he looked out at the window, he saw Maximo Quilang setting his granary on
Paddayuman, committed as follows:
fire. At that time, Apolinario Dassil was just about to leave the place.[20] He (accused) then hurriedly went
out of his house and approached Maximo, asking him why he was burning the granary. The latter retorted,
That on or about March 15, 1991, in the Municipality of Tuguegarao, Province of Cagayan, and within the
We intend to burn all of you here.[21] Then holding a lighter, Maximo proceeded to the accuseds house. The
jurisdiction of this Honorable Court, the said accused, Florentino Paddayuman, armed with a sharp pointed
accused tried to stop Maximo but the latter reached for something from the back pockets of his pants.
bladed instrument, with intent to kill, with evident premeditation and with treachery did then and there
Thinking it was a deadly weapon, the accused stabbed Maximo at the left side of his body.[22] Although he
wilfully, unlawfully and feloniously attack, assault and stab one, Maximo Quilang inflicting upon him stab
was wounded, Maximo was able to draw a knife and tried to hit the accused. The latter retaliated and
wounds on his body.
stabbed Maximo again on the chest. Maximo then left and proceeded towards north.[23]
That the accused had performed all the acts of execution which would have produced the crime of Murder
Thereupon, the accused shouted for help in order to put out the fire in his granary. The people in
as a consequence but which, nevertheless, did not produce it by reason of cause independent of his own
Casimiros house, who were helping in the wedding preparation, responded and rushed towards the
will.
burning granary. Among them were Romeo Macanang, a Barangay Tanod, Lucio Tala, Boy Arao, Ramon
Arao and Jose Viredapia.[24]
Contrary to law.[3]
Upon arraignment, the accused pleaded not guilty to the crime charged. Trial ensued thereafter.
To corroborate accuseds claim that his granary was burned that night of March 15, 1991, the defense
To prove its case against the accused, the prosecution presented three witnesses: Maximo Quilang, the
offered the testimonies of Casimiro Paddayuman and Romeo Macanang. Both testified that on that night
victim, Apolinario Dassil and Dr. Cirilo M. Pintucan.
they saw the granary burning but that they did not see who caused it.
In his testimony, Maximo Quilang narrated that on the eve of March 15, 1991, he went to the house of
his uncle, Casimiro Paddayuman, in Barangay Capatan, Tuguegarao, Cagayan, to help in the preparation of
Meanwhile, on June 13, 1991, a criminal complaint for destructive arson was filed with the Municipal
the wedding of the latters son the next day.[4] Maximo then had a drinking spree with Casimiro, Apolinario
Trial Court of Tuguegarao, Cagayan by the accused against Maximo Quilang and Apolinario Dassil. The
Dassil and accused Florentino Paddayuman.[5] While drinking, Maximo admonished the accused not to
complaint, however, was dismissed by the MTC for lack of probable cause. The Provincial Prosecutor
drink too much. Apparently annoyed, the latter left the drinking session.[6] At around 12:00 oclock midnight
affirmed the order of dismissal. On appeal, the said order was sustained by the Secretary of Justice.[25]
of the same day, Maximo also left and went to his house about 100 meters away from the house of
Casimiro.[7] But while on his way home, the accused stabbed Maximo at the left side of his body. [8] The
Going back to the instant case, after trial, the RTC rendered its Decision convicting the accused of
victim asked the accused, Why did you stab me?, to which the accused replied, I will really kill you. At this
attempted homicide only, there being no evidence showing that the stab wounds inflicted on Maximo could
point, the accused again stabbed Maximo at his breast[9] and left, believing his victim was dying.[10] Feeling
cause death had it not for the timely medical attendance. The trial court held that the prosecution failed to
weak, Maximo shouted for help.
prove the qualifying circumstances of treachery and evident premeditation. The dispositive portion of the
decision reads:
Apolinario Dassil, Maximos nephew, was on his way home when he heard a cry for help. Rushing to
the place from where the call came, Apolinario saw his uncle, Maximo, bathed in his own blood. Apolinario
Resultantly, the Court renders judgment finding accused Florentino Paddayuman y Tabao guilty beyond
immediately brought Maximo in a tricycle to the Cagayan Valley Regional Hospital in Tuguegarao.[11]
reasonable doubt of the crime of Attempted Homicide and applying the Indeterminate Sentence Law
sentences him to an imprisonment of SIX (6) MONTHS of Arresto Mayor as minimum to TWO (2) YEARS,
Dr. Cirilo Pintucan, resident physician of Cagayan Valley Hospital, testified that he examined and
FOUR (4) MONTHS and ONE (1) DAY of prision correcional as maximum and to pay Maximo Quilang the
treated Maximo on March 16, 1991.[12]He found two stab wounds on the chest of the victim: one, on the
sum of P3,688.20 as actual damages and P10,000.00 as moral damages and cost.
fourth intracostal stage or on the bone at the middle of the chest, just parallel to the nipple line; and the
SO ORDERED.
On appeal, the Court of Appeals, in its Decision[26] dated April 26, 1995, affirmed the RTC Decision.
Hence, the present petition anchored on the following grounds:
I. ON THE BASIS OF THE FINDINGS OF FACT, IN THE DECISION ITSELF, AND OF THE TRIAL COURT,
PETITIONER CANNOT BE CONVICTED OF ATTEMPTED HOMICIDE; AND
II. THE RULINGS OF THE RESPONDENT COURT OF APPEALS ON IMPORTANT ISSUES, ARE BASED ON THE
MISAPPREHENSION OF EVIDENCE, OR ARE CONTRARY TO LAW AND JURISPRUDENCE; OTHERWISE
PETITIONER SHOULD BE ENTITLED TO ACQUITTAL.[27]
The petition lacks merit.
Petitioner Florentino Paddayuman, by claiming self-defense, assumes the onus to establish his plea
with certainty by credible, clear and convincing evidence; otherwise, conviction will follow from his
admission that he killed the victim.[28] Where self-defense is not corroborated by independent and
competent evidence, and is extremely doubtful, it cannot prosper.[29]
The requisites of self-defense[30] are: (1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of
the person defending himself. The element of unlawful aggression is a condition sine qua non for the
justifying circumstance of self-defense. There can be no self-defense, complete or incomplete, unless the
victim has committed unlawful aggression against the person defending himself.[31]
Here, petitioner testified that Maximo set fire on his granary and that when he tried to stop him, the
latter reached for something from the back pockets of his pants. Petitioner surmised that Maximo was
trying to get a weapon. This prompted petitioner to stab Maximo at the left side of his body. Maximo then
drew a knife and attempted to lunge it at petitioner, but the latter was able to stab the former again, hitting
him on the chest.
Petitioners story was properly rejected by both the trial court and the Court of Appeals because, aside
from being incredible, he failed to establish by strong and convincing evidence that a fire broke out in his
granary that night of March 15, 1991. As aptly observed by the trial court:
First, Florentino never reported the alleged burning of his property to the Barangay Captain of Capatan,
much less to the police authorities of Tuguegarao.His reason that the he expected the Barangay Tanod who
was one of those who helped put off the fire in his granary to make the report, is too shallow to be believed.
Florentinos inaction cannot but nibble into the very foundation of his story for such is not the behavior of a
seriously aggrieved man.
Second, Florentino filed a complaint for destructive arson against Maximo and Apolinario only on June 13,
1991 90 days after the occurrence of the alleged incident and 79 days after the filing of the case at bar
before the inquest court. Why the long delay? Florentino explained that he did not immediately file the case
against Maximo and Apolinario because he thought that Maximo would not file the instant case. This reason,
rather than justify the delay of Florentino in taking action, betrays the purpose of the latter in instituting the
destructive arson case: a counter-charge to be foisted as a bargaining chip for an amicable settlement of the
case at bar.
Third, Florentino did not execute any sworn statement or affidavit regarding the alleged burning
incident. The basis of the Criminal Complaint was the Joint Affidavit (Exhibit 4) of his father Manuel
Paddayuman and cousin Casimiro Paddayuman. x x x.
Fourth, Florentino did not give his counter-affidavit when the case at bar was under preliminary
investigation before the inquest court. The Court is not saying that the giving of a counter-affidavit is
obligatory or its non-submission necessarily suggestive of guilt. The Court however holds that in the
ordinary experience of man, in the normal happenings in this world and in the natural flow of human
events, a person who has injured another in lawful self-defense grabs the first opportunity to disclose his
innocence or to justify his violent act.[32]
Moreover, assuming arguendo that there was indeed a fire incident that night of March 15, 1991,
petitioner failed to prove that Maximo Quilang set the fire in his granary. In fact, defense witnesses,
Casimiro Paddayuman and Romeo Macanang, did not testify that Maximo was the culprit. Their testimonies
simply tend to show that there was a burning incident that night of March 15, 1991. Thus:
TESTIMONY OF CASIMIRO PADDAYUMAN:
Cross Examination
Q Regarding the fire that was set on the granary of Florentino Paddayuman, you were not the
one who noticed it?
A I only came to know that there was something burning through these persons who were
in the kitchen, sir.
Q When they shouted that there was a fire, you look at the direction where the fire was coming.
A No, I did not mind to see the direction where the fire is coming but my daughter was the one
who told me that and crying that the granary of Uncle Florentino Paddayuman is
burning, sir.[33] (Emphasis supplied)
TESTIMONY OF ROMEO MACANANG
Cross Examination
Q You were actually sleeping on the night of March 15, 1991 when you heard the shout of
Jacinto Dassil that the house of Florentino Paddayuman caught fire, is that correct?
A Yes, sir.[34] (Emphasis supplied)
In the face of petitioners failure to establish his plea of self-defense by convincing and satisfactory
evidence, the same must fail. The trial court correctly appreciated the story of the victim, Maximo Makilang,
as credible and plausible, thus:
The Court had observed Maximo to be a credible witness and his story to be plausible. It is also natural,
simple and direct as it jells with all the other circumstances of the incident. x x x. There is no cogent reason
for this Court to disbelieve his version.[35]
As consistently held by this Court, the findings of the trial court as to the credibility of the witnesses is
accorded great respect and even finality because of its opportunity to personally examine and observe the
witnesses while testifying, unless the trial court has disregarded or overlooked some facts and
circumstances of weight and substance which, if considered, might alter the assailed decision or affect the
result of the case.[36] Here, we see no circumstance on record which would warrant the setting aside of the
findings of the lower court.
We agree with the trial court that attempted homicide was committed by petitioner. Under Article 6 of
the Revised Penal Code, there is an attempt when the offender commences the commission of a felony
directly by overt acts but 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.

