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JOHN ERIC LONEY, STEVEN PAUL REID and

PEDRO B. HERNANDEZ v PEOPLE OF THE PHILIPPINES


G.R. No. 152644 February 10, 2006

The Case

This is a petition for review[1] of the Decision[2] dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court of
Appeals. The 5 November 2001Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit
to quash Informations filed against petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez (petitioners). The 14
March 2002 Resolution denied petitioners motion for reconsideration.

The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and Chief Executive Officer, Senior
Manager, and Resident Manager for Mining Operations, respectively, of Marcopper Mining Corporation (Marcopper), a
corporation engaged in mining in the province of Marinduque.

Marcopper had been storing tailings[3] from its operations in a pit in Mt. Tapian, Marinduque. At the base of the pit ran a drainage
tunnel leading to the Boac and Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnels end. On 24
March 1994, tailings gushed out of or near the tunnels end. In a few days, the Mt. Tapian pit had discharged millions of tons of

tailings into the Boac and Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the Municipal Trial Court of Boac, Marinduque
(MTC) with violation of Article 91(B),[4] sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the
Philippines (PD 1067),[5] Section 8[6] of Presidential Decree No. 984 or the National Pollution Control Decree of 1976 (PD
984),[7] Section 108[8] of Republic Act No. 7942 or the Philippine Mining Act of 1995 (RA 7942),[9] and Article 365[10] of the
Revised Penal Code (RPC) for Reckless Imprudence Resulting in Damage to Property.[11]

Petitioners moved to quash the Informations on the following grounds: (1) the Informations were duplicitous as the Department of

Justice charged more than one offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were not yet officers

of Marcopper when the incident subject of the Informations took place; and (3) the Informations contain allegations which

constitute legal excuse or justification.

The Ruling of the MTC

In its Joint Order of 16 January 1997 (Joint Order), the MTC[12] initially deferred ruling on petitioners motion for lack of

indubitable ground for the quashing of the [I]nformations x x x. The MTC scheduled petitioners arraignment in February 1997.
However, on petitioners motion, the MTC issued a Consolidated Order on 28 April 1997 (Consolidated Order), granting partial
reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD 984. The MTC maintained the
Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to mine tailings which were precipitately
discharged into the Makulapnit and Boac Rivers due to breach caused on the Tapian drainage/tunnel due to
negligence or failure to institute adequate measures to prevent pollution and siltation of the Makulapnit and
Boac River systems, the very term and condition required to be undertaken under the Environmental
Compliance Certificate issued on April 1, 1990.

The allegations in the informations point to same set [sic] of evidence required to prove the single fact of
pollution constituting violation of the Water Code and the Pollution Law which are the same set of evidence
conditions of ECC, issued pursuant to the Philippine Mining Act. In both instances, the terms and conditions of
the Environmental Compliance Certificate were allegedly violated. In other words, the same set of evidence is
required in proving violations of the three (3) special laws.

After carefully analyzing and weighing the contending arguments of the parties and after taking into
consideration the applicable laws and jurisprudence, the Court is convinced that as far as the three (3) aforesaid
laws are concerned, only the Information for [v]iolation of Philippine Mining Act should be maintained. In other
words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and the Water Code (PD 1067) should
be dismissed/quashed because the elements constituting the aforesaid violations are absorbed by the same
elements which constitute violation of the Philippine Mining Act (RA 7942).

Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the Water Code; and Criminal
Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or
QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are
hereby retained to be tried on the merits.

The Information for [v]iolation of Article 365 of the Revised Penal Code should also be maintained and heard
in a full blown trial because the common accusation therein is reckless imprudence resulting to [sic] damage to
property. It is the damage to property which the law punishes not the negligent act of polluting the water
system. The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the prosecution for reckless
imprudence resulting to [sic] damage to property.[13]

The MTC re-scheduled petitioners arraignment on the remaining charges on 28 and 29 May 1997. In the hearing of 28 May 1997,

petitioners manifested that they were willing to be arraigned on the charge for violation of Article 365 of the RPC but not on the

charge for violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it maintained the Informations for

that offense. After making of record petitioners manifestation, the MTC proceeded with the arraignment and ordered the entry of

not guilty pleas on the charges for violation of RA 7942 and Article 365 of the RPC.

Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac, Marinduque, assailing that portion of

the Consolidated Order maintaining the Informations for violation of RA 7942. Petitioners petition was raffled to Branch 94. For

its part, public respondent filed an ordinary appeal with the same court assailing that portion of the Consolidated Order quashing

the Informations for violation of PD 1067 and PD 984. Public respondents appeal was raffled to Branch 38. On public respondents

motion, Branch 38 ordered public respondents appeal consolidated with petitioners petition in Branch 94.

The Ruling of Branch 94


In its Resolution[14] of 20 March 1998, Branch 94 granted public respondents appeal but denied petitioners petition. Branch 94 set
aside the Consolidated Order in so far as it quashed the Informations for violation of PD 1067 and PD 984 and ordered those

charges reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held:

After a careful perusal of the laws concerned, this court is of the opinion that there can be no absorption by one
offense of the three other offenses, as [the] acts penalized by these laws are separate and distinct from each
other. The elements of proving each violation are not the same with each other. Concededly, the single act of
dumping mine tailings which resulted in the pollution of the Makulapnit and Boac rivers was the basis for the
information[s] filed against the accused each charging a distinct offense. But it is also a well-established rule in
this jurisdiction that

A single act may offend against two or more entirely distinct and unrelated provisions of law,
and if one provision requires proof of an additional fact or element which the other does not,
an acquittal or conviction or a dismissal of the information under one does not bar prosecution
under the other. x x x.

xxxx
[T]he different laws involve cannot absorb one another as the elements of each crime are different from one
another. Each of these laws require [sic] proof of an additional fact or element which the other does not
although they stemmed from a single act.[15]

Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted with grave abuse of discretion
because (1) the Informations for violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC proceed from and are
based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings and (2) the duplicitous
nature of the Informations contravenes the ruling in People v. Relova.[16] Petitioners further contended that since the acts

complained of in the charges for violation of PD 1067, PD 984, and RA 7942 are the very same acts complained of in the charge
for violation of Article 365 of the RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for violation of
Article 365 of the RPC.[17]

The Ruling of the Court of Appeals

In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s ruling. The appellate court held:

The records of the case disclose that petitioners filed a motion to quash the aforementioned Informations for
being duplicitous in nature. Section 3 of Rule 117 of the Revised Rules of Court specifically provides the
grounds upon which an information may be quashed. x x x

xxxx

[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].

xxxx
We now go to petitioners claim that the resolution of the public respondent contravened the doctrine
laid down in People vs. Relova for being violative of their right against multiple prosecutions.

In the said case, the Supreme Court found the Peoples argument with respect to the variances in the mens rea of
the two offenses being charged to be correct. The Court, however, decided the case in the context of the second
sentence of Article IV (22) of the 1973 Constitution (now under Section 21 of Article III of the 1987
Constitution), rather than the first sentence of the same section. x x x

xxxx

[T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since the Informations
filed against the petitioners are for violation of four separate and distinct laws which are national in character.

xxxx

This Court firmly agrees in the public respondents understanding that the laws by which the petitioners
have been [charged] could not possibly absorb one another as the elements of each crime are different. Each of
these laws require [sic] proof of an additional fact or element which the other does not, although they stemmed
from a single act. x x x

xxxx

[T]his Court finds that there is not even the slightest indicia of evidence that would give rise to any suspicion
that public respondent acted with grave abuse of discretion amounting to excess or lack of jurisdiction in
reversing the Municipal Trial Courts quashal of the Informations against the petitioners for violation of P.D.
1067 and P.D. 984.This Court equally finds no error in the trial courts denial of the petitioners motion to quash
R.A. 7942 and Article 365 of the Revised Penal Code.[18]

Petitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING THE


CHARGES FOR VIOLATION OF THE PHILIPPINE MINING ACT(R.A. 7942) AND REINSTATING THE
CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW
(P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D. 1067), THE
POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE MINING ACT (R.A. 7942)
AND ARTICLE 365 OF THE REVISED PENAL CODE PROCEED FROM AND ARE
BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC
AND MAKULAPNIT RIVERS THRU DUMPING OF MINE TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND MULTIPLE
CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN PEOPLE VS.
RELOVA, 148 SCRA 292 [1986] THAT AN ACCUSED SHOULD NOT BE HARASSED
BY MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH DIFFERENT
FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED BY A COMMON
SET OR OVERLAPPING SETS OF TECHNICAL ELEMENTS.
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE ELEMENT
OF LACK OF NECESSARY OR ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT FALL WITHIN
THE AMBIT OF ANY OF THE ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE,
POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST
PETITIONERS[.][19]

The Issues

The petition raises these issues:

(1) Whether all the charges filed against petitioners except one should be quashed for duplicity of charges and only the
charge for Reckless Imprudence Resulting in Damage to Property should stand; and
(2) Whether Branch 94s ruling, as affirmed by the Court of Appeals, contravenes People v. Relova.

The Ruling of the Court

The petition has no merit.

No Duplicity of Charges in the Present Case

Duplicity of charges simply means a single complaint or information charges more than one offense, as Section 13 of Rule

110[20] of the 1985 Rules of Criminal Procedure clearly states:


Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in
which existing laws prescribe a single punishment for various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense.[21]

Under Section 3(e), Rule 117[22] of the 1985 Rules of Criminal Procedure, duplicity of offenses in a single information is

a ground to quash the Information. The Rules prohibit the filing of such Information to avoid confusing the accused in preparing

his defense.[23] Here, however, the prosecution charged each petitioner with four offenses, with each Information charging only

one offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the Informations. On this score alone,

the petition deserves outright denial.


The Filing of Several Charges is Proper

Petitioners contend that they should be charged with one offense only Reckless Imprudence Resulting in Damage to Property

because (1) all the charges filed against them proceed from and are based on a single act or incident of polluting the Boac and

Makalupnit rivers thru dumping of mine tailings and (2) the charge for violation of Article 365 of the RPC absorbs the other

charges since the element of lack of necessary or adequate protection, negligence, recklessness and imprudence is common among

them.

The contention has no merit.

As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more

entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense.[24] The

only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for the same

offense.[25] In People v. Doriquez,[26] we held that two (or more) offenses arising from the same act are not the same

x x x if one provision [of law] requires proof of an additional fact or element which the other does not, x x x.
Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to
one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each
crime involves some important act which is not an essential element of the other.[27] (Emphasis supplied)

Here, double jeopardy is not at issue because not all of its elements are present.[28] However, for the limited purpose of

controverting petitioners claim that they should be charged with one offense only, we quote with approval Branch 94s

comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which

petitioners were charged, there is one essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of mine tailings
into the Makulapnit River and the entire Boac River System without prior permit from the authorities
concerned. The gravamen of the offense here is the absence of the proper permit to dump said mine
tailings. This element is not indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA]
7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be validly prosecuted for
violating the Water Code even in the absence of actual pollution, or even [if] it has complied with the terms of
its Environmental Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent
damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual
pollution. The gravamen is the pollution itself. In the absence of any pollution, the accused must be exonerated
under this law although there was unauthorized dumping of mine tailings or lack of precaution on its part to
prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful violation and
gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance
Certificate, particularly that the Marcopper should ensure the containment of run-off and silt materials from
reaching the Mogpog and Boac Rivers. If there was no violation or neglect, and that the accused
satisfactorily proved [sic] that Marcopper had done everything to ensure containment of the run-off and silt
materials, they will not be liable. It does not follow, however, that they cannot be prosecuted under the Water
Code, Anti-Pollution Law and the Revised Penal Code because violation of the Environmental Compliance
Certificate is not an essential element of these laws.