Here, petitioner stabbed the victim twice on the chest, which is indicative of an intent to kill. Believing
that Maximo was dying, petitioner left.[37] However, there is no evidence that the wounds sustained by the
victim were fatal enough as to cause death. This can be gleaned from the testimony of Dr. Pintucan who did
not categorically state whether or not the wounds were fatal. Circumstances which qualify criminal
responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based
on facts of unquestionable existence.[38] In the instant case, the uncertainty on the nature of the wounds
warrants the appreciation of a lesser gravity of the crime committed as this is in accordance with the
fundamental principle in Criminal Law that all doubts should be resolved in favor of the accused.[39] Thus,
in People v. Pilones,[40] this Court held that even if the victim was wounded but the injury was not fatal and
could not cause his death, the crime would only be attempted.
Furthermore, the crime is attempted homicide because the qualifying circumstances of evident
premeditation and treachery, as alleged in the Information, were not proven by the prosecution.
WHEREFORE, the petition is DENIED. The appealed Decision of the Court of Appeals in CA G. R. CR No.
14628 affirming the Decision of the Regional Trial Court (Branch 5) of Tuguegarao, Cagayan in Criminal
Case No. 1853, is AFFIRMED in toto.
SO ORDERED.
G.R. No. L-27415 November 29, 1927
THE PEOPLE OF THE PHILIPPINE ISLAND, plaintiff-appellee,
vs.
MARCOS MERCADO, defendant-appellant.
Juan T. Santos for appellant.
Attorney-General Jaranilla for appellee.
AVANCEÑA, C.J.:
On the morning of July 23, 1926, in the municipality of Bustos, Province of Bulacan, Rufino
Lopez was attacked and wounded on the left side of the abdomen with a sharp-edge weapon
by his brother-in-law Marcos Mercado. The wound extended to the peritoneal cavity and,
according to Doctor Estrada, who attended the injured man, it was serious enough to have
produced his death had it not been properly treated in time.
A complaint having been filed against Marcos Mercado charging him with the crime of
frustrated murder, he was convicted and sentenced to fourteen years, eight months and one
day reclusion temporal, with the accessories of the law, to indemnify the injured party in the
sum of P780 and to pay the costs of the action.
The evidence of the prosecution shows that while Rufino was gathering ears of corn that
morning, he was suddenly attacked by the accused who inflicted upon him the wound
herein before described. According to the injured party, as soon as he felt himself wounded,
he turned around and only then saw the accused behind him. He caught his aggressor's right
hand which bore the weapon, with his left hand, and with his right tried to snatch the
weapon. While they thus grappled, Alejandro Mercado, who was some distance away and
saw the attack, left the bolo with which he was working on the ground and went towards the
combatants. Alejandro succeeded in wresting the weapon from the accused who stepped
back from them. The accused, however, upon seeing the bolo left by Alejandro on the
ground, picked it up and came back to where the injured party was, in order to again assault
him, but was prevented from doing so by Alejandro's intervention. The accused then asked
the latter for the weapon taken from him, offering in exchange the bolo which he had picked
up from the ground. After Alejandro had received his bolo and had delivered the weapon to
the accused, the latter withdrew.
The lower court found that the qualifying circumstance of treachery was present in
commission of the crime. We do not find such circumstance sufficiently proven. We cannot
admit that the attack took place as related by the offended party; we cannot conceive how,
upon him from behind, the accused could have wounded him on the left side of the
abdomen, having the weapon in his right hand. The position of the wound shows that the
attack must have been made with the accused in front of the injured party. Besides,
Alejandro Mercado, testifying for the prosecution, contradicted from the injured party of
this point. According to said witness, the accused came up from behind but suddenly placed
himself in front of his victim and it was them that he wounded the latter in the abdomen.
As the versions of the occurrence given by the witnesses for the prosecution are
contradictory to each other, we cannot accept them, finding that the crime was committed in
this or that particular way, and hence, we cannot hold that the circumstance of treachery
was present.
It has been clearly shown that the accused intended to kill the offended party, having
executed to this end all the acts that should have produced this result but for Alejandro's
intervention. This is seen not only from the location and seriousness of the wound inflicted
on the injured party, but also from the accused's conduct in picking up Alejandro's bolo after
the latter had disarmed him and in returning to where the injured party was in order to
again attack him with said bolo. lawphi l.net
Counsel for the defense tried to show that the accused acted in legitimate self-defense as it
was the injured party who first provoked and attacked him, taking hold of his neck. We do
not find this defense proven.
The facts established by the evidence of the prosecution constitute the crime of frustrated
homicide, aggravated by the circumstance of the accused being a brother-in-law of the
injured party. The penalty one degree lower than that provided by the law for the crime of
homicide should be imposed.
The judgment appealed from is modified and it being understood that the crime committed
is that of frustrated homicide, the appellant is sentenced to ten years and one day reclusion
temporal, said judgment appealed from being confirmed in all other respects, with the costs
against the appellant.
So ordered.
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every attempt at
sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated rape and punished as such. A mere strafing of
the citadel of passion would then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the
victim since by it he attained his objective. All the elements of the offense were already present and nothing
more was left for the offender to do, having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ
by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the
female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished consummated rape from attempted rape where there
was no penetration of the female organ because not all acts of execution were performed as the offender
merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived
therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of
the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora,
etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to,
or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary
sense. In other words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed amounts merely to attempted
rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in
its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the
two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused — a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the
Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of
their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer
located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was
busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to
rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel
whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused,
"P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants.
He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living within their compound, to chase the
accused. 8Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held
the accused at the back of their compound until they were advised by their neighbors to call the barangay
officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative
results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's
body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed
the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal
to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on
his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this
fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused
him of raping her child. He got mad but restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him
and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or
possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since it was punctured with implausible statements
and improbabilities so inconsistent with human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room
playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been enough to deter him from committing
the crime. Besides, the door of the room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the
alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of
the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical
injuries or of penetration of Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw
Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen
of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335,
par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus
raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA
7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential
ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the
penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of
touching should be understood here as inherently part of the entry of the penis into the labias of the female
organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis
merely touched the external portions of the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had
a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her
pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the
middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer
of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that
the penis indeed touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to
be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the
conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated
rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal
area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons
pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface.
The next layer is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora
must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the
female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female
organ,"17 but has also progressed into being described as "the introduction of the male organ into the labia
of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of
passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving
that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that
Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of
her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw
upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the
vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon
Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the
victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the victim
would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's
external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo
would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand
was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution
to establish how Corazon could have seen the sexual contact and to shove her account into the permissive
sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is
required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect,
thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To
hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and
persist in satisfying his lust even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of
Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the
court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in
this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a
question propounded to her who could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child,
whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly
sophistication, an adult interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused
touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed
to establish sufficiently that Primo made efforts to penetrate Crysthel. 22Corazon did not say, nay, not even
hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even
narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own
assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not
feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted
"Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt
pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony
of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death.1âwphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external
signs of physical injuries on complaining witness' body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.
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, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are present in
the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree,
which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any
of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty
of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty
of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and
ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty
(20) days ofreclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.

G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B
before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case
reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria
St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently
provided himself for the purpose and with threats and intimidation, did, then and there wilfully,
unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses
for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to
Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp.
59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of
the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same,
and considering the provisions of the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE
(12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay
costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the
Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the
crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision
and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa
Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at
Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and
his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p.
14, ibid). When they reached the second floor, he commanded her to look for a room. With the
Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered her
as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased
her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of the
boarding house, and knocked on the door. When there was no answer, she ran around the building
 and knocked on the back door. When the policemen who were inside the building opened the
door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman
to see her, took off his jacket and wrapped it around her. When they discovered what happened,
Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the
second floor and saw somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where
she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with loose clothing with no under-
clothes; appears in state of shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen intact;
no laceration fresh and old noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses;
and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and
vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor,
truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are
not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations
of truthfulness on material points. These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA
98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details
must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v.
Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies
deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and
guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because
"this is the only case where an aggressor's advances is being helped-out by the victim in order that there
will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a Batangas
knife during the aggression. This is a material part of the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on
the credibility of witnesses should be accorded the highest respect because it has the advantage of
observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R.
No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the
victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to
the sincerity of the offended party in her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a
picture of supplication hungry and thirsty for the immediate vindication of the affront to her
honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed
illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape
was committed provided her testimony is clear and free from contradiction and her sincerity and candor,
free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R.
Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985,
140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly
on how the rape was committed. The victim's testimony from the time she knocked on the door of the
municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in
view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle
against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the
boarding house and was fully satisfied that the narration of the scene of the incident and the conditions
therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of
both accused and offended party without the slightest difficulty, even in the manner as narrated.
 The partitions of every room were of strong materials, securedly nailed, and would not give way
even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R.
No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which
was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a
frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much more for a frightened barrio girl, like
the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the
exposure of her private parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is mentally deranged.
Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and managed
to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she was sexually assaulted in the manner
she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the
allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses
on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679,
June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-
legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties
that another physician testified inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its
face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that
the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is
whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that
there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the
accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's
Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those
which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and 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.
There is an attempt 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.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to
the crime of rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to the crime of
rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which
would produce the felony and (2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a
distinction between attempted and frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of
the crime by overt acts, is prevented, against his will, by some outside cause from performing all of
the acts which should produce the crime. In other words, to be an attempted crime the purpose of
the offender must be thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all of the acts which should produce the crime
as a consequence, which acts it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted from frustrated
felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which
 should produce the crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
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 v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People
v. 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 v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. 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 v. Eriña 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 orfrustrated 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 Eriña case, supra, might
have prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial
court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party
the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court
stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by
Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed
from the uncorroborated testimony of the offended party and that a medical certificate is not
necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people
relied upon cannot be applicable to the instant case. The testimony of the offended party is at
variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of
the court. It should be stressed that in cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the medical certificate, would be
productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist. On the
contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis
that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely testified that there
was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified
that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you referred (sic) to, when you said
comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's
testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona,
G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September
29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed
with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court
appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is
death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People
v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the
Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the
Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos.
78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335,
paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615;
People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is
hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. FLORENCIO ABANILLA y RIVERA
PER CURIAM:
For automatic review before us is the consolidated decision[1] rendered by the Regional Trial Court of
Batangas City,[2] in Criminal Cases Nos. 10857, 10858 and 10859, finding appellant Florencio Abanilla y
Rivera guilty beyond reasonable doubt of three counts of rape committed against his seventeen-year-old
daughter, Lorena Abanilla y Arellano, which resulted in the latters pregnancy.
On April 7, 2000, the following informations were filed against appellant:[3]
Criminal Case No. 10857
That in or about June 1999 at around 11:00 oclock in the evening at Brgy. Pulot Itaas, Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lust
and lewd designs, by means of force, threat and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge of one Lorena Abanilla y Arellano who was then a minor, 17 years of age,
against her will.
That the qualifying aggravating circumstance of relationship is attendant in the commission of the offense,
the 17-year old victim/offended party being the daughter of the accused.
Criminal Case No. 10858
That during the first half of October 1999 at Brgy. Pulot Itaas, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd designs, by
means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of one Lorena Abanilla y Arellano who was then a minor, 17 years of age, against her will.
That the qualifying aggravating circumstance of relationship is attendant in the commission of the offense,
the 17-year old victim/offended party being the daughter of the accused.
Criminal Case No. 10859
That during the last week of October 1999 at Brgy. Pulot Itaas, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd designs, by
means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of one Lorena Abanilla y Arellano who was then a minor, 17 years of age, against her will.
That the qualifying aggravating circumstance of relationship is attendant in the commission of the offense,
the 17-year old victim/offended party being the daughter of the accused.
Appellant pleaded not guilty to each of the informations charged and a joint trial was conducted. On March
12, 2001, the court a quo rendered the aforementioned consolidated decision, the dispositive portion of
which reads:
WHEREFORE, the accused, FLORENCIO ABANILLA y RIVERA, is found guilty beyond reasonable doubt of
the three (3) counts of aggravated rape under Articles 266-A and 266-B of the Revised Penal Code, and he is
hereby sentenced to suffer the supreme penalty of death for each of the charges in these cases, with costs.
He is further ordered to indemnify Lorena Abanilla with the sum of P50,000 for each of the three offenses
or a total of P150,000 as moral damages.
In convicting appellant, the trial court found the following facts to have been duly established:[4]
The accused, forty four (44) years old, has been a widower for four (4) years. He was a carpenter and came
home in the evening often drunk. In June of 1999, as well as in the second and last weeks of October 1999,
the accused came home in Pulot Itaas, Batangas City drunk. At around 10:00 oclock in the evening he laid
beside her daughter, Lorena, who was sleeping. Lorena was then 17 years old for [she was] born on October
3, 1982. He touched her private parts, removed her shorts and pant[y], undressed himself and laid on top of
her. He inserted his penis into her vagina causing her pain. He then made the up and down movement and
ejected something hot from his penis. He told Lorena not to make any noise since her siblings were sleeping
in the same room. He warned her not to tell anyone about the incident because, if she did, he would kill her.
Out of fear Lorena did not report to anyone but on April 1, 2000, Modesta Ebora, Lorenas godmother who
noticed Lorenas enlarged breasts, hips and abdomen, tried to talk to the latter who related that the accused
was the one responsible for her condition. On April 3, 2000, while the accused was having a hair cut, Lorena
reported to SPO4 Natividad who arrested the accused. Lorena was examined by a physician and an Ultra
Sound examination was done on her which confirmed her pregnancy. On July 14, 2000, Lorena gave birth to
a baby boy (see letter of Social Worker, p. 45 of record).
Appellant denied raping his daughter and counters with the following statement of facts in his brief:[5]
Accused FLORENCIO ABANILLA denied having raped his daughter during the incidents charged in the
information. On June 12, 1999, he worked as a carpenter on a house built in their barangay in Pulot Itaas,
Batangas City. His companions at their residence were his eight (8) children and a brother-in-law. In
October 1999, he got a job at Tiera Verde, necessitating him to stay thereat for two (2) weeks. He labeled
the charges made by her daughter as fabrications, and instigated by the relatives of her deceased wife due
to a land dispute. He likewise averred that her daughter receives male visitors at their house (TSN, October
2, 2000, pp. 4-10).
The evidence for the prosecution consisted of the testimonies of four witnesses, namely: Lorena Abanilla,
the complainant herself; Modesta Ronquillo, the complainants godmother; Dr. Buenaventura Magboo, the
physician who examined the complainant; and SPO4 Venecio Natividad, the policeman who arrested
appellant. Of the four witnesses, it was only the complainant who testified on the rape incident itself.
Modesta Ronquillos testimony that the complainant disclosed to her that she was raped by appellant is
hearsay and is not admissible to prove rape.[6] The other two witnesses, Buenaventura Magboo and SPO4
Venecio Natividad, respectively testified to the pregnancy of the complainant and the arrest of appellant.
On the other hand, the sole evidence presented by appellant was his own testimony denying the
complainants accusations against him.
Judging by the evidence on hand, determining whether or not the alleged rape occurred ultimately boils
down to the word of the complainant against that of appellant. In deciding which party deserves credence,
the Court applies the three guiding principles in reviewing rape cases: 1) an accusation of rape can be made
with facility - it is hard to prove, and even more difficult for the accused to disprove; 2) in view of the
intrinsic nature of the crime in which only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and 3) the evidence for the prosecution must stand
or fall on its own merits and not draw strength merely from the weakness of that of the defense.[7]
Considering that appellants conviction was chiefly due to the complainants testimony, the Court is obliged a He removed my shorts and panty, removed his under wear and placed himself on top of me and placed his
to examine thoroughly the veracity of such testimony to ensure that it meets the required quantum of proof organ into mine and made an up and down movement because he was not able to insert his organ into
beyond reasonable doubt necessary to overturn the constitutional presumption of innocence. mine, I felt something hot came out from his organ.