On the other hand, the additional element that must be established in Art. 365 of the Revised Penal Code is the
lack of necessary or adequate precaution, negligence, recklessness and imprudence on the part of the accused to
prevent damage to property. This element is not required under the previous laws. Unquestionably, it is different
from dumping of mine tailings without permit, or causing pollution to the Boac river system, much more from
violation or neglect to abide by the terms of the Environmental Compliance Certificate. Moreover, the offenses
punished by special law are mal[a] prohibita in contrast with those punished by the Revised Penal Code which
Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled

doctrine.

On petitioners claim that the charge for violation of Article 365 of the RPC absorbs the charges for violation of PD 1067, PD 984,

and RA 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot

absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is

criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.

People v. Relova not in Point

Petitioners reiterate their contention in the Court of Appeals that their prosecution contravenes this Courts ruling in People v.

Relova. In particular, petitioners cite the Courts statement in Relova that the law seeks to prevent harassment of the accused by
multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or
overlapping sets of technical elements.

This contention is also without merit.

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel Opulencia (Opulencia)

with theft of electric power under the RPC, after the latter had been acquitted of violating a City Ordinance penalizing the

unauthorized installation of electrical wiring, violated Opulencias right against double jeopardy. We held that it did, not because

the offenses punished by those two laws were the same but because the act giving rise to the charges was punished by an

ordinance and a national statute, thus falling within the proscription against multiple prosecutions for the same act under the

second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article III of the 1987 Constitution. We held:

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not the same as
theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the
first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the
first information.

The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the
express terms of the constitutional provision involved which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act. x x x

and from our case law on this point. The basic difficulty with the petitioners position is that it must be
examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but
rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general
rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an
offense that is different from the offense charged in the first or prior prosecution, although both the first and
second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22)
embodies an exception to the general proposition: the constitutional protection, against double
jeopardy is available although the prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses
spring from the same act or set of acts. x x x[30](Italicization in the original; boldfacing supplied)
Thus, Relova is no authority for petitioners claim against multiple prosecutions based on a single act not only because the question
of double jeopardy is not at issue here, but also because, as the Court of Appeals held, petitioners are being prosecuted for an act

or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall
under the first sentence of Section 21, Article III which prohibits multiple prosecution for the same offense, and not, as in Relova,
for offenses arising from the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the Resolution dated 14 March

2002 of the Court of Appeals.

SO ORDERED.

SALVADOR v MAPA G.R. No. 135080

The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the Committee), through Atty. Orlando L. Salvador (Atty.
Salvador), filed this Petition for Review on Certiorari seeking to nullify the October 9, 1997 Resolution[1] of the Office of the
Ombudsman in OMB-0-96-2428, dismissing the criminal complaint against respondents on ground of prescription, and the July
27, 1998 Order[2] denying petitioners motion for reconsideration.
On October 8, 1992 then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc
Fact-Finding Committee on Behest Loans, which reads:

WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that Subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions
involving public interest;

WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that The right of the state to recover
properties unlawfully acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches or estoppel;

WHEREAS, there have been allegations of loans, guarantees, and other forms of financial
accommodations granted, directly or indirectly, by government-owned and controlled bank or financial
institutions, at the behest, command, or urging by previous government officials to the disadvantage and
detriment of the Philippines government and the Filipino people;

ACCORDINGLY, an Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS is hereby


created to be composed of the following:

Chairman of the Presidential


Commission on Good Government - Chairman

The Solicitor General - Vice-Chairman

Representative from the


Office of the Executive Secretary - Member

Representative from the


Department of Finance - Member

Representative from the


Department of Justice - Member

Representative from the


Development Bank of the Philippines - Member
Philippine National Bank - Member

Representative from the


Asset Privatization Trust - Member

Government Corporate Counsel - Member

Representative from the


Philippine Export and Foreign
Loan Guarantee Corporation - Member

The Ad Hoc Committee shall perform the following functions:

1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and
stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who
influenced the grant thereof;

2. Identify the borrowers who were granted friendly waivers, as well as the government officials who
granted these waivers; determine the validity of these waivers;

3. Determine the courses of action that the government should take to recover those loans, and to
recommend appropriate actions to the Office of the President within sixty (60) days from the date
hereof.