The complainant testified on three alleged rape incidents. The first was said to have occurred during the q According to you he placed himself on top of you and made an up and down movement on top of you how
month of June 1999, while the second and the third rape incidents purportedly occurred on the second and long was that?
last weeks of October 1999, respectively. The pertinent portions of the testimony of the complainant are as
follows:[8] a About (4) minutes, ma am.

xxx xxx xxx q During the act that he was on top of you because he was not able to insert his organ, did it touch your
private part?
[FIRST INCIDENT]
WITNESS:
q Sometime in the month of June, 1999 do you remember if there was an unusual incident that happened to
you? a It touched my private part, ma am.

WITNESS: PROS. PANGANIBAN:

a There, was, maam. q And after you have felt that something hot came out front his organ, what did you feel?

PROS. PANGANIBAN a Painful, ma am.

q What was that? q Were you then attending school at that time?

WITNESS: a Yes, maam.

a I was raped by my father, maam. q In what year were you then?

q Will you kindly tell this Honorable Court how you were raped by your father? a Third year high school, maam.

a My father arrived 10:00 oclock in the evening at our house, ma am. q Whereat?

q What did he do to you? a Talahib Pandayan National High School, maam.

a He was drunk, he asked for light, he asked me to prepare food, and then he ate. q Have you reported the first incident to any authority or to anybody else?

q According to you at 10:00 your father arrived drunk and he asked for light. What kind of light was that a I did not.
which you provide[d]?
q Why did you not report the said incident to anybody?
a [A] lamp, maam.
a Because I am afraid of my father, maam.
q And according to you he asked for food. After he [ate] his supper what happened more?
q Why were you afraid of your father?
a I slept, ma am. Afterwards I felt that he laid beside me.
a Because he is going to kill me, maam.
q After he laid down beside you, what happened more?
[SECOND INCIDENT]
a He touched my private part and told me not to create noise because he will kill me.
q After this incident was there any incident that happened to you?
q After that what happened?
a There was, ma am, second week of October, 1999.
 q In what part of the house did this happen?
q What was that incident?
a Inside the room, maam.
a He laid beside me, he touched my private part, removed my shorts and panty, he removed his underwear.
q Do you mean to say you have one room?
q Can you tell the time when this incident happened?
a Two (2) rooms, maam.
a 10:00 o clock in the evening, ma am.
q Who were with you in that room sleeping.
q Where did it happen, the second time?
a My siblings, maam.
a At our house, ma am.
q Who were they?
q What were you doing then when he laid beside you?
a Cherryl.
a I was sleeping then.
q Do you know her age?
PROS. PANGANIBAN:
a (16) years old, maam.
q You said you were sleeping, you mean to say you were awakened when he laid beside you?
WITNESS:
WITNESS:
Angeline, 4 years old, Leody 10 years old, Robert, 6 y[ea]rs old and myself, maam.
a Yes, ma am.
PROS. PANGANIBAN:
q When your father removed your shorts and panty and he touched your private part, after that what did he
do more? q At the time your father was [having] sexual intercourse [with you], do you know where your brothers and
sisters you mentioned [were]?
a He placed himself on top of me and forcibly inserted his organ and he was able to insert his organ into
mine. a They were beside me, maam.

q For how long [was] he on top of you? q What were they doing?

a Five (5) minutes, ma am. a They were sleeping, maam.

q After he inserted his organ into yours what did he do? q Did you report this second incident to anybody?

a He threatened me not to tell anyone because he will kill me. a No, maam.

q After he inserted his private part into yours what did you feel? q Why did you not report to anybody?

a Very painful, ma am. a Because I was afraid of my father. He is going to kill me, maam.

q What more did he do to you? PROS. PANGANIBAN:

a None, maam. Your Honor may I manifest into the record that while the witness is answering she is crying.

q Who were with you in your house at that time? [THIRD INCIDENT]

a My siblings and father, maam. q Aside from the second incident, is there any other instance that happened [to] you?
a There was, maam.
q What was this incident?
a Last week of October, 1999, maam.
q What happened to you during the last week of October?
a I was sleeping, my father laid beside me, and touched my private part. After that he removed my shorts
and panty and he removed his underwear.
q What happened more?
a He told me not to shout, he is going to kill me.
q What happened?
a He laid himself on top of me. He again inserted his organ into mine.
q What more did he do to you after inserting his organ into yours?
a None.
PROS. PANGANIBAN:
q After inserting his private part into yours what happened?
a He made an up and down movement and then I felt something hot come out of his organ. Then he warned
me not to tell anybody because he is going to kill me.
q Did you report this incident to anybody?
a No, maam. Because I was afraid of my father, he is going to kill me.
xxx xxx xxx
The informations against appellant alleged that the crimes were committed by means of force, threat or
intimidation. A perusal of the complainants testimony indicates that the prosecution attempted to establish
that the first and third rape charges where committed by means of threat and intimidation. The
complainant testified that on the first incident, appellant touched her private part and told her not to create
noise or he will kill her. Thereafter, appellant removed her shorts and panty and placed himself on top of
the complainant. As to the third incident, the complainant testified that before appellant laid himself on top
of her, he again told her not to shout or else he will kill her.
On the other hand, the complainants testimony does not bear out the elements of threat or intimidation on
the second rape incident. The complainant testified that appellant threatened to kill her, should she tell
anyone about what happened, only after the alleged rape was committed. Hence, appellant cannot be said to
have threatened or intimidated the complainant into having sexual relations.[9] Nevertheless, as borne out
by the same testimony, force was shown to have been employed in the consummation of the sexual act. In
the complainants testimony, she declared that appellant had forcibly inserted his organ.
The Court shall now determine whether the aforementioned circumstances employed by appellant sufficed
to vitiate the consent of the complainant.
Under the doctrine laid down in People v. Dulay,[10] the traditional concept of rape is that carnal
knowledge is gained against or without the consent of the victim. If the rape is made by force, violence or
intimidation, it is self-evident that it was made against or without the victims consent. Republic Act No.
8353, the Anti-Rape Law of 1997, states:
Article 266-D. Presumptions - Any physical overt act manifesting resistance against the act of rape in any
degree from the offended party, or where the offended party is so situated as to render her/him incapable
of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article
266-A.
The rule is that resistance may be proved by any physical overt act in any degree from the offended party.
Tenacious resistance, however, is not required. Neither is a determined and persistent physical struggle on
the part of the victim necessary.[11]
It is true that complainants testimony does not indicate that she put up any resistance against the sexual
advances of appellant. This notwithstanding, proof of resistance is not necessary in light of appellants moral
ascendancy over the complainant. Being the father, appellants force or threat was sufficient to create fear in
the mind of the complainant compelling her to submit to his sexual abuse.[12]
The complainants description of the first incident, however, cannot be deemed as rape. The complainants
testimony shows that appellant was not able to insert his organ. Appellant merely rubbed it against her
private part until ejaculation. In People v. Campuhan,[13] the Court extensively discussed what should
constitute rape:
xxx xxx xxx
.[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing
of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the mons
pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias
or slid into the female organ, and not merely stroked the external surface thereof, for an accused to he
convicted of consummated rape. As the labias, which are required to be touched by the penis, are by their
natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora
or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons
pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface.
The next layer is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora
must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the
female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Without the penetration, the crime committed is either attempted rape or acts of lasciviousness.[14]
Attempted rape, however, requires that the offender commence the commission of rape directly by overt
acts but does not perform all the acts of execution by reason of some cause or accident other than his own
spontaneous desistance.[15] In the present case, nothing prevented appellant from consummating the act
and it would seem that he was already contended with rubbing his penis against the complainant without
actually inserting it into her private part. Thus, appellant cannot be convicted of attempted rape but only of
acts of lasciviousness for the June 1999 incident.
As to the second and third incidents, the complainants candid narration is complete in all its details. There
was a categorical declaration that appellant either used force or threatened to kill her before inserting his
penis into her vagina. Evidently, all the required elements to convict for rape are present: 1) the offender
had carnal knowledge; and 2) by using force, threats or intimidation.[16] The Court finds no reason to
doubt the testimony of the complainant, whose credibility has already been passed upon by the trial court.
Settled is the rule that when credibility is in issue, the Court generally defers to the findings of the trial
court. Having heard the witnesses and observed their deportment during trial, the trial court is in a better
position to decide the question.[17] Moreover, the testimony of the complainant is entitled to great weight,
as a daughter would not accuse her father of a heinous crime had she not been really aggrieved.[18]
On the Proper Penalty
The Court now resolves the issue of whether the ultimate penalty of death should be imposed on appellant
for the second and third rape charge.
Article 266-B of the Revised Penal Code dictates that the penalty of death shall be imposed if the victim is
under eighteen years old and the offender is a parent. Appellant contends that even though his relationship
to the complainant is admitted, the minority of the latter was not sufficiently proven. While there may have
been testimony from the complainant, to the effect, that she was less than 18 years-old at the time of rape, it
was still indispensable for the prosecution to present the original birth certificate. Appellant claims that a
photocopy of the birth certificate was marked provisionally, as an exhibit, but the original was never
submitted.
People v. Pruna,[19] held that the best evidence to prove the age of the victim is the original or certified true
copy of the birth certificate. In the absence of the birth certificate, similar authentic documents such as
baptismal certificates and school records which show the victims age may be offered. Should these be
unavailable, the testimony, if clear and credible, of the victims mother or member of the family either by
affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules of Court shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7
years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than
12 years old; and
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than
18 years old;
The Court has meticulously examined the records of the case and finds that the original birth certificate was
indeed presented by the prosecution.[20] In fact, during the prosecutions formal offer of exhibits, appellant
manifested no objection to it being entered into the records as part of the testimony of the complainant.[21]
Clearly, the prosecution was able properly to establish the minority of the complaint in the manner
prescribed by current jurisprudence. The Court therefore sustains the trial courts imposition of the death
penalty.
WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Iloilo City, Branch
38, in Criminal Case No. 10857, is MODIFIED, and appellant is ACQUITTED of the charge of rape, but is
CONVICTED of the crime of acts of lasciviousness, as defined and penalized under Article 336 of the Revised
Penal Code, and sentenced to suffer the indeterminate penalty of 6 months of arresto mayor, as minimum,
to 6 years of prision correccional, as maximum. Appellant is ordered to pay the complainant the amount of
P20,000 as moral damages plus costs of suit.[22] The decision in Criminal Cases Nos. 10858 and 10859 are
AFFIRMED, with the MODIFICATION that the award of moral damages is increased to P75,000 and
additional awards are granted in the amounts of P75,000 as civil indemnity and p25,000 as exemplary
damages, the same being for each of the rapes, all in accordance with recent jurisprudence.[23]
Three of the Members of the Court maintain the unconstitutionality of Republic Act No. 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 herein.
In accordance with section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the
records of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for
possible exercise of the pardoning power. No costs.
SO ORDERED.
G.R. No. 79811 March 19, 1990
PEOPLE OF THE PHILIPPINES vs PIO CANTUBA & PEDRITO LALAGUNA
PARAS, J.:
The accused-appellants Pio Cantuba and Pedrito Lalaguna together with co-accused Gualberto Versales