The Committee is hereby empowered to call upon any department, bureau, office, agency, instrumentality
or corporation of the government, or any officer or employee thereof, for such assistance as it may need in the
discharge of its functions.[3]

By Memorandum Order No. 61 dated November 9, 1992, the functions of the Committee were subsequently
expanded, viz.:

WHEREAS, among the underlying purposes for the creation of the Ad Hoc Fact-Finding Committee
on Behest Loans is to facilitate the collection and recovery of defaulted loans owing government-owned and
controlled banking and/or financing institutions;

WHEREAS, this end may be better served by broadening the scope of the fact-finding mission of the
Committee to include all non-performing loans which shall embrace behest and non-behest loans;

NOW THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of
the power vested in me by law, do hereby order:

Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans shall include in its investigation,
inventory, and study, all non-performing loans which shall embrace both behest and non-behest loans:

The following criteria may be utilized as a frame of reference in determining a behest loan:

1. It is under-collateralized;

2. The borrower corporation is undercapitalized;

3. Direct or indirect endorsement by high government officials like presence of marginal notes;

4. Stockholders, officers or agents of the borrower corporation are identified as cronies;

5. Deviation of use of loan proceeds from the purpose intended;

6. Use of corporate layering;

7. Non-feasibility of the project for which financing is being sought; and

8. Extraordinary speed in which the loan release was made.


Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve
civil liability for non-payment or non-recovery, the former may likewise entail criminal liability.[4]

Several loan accounts were referred to the Committee for investigation, including the loan transactions between Metals
Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the Development Bank of the Philippines (DBP).

After examining and studying the documents relative to the loan transactions, the Committee determined that they bore
the characteristics of behest loans, as defined under Memorandum Order No. 61 because the stockholders and officers of PEMI
were known cronies of then President Ferdinand Marcos; the loan was under-collateralized; and PEMI was undercapitalized at the
time the loan was granted.

Specifically, the investigation revealed that in 1978, PEMI applied for a foreign currency loan and bank investment on its
preferred shares with DBP. The loan application was approved on April 25, 1979 per Board Resolution (B/R) No. 1297, but the
loan was never released because PEMI failed to comply with the conditions imposed by DBP. To accommodate PEMI, DBP
subsequently adopted B/R No. 2315 dated June 1980, amending B/R No. 1297, authorizing the release of PEMIs foreign currency
loan proceeds, and even increasing the same. Per B/R No. 95 dated October 16, 1980, PEMI was granted a foreign currency loan
of $19,680,267.00 or P146,601,979.00, and it was released despite non-compliance with the conditions imposed by DBP. The
Committee claimed that the loan had no sufficient collaterals and PEMI had no sufficient capital at that time because its acquired
assets were only valued at P72,045,700.00, and its paid up capital was only P46,488,834.00.

Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-Finding Committee, and representing the Presidential
Commission on Good Government (PCGG), filed with the Office of the Ombudsman (Ombudsman) a sworn complaint for
violation of Sections 3(e) and (g) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, against the respondents
Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea; Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo,
Bienvenido R. Tantoco, Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes.[5]

After considering the Committees allegation, the Ombudsman handed down the assailed Resolution,[6] dismissing the
complaint. The Ombudsman conceded that there was ground to proceed with the conduct of preliminary
investigation. Nonetheless, it dismissed the complaint holding that the offenses charged had already prescribed, viz.:

[W]hile apparently, PEMI was undercapitalized at the time the subject loans were entered into; the
financial accommodations were undercollateralized at the time they were granted; the stockholders and officers
of the borrower corporation are identified cronies of then President Marcos; and the release of the said loans was
made despite non-compliance by PEMI of the conditions attached therewith, which consequently give a
semblance that the subject Foreign Currency Loans are indeed Behest Loans, the prosecution of the offenses
charged cannot, at this point, prosper on grounds of prescription.