(aliasBerting), 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.
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:
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.
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 "encargo" 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 a 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).
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.
3-4), 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 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
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).
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).
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.
Technical Stg. 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).
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 Anent the second assignment of error, it is the contention of the accused-appellant Pedrito Lalaguna that
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.
II
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-consipirator 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.
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 fire
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 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.
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.
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.
Accussed-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)
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.
WHEREFORE, the decision of the trial court is hereby AFFIRMED, with costs against the appellants.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELCHOR RAFAEL y LEGASPI, MARIO RAFAEL y
LEGASPI, and MAXIMO RAFAEL y MACASIEB, accused,
QUISUMBING, J.:
On automatic review is the consolidated decision[1] of the Regional Trial Court of Quezon City, Branch 217,
in Criminal Cases No. Q-94-59454, and No. Q-94-59453. In the first case, it convicted appellant of the crime
of murder, sentencing him to suffer the penalty of death, and ordering him to pay the heirs of the victim the
amount of P50,000.00 as indemnity, P94,000.00 as funeral expenses, and to pay the costs. In the second, it
convicted appellant of the crime of frustrated murder, sentencing him to suffer an indeterminate penalty of
six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum, and
ordering him to indemnify the victim the amount of P36,500.00, and to pay the costs.
Appellant and his two sons, Melchor and Mario, were accused of the crime of murder for stabbing to death
Gloria Tuatis-Rafael, niece-in-law of appellant, and of the crime of frustrated murder of Alejandra Macaraeg-
Rafael, sister-in-law of appellant.
The facts, based on the records, are as follows:
On August 28, 1994, at around 8:00 P.M., at Rosal Street, Pingkian III, Pasong Tamo, Quezon City, Alejandra
and her daughter-in-law Gloria, were preparing dinner in the kitchen when they heard a commotion
outside the house. Without warning, appellant and his two sons, Melchor and Mario, barged inside the
kitchen. Appellant was unarmed while Melchor and Mario were armed with bolos. Suddenly, Melchor
hacked Alejandras left hand, severing it from her body. Alejandra slumped in a corner and pleaded with
Melchor not to kill her. Appellant stood in front of the kitchen door watching the grisly incident unfold.
After hacking Alejandra, Melchor turned to Gloria and hacked her on the head. Gloria managed to run
outside the house but Mario chased her. At this point, Alejandra could no longer see what was happening to
Gloria because of the continuous bleeding of her hand. Melchor turned to Alejandra anew and continued to
stab her on the different parts of the body. Alejandra feigned death by lying still. Believing that Alejandra
was dead, Melchor left her and went outside. Alejandra heard appellant telling his two sons in the
Pangasinan dialect, Patayin, patayin iran amen! (Kill them all!).[2]
The commotion woke Rogelio Rafael, who was sleeping upstairs.[3] When Rogelio peeped through the
jalousie window, he saw Melchor and Mario chasing his wife Gloria. The scene was illuminated by a light
coming from the nearby piggery. When Gloria stumbled, Melchor and Mario repeatedly hacked her. Rogelio
shouted at them to have mercy on his wife. He frantically rushed downstairs to help her. When he got
outside, however, the assailants had already fled. He tried to run after them but failed. When Rogelio went
back to check on his wife and mother, he found his wife, Gloria, dead, and his mother, Alejandra, with her
left hand severed. He requested his brother-in-law, Paking Aragon, to rush Alejandra to the hospital.[4]
Paking brought Alejandra to the East Avenue Medical Center where she was diagnosed to have traumatic
amputation, L. wrist. Hacking wound base of 2nd finger and base of mid phalanx 3rd finger, R.[5]
Thereafter, Rogelio reported the stabbing incident to the Batasan Police Detachment.[6]
On October 25, 1994, appellant and his two sons were charged under the following Informations:[7]
Criminal Case No. Q-94-59454 (MURDER)
That on or about the 28th day of August 1994, in Quezon City, Philippines, the said accused, conspiring and
confederating together and mutually helping one another, with evident premeditation, treachery and
superior strength, by then and there hacking her with the use of a bolo and hitting her on the different parts
of her body, thereby inflicting upon her serious and mortal wounds which was the direct and immediate
cause of her death, to the damage and prejudice of the herein (sic) of said GLORIA TUATIS-RAFAEL.
Criminal Case No. Q-94-59453 (FRUSTRATED MURDER)
That on or about the 28th day of August, 1994, in Quezon City, Philippines, the said accused, conspiring and
confederating together and mutually helping one another, with evident premeditation, treachery and
superior strength, did then and there, wilfully, unlawfully, and feloniously with intent to kill, attack, assault
and employ personal violence upon the person of ALEJANDRA MACARAEG-RAFAEL, by then and there
hacking her with a bolo and hitting her on the different parts of her body, thereby inflicting upon her
serious and mortal wounds which ordinarily would cause the death of said ALEJANDRA MACARAEG-
RAFAEL, thus performing all the acts of execution which should have produced the crime of MURDER, as a
consequence but nevertheless did not produce it by reason of causes independent of their will, that is the
timely and able medical attendance rendered to said ALEJANDRA MACARAEG-RAFAEL which prevented
her death, to her damage and prejudice.
Only appellant was arrested. His two sons remain at large. Upon arraignment, appellant entered a plea of
not guilty.[8] Joint trial on the merits ensued.
The prosecution presented the following witnesses: (1) Alejandra Macaraeg-Rafael, the victim whose left
hand was severed; (2) Leonardo Rafael, her husband, and brother of appellant, who testified that a possible
motive for the killing was a dispute over an aborted sale of a parcel of land, whose sale Alejandra blocked,
which angered appellant; (3) Elvira Hamoy, sister of Gloria, who witnessed the killing of Gloria from her
house; (4) Rogelio Rafael, husband of Gloria; (5) Dr. Florante F. Baltazar, Chief of the Philippine National
Police Central Crime Laboratory Service, who conducted the autopsy on the body of Gloria and who testified
that Gloria suffered 18 wounds and the cause of death was the hacking and stab wounds on her head, body,
and extremities.[9]
The defense presented the following witnesses: (1) Benedicto Dizon, a factory worker and friend of
appellant, (2) appellant, (3) Leo Rafael, appellants 15 year-old son, and (4) Lisa Rafael, appellants daughter.
Appellant interposed the defense of alibi and denial. He claimed that on August 28, 1994, at around 7:30
P.M., he and his son Leo were on their way home from the FEU FERN where appellant works as a caretaker.
When they passed by Dizons house in Sapphire St., Fern Village, Quezon City, they saw Dizon, one Mang
Samuel and Jaime Mayapis engaged in a conversation about fighting cocks. Appellant and his son joined the
conversation for about 30 minutes. Thereafter, they headed towards their house which was located some
400 meters away. That same night, while appellant and Leo were resting, several policemen came to their
house looking for Melchor and Mario. Appellant and Leo were ordered to step out of the house and lie on
the ground while the policemen searched their house for Melchor and Mario. When these two could not be
found, appellant and Leo were brought to Precinct No. 6 where they saw Rogelio, Glorias husband. They
were later brought to Precinct No. 3 which had jurisdiction over the crime. Thereafter, they proceeded to
the house of Rogelio where they found a severed hand. Afterwards, they went home and the policemen got
the pictures and identification cards of Melchor and Mario.[10]
On October 30, 1995, the trial court rendered a decision[11] finding appellant guilty as charged. The
dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing and in consideration of the aggravating circumstance of dwelling,
MAXIMO RAFAEL is hereby sentenced:
In Criminal Case No. Q-94-59453 - to suffer the indeterminate penalty of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as maximum and to indemnify Alejandra
Rafael y Macaraeg the amount of thirty six thousand five hundred pesos (P36,500.00) and to pay the costs.
In Criminal Case No. Q-94-59454 - to suffer the penalty of death and to pay the heirs of Gloria Rafael the
amount of P50,000.00 as death indemnity (People v. Molas, G.R. No. 93437-39, February 5, 1993, 218 SCRA
473) and ninety-four thousand pesos (P94,000.00), representing the funeral expenses and to pay the costs.
SO ORDERED.
Hence, the present automatic review. Appellant prays for acquittal or, in the alternative, for a lower penalty
by being held liable merely as an accomplice. He claims that the trial court committed the following
errors:[12]
I. THE COURT A QUO ERRED IN FINDING THE EXISTENCE OF CONSPIRACY RELATIVE TO THE INCIDENT
IN QUESTION.
II. THE COURT A QUO ERRED IN GIVING FULL FAITH AND UNDUE CREDENCE TO THE INCREDIBLE,
UNPERSUASIVE, INCONSISTENT IF NOT CONTRADICTORY TESTIMONY OF THE PROSECUTION
WITNESSES AND IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.
III. THE COURT A QUO MANIFESTLY ERRED IN RENDERING A VERDICT OF CONVICTION IN CRIM. CASE
NOS. Q-59453 AND Q-94-59454 DESPITE THE FACT THAT ACCUSED-APPELLANTS GUILT WAS NOT
PROVED BEYOND REASONABLE DOUBT.
In brief, we are asked to consider the following issues: (1) whether the witnesses for the defense were
credible; (2) whether conspiracy was sufficiently proved; and (3) whether the guilt of appellant was proved
beyond reasonable doubt either as a principal or merely as an accomplice.
On the first issue, regarding credibility of witnesses, appellate courts generally do not disturb the findings
of the trial court, considering that the latter is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying during the trial. The rule
admits of certain exceptions, such as: (1) when patent inconsistencies in the statements of witnesses are
ignored by the trial court, or (2) when the conclusions arrived at are clearly unsupported by the
evidence.[13] The Court is likewise not precluded from making its own assessment of the probative value of
the testimony of the witnesses on the basis of the transcript of stenographic notes (TSNs) thereof.[14]
After conducting a thorough review of the records, however, we see no cogent reason to fault the factual
findings of the trial court. The testimonies of the prosecution witnesses, when pieced together, jibe in
material points to give the whole picture of the stabbing incident. Alejandra testified as to the
circumstances surrounding the inception of the attack, while prosecution witnesses Elvira and Rogelio
testified as to subsequent events which occurred outside the house. Further, the alleged inconsistencies
pointed out by appellant pertain to minor details which do not detract from the credibility of the
prosecution witnesses. The test is whether their testimonies agree on the essential facts and substantially
corroborate a consistent and coherent whole.[15] When queried, appellant himself could not think of any
reason why the prosecution witnesses would falsely implicate him in the commission of the crimes.[16]
Absent any evidence showing any reason or motive for prosecution witnesses to perjure themselves, the
logical conclusion is that no such improper motive exists, and their testimonies are thus worthy of full faith
and credit.[17]
Moreover, it appears that appellants own version of the incident lacks persuasiveness. He denies
participating in the gory incident, claiming that he was not at the crime scene but on his way home from the
FEU FERN and that he passed by Dizons house in Sapphire St., Fern Village, Quezon City. However, two
prosecution witnesses, namely Alejandra and Elvira, saw appellant at the locus criminis, Gloria Rafaels
residence in Pingkian III, Pasong Tamo, Quezon City. Being his relatives, they could not have possibly been
mistaken as to his identity. Thus, in the face of his positive identification as one with the assailants, his
defense of denial and alibi must fail.[18]
Regarding the second issue, appellant insists that conspiracy was not established by clear and convincing
evidence. The prosecution, appellant claims, failed to prove that he and his two sons had a prior plan to kill
the victims. Even granting that appellant shouted Patayin, patayin iran amen, he could not be held liable as a
principal because when he uttered those words, the other accused had already fatally wounded the victims.
Further, appellant points out the following inconsistencies in the testimonies of prosecution witnesses -
First, Alejandra testified that after Gloria ran from the kitchen, she did not see what happened next.
However, she later testified that she saw accused Melchor and Mario hacking Gloria. Second, it was unclear
from Alejandras testimony whether the kitchen door was open or closed at the start of the attack. Third,
Elvira, a neighbor testified that she was attending to her children when the incident occurred, but later
testified that she and her husband (actually, he was the husband of Gloria, not Elvira) were already sleeping
in their bedroom with their children. Fourth, Elvira testified that during the attack, appellant was shouting
in front of the kitchen but later testified that he was merely watching the incident. Fifth, while Elvira
testified that Gloria suffered injuries on her breast and right side of the face, Alejandra testified that Gloria
was merely stabbed in the head once. Sixth, Alejandra wavered in her testimony as to whether appellant
was carrying a bolo at the time of the incident. Appellant also argues that because prosecution witness
Elvira testified that when she saw the gruesome incident, she lost her presence of mind, she could not have
been in a proper state of mind to recall the details of the incident. Further, he points out that while
Alejandra testified that appellant was present at the crime scene, prosecution witness Rogelio testified
seeing only accused Mario and Melchor at the locus criminis.
The Office of the Solicitor General counters that conspiracy was duly proven by the prosecution. The
culprits arrived together at the crime scene, and acted in concert in their criminal design. Appellant
oversaw the carnage and directed his sons to kill the victims, shouting Patayin, patayin iran amen.
Thereafter, appellant and his sons fled together. Thus, the surrounding circumstances indicate a community
of criminal intent, which is the essence of conspiracy.
Appellant was convicted of the crime of murder and frustrated murder because of the alleged conspiracy
among the three accused. Conspiracy exists when two or more persons come to an agreement concerning
the commission of a crime and decide to commit it.[19] Conspiracy, like the crime itself, must be proven
beyond reasonable doubt.[20] Mere presence, knowledge, acquiescence to or agreement to cooperate, is not
enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the
crime, with a view to the furtherance of the common design and purpose.[21]
On record, appellants participation in the commission of the crimes consisted of his presence at the locus
criminis, and his shouting Patayin, patayin iran amen! (Kill them all!) during the later stage of the fatal
incident. The prosecution witnesses did not see him bearing any weapon or using one to inflict any injury
on the victims. He did not run away with the two other accused still at large. Thus, we are far from
convinced that conspiracy existed between appellant and any of his sons. Conspiracy cannot be logically
inferred from the overt acts of herein appellant. We have previously ruled that relationship or association
alone is not a badge of conspiracy.[22] When there is doubt as to whether a guilty participant in the killing
has committed the role of a principal or that of an accomplice, the court should favor the milder form of
responsibility.[23]
Article 18 of the Revised Penal Code penalizes as accomplices those who, not being included in Article 17
(which enumerates those liable as principals), cooperate in the execution of the offense by previous or
simultaneous acts. Appellant herein had no direct part in the execution of the killing and maiming of the
victims. Nothing on record shows that he had induced his two sons to go on a stabbing frenzy. The
prosecution witnesses themselves testified that appellant shouted Patayin, patayin iran amen! after
Melchor had already hacked Alejandras hand and after Mario gave chase to Gloria outside the house.[24]
Evidently, appellants utterances could not have been the determining cause of the commission of the
crimes.[25] If at all, it merely had further inflammatory effect on the accused. As such, appellant cannot be
considered a principal by inducement. Neither can appellant be held liable as a principal by indispensable
cooperation. By his proven acts, appellant could be held liable only as an accomplice.
In order that a person may be considered an accomplice, the following requisites must concur: (1)
community of design; that is, knowing the criminal design of the principal by direct participation, he
concurs with the latter in his purpose; (2) that he cooperates in the execution of the offense by previous or
simultaneous acts, with the intention of supplying material and moral aid in the execution of the crime in an
efficacious way; and (3) that there be a relation between the acts and those attributed to the person
charged as an accomplice.[26] In this case, appellants acts of going to Glorias house with his sons and his
encouraging shouts clearly demonstrated his concurrence in their aggressive design and lent support to
their nefarious intent and afforded moral and material support to their attack against the victims. Hence, we
are convinced he must be held liable as accomplice in the commission of the crimes.
May the liability of an accomplice be determined in the absence of trial of the supposed principals? In Vino
v. People of the Philippines and Court of Appeals,[27] we held that [t]he corresponding responsibilities of
the principal, accomplice, and accessory are distinct from each other. As long as the commission of the
offense can be duly established in evidence the determination of the liability of the accomplice or accessory
can proceed independently of that of the principal. Hence, we find no legal impediment in the determination
of appellants liabilities for the crimes committed.
The qualifying circumstance of treachery clearly attended the killing of Gloria and the maiming of Alejandra,
as the two conditions for the existence of treachery are present, i.e., (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.[28] Appellants sons went to Glorias house armed with
bolos, which ensured the execution of their nefarious deed evidently without risk to themselves and
without affording their victims any real chance to defend themselves.[29] The killing of Gloria having been
attended by treachery, it is without doubt murder.
As to Alejandra, the crime committed was frustrated murder because Melchor performed all the acts of
execution which would produce the felony as a consequence but which, nevertheless, did not produce it by
reason of causes independent of his will.[30] The numerous wounds inflicted on Alejandra displayed the
clear intent to kill. She was hacked on the right wrist, the palm, lower wrist, fingers, and her head.[31]
These wounds would have caused her death had there been no timely medical intervention.[32] Melchor
desisted from further assault when the gravely wounded Alejandra feigned death. He then turned to Gloria
believing that he had already killed Alejandra.[33] Thus, the crime committed against Alejandra was
frustrated murder.
(2) In Criminal Case No. Q-94-59453, appellant is found guilty as an ACCOMPLICE in the crime of
FRUSTRATED MURDER of Alejandra Macaraeg-Rafael, and sentenced two (2) years, eleven (11) months
and eleven (11) days of prision correccional medium as minimum to eight (8) years, eight (8) months and
one (1) day of prision mayor medium as maximum, and ordered to pay the victim Alejandra Macaraeg-
Rafael the amount of P36,500.00 as actual damages, and P20,000.00 as exemplary damages.
Costs de oficio.
SO ORDERED.

While both Melchor and Mario were armed with bolos, the two victims, who were women, were not armed.
Hence, abuse of superior strength, which was alleged in the information, attended the commission of the
crime. But treachery absorbs the aggravating circumstance of abuse of superior strength so the same need
not be appreciated separately.[34] However, the elements of evident premeditation in the commission of
the offenses charged and the pertinence of dwelling in regard to appellants participation were not
sufficiently proven.

Appellant should therefore be found guilty as an accomplice in the crimes of frustrated murder and murder.

The penalty for murder under Article 248 of the Revised Penal Code, as amended by the death penalty law,
is reclusion perpetua to death. The penalty for an accomplice in murder is one degree lower than that
prescribed by law for the consummated felony.[35] One degree lower would be reclusion temporal.[36]36
36 There being no mitigating or aggravating circumstances, the penalty should be imposed in its medium
period. Applying the Indeterminate Sentence Law, the maximum of the penalty should be taken from
reclusion temporal medium, and the minimum of the penalty should be within the range of prision mayor.

The penalty for an accomplice in frustrated murder is the penalty next lower in degree than that prescribed
by law for the frustrated felony.[37] In effect, the penalty for an accomplice in the crime of frustrated
murder is two degrees lower than reclusion perpetua to death, which after applying the rules on graduating
penalties, would be prision mayor.[38] Considering that no mitigating or aggravating circumstances
attended the commission of the crime, the penalty should be imposed in its medium period.[39] Applying
the Indeterminate Sentence Law, the maximum of the penalty should be taken from prision mayor medium
and the minimum thereof taken within the range of prision correccional.

The actual damages awarded by the trial court were duly supported by receipts,[40] and should be allowed.
Moral damages should likewise be awarded pursuant to Article 2219 (1) of the New Civil Code which
provides that moral damages may be recovered in a criminal offense resulting in physical injuries,[41]
understood in the generic sense. Rogelio categorically stated during his testimony that he suffered mental
anguish over the death of his wife.[42]

WHEREFORE, the decision of the trial court is hereby MODIFIED as follows:

(1) In Criminal Case No. Q-94-59454, appellant is found guilty as an ACCOMPLICE in the crime of MURDER
for the death of Gloria Tuatis-Rafael, and sentenced to suffer the penalty of eight (8) years, eight months
and one (1) day of prision mayor medium as minimum to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal medium as maximum, and to pay the heirs of the victim P50,000.00 as civil
indemnity, P94,000.00 as actual damages and P50,000.00 as moral damages;