It bears to stress that Section 11 of R.A. No. 3019 as originally enacted, provides that the prescriptive
period for violations of the said Act (R.A. 3019) is ten (10) years.Subsequently, BP 195, enacted on March 16,
1982, amended the period of prescription from ten (10) years to fifteen (15) years

Moreover as enunciated in [the] case of People vs. Sandiganbayan, 211 SCRA 241, the computation of
the prescriptive period of a crime violating a special law like R.A. 3019 is governed by Act No. 3326 which
provides, thus:

xxxx

Section 2. Prescription shall begin to run from the day of the commission of the
violation of law, and if the same be not known at the time, from the discovery thereof and the
The prescription shall be interrupted when the proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy.

Corollary thereto, the Supreme Court in the case of People vs. Dinsay, C.A. 40 O.G. 12th Supp., 50,
ruled that when there is nothing which was concealed or needed to be discovered because the entire series of
transactions were by public instruments, the period of prescription commenced to run from the date the said
instrument were executed.

The aforesaid principle was further elucidated in the cases of People vs. Sandiganbayan, 211 SCRA
241, 1992, and People vs. Villalon, 192 SCRA 521, 1990, where the Supreme Court pronounced that when the
transactions are contained in public documents and the execution thereof gave rise to unlawful acts, the violation
of the law commences therefrom. Thus, the reckoning period for purposes of prescription shall begin to run
from the time the public instruments came into existence.

In the case at bar, the subject financial accommodations were entered into by virtue of public
documents (e.g., notarized contracts, board resolutions, approved letter-request) during the period of 1978 to
1981 and for purposes of computing the prescriptive period, the aforementioned principles in the Dinsay,
Villalon and Sandiganbayan cases will apply. Records show that the complaint was referred and filed with this
Office on October 4, 1996 or after the lapse of more than fifteen (15) years from the violation of the
law. [Deductibly] therefore, the offenses charged had already prescribed or forever barred by Statute of
Limitations.

It bears mention that the acts complained of were committed before the issuance of BP 195 on March
2, 1982. Hence, the prescriptive period in the instant case is ten (10) years as provided in the (sic) Section 11 of
R.A. 3019, as originally enacted.

Equally important to stress is that the subject financial transactions between 1978 and 1981 transpired
at the time when there was yet no Presidential Order or Directive naming, classifying or categorizing them as
Behest or Non-Behest Loans.

To reiterate, the Presidential Ad Hoc Committee on Behest Loans was created on October 8,
1992 under Administrative Order No. 13. Subsequently, Memorandum Order No. 61, dated November 9, 1992,
was issued defining the criteria to be utilized as a frame of reference in determining behest loans. Accordingly,
if these Orders are to be considered the bases of charging respondents for alleged offenses committed, they
become ex-post facto laws which are proscribed by the Constitution. The Supreme Court in the case of People v.
Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267 So 2dl, 5, held that an ex-post facto law is defined as
a law which provides for infliction of punishment upon a person for an act done which when it was committed,
was innocent.[7]

Thus, the Ombudsman disposed:

WHEREFORE, premises considered, it is hereby respectfully recommended that the instant case be
DISMISSED.

SO RESOLVED.[8]

The Committee filed a Motion for Reconsideration, but the Ombudsman denied it on July 27, 1998.

Hence, this petition positing these issues:

A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND (g) OF R.A. 3019 HAS ALREADY
PRESCRIBED AT THE TIME THE PETITIONER FILED ITS COMPLAINT.

B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND MEMORANDUM ORDER NO. 61


ARE EX-POST FACTO LAW[S].[9]
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and Caringal argued that the petition suffers from a

procedural infirmity which warrants its dismissal. They claimed that the PCGG availed of the wrong remedy in elevating the case

to this Court.

Indeed, what was filed before this Court is a petition captioned as Petition for Review on Certiorari. We have ruled, time

and again, that a petition for review on certiorari is not the proper mode by which resolutions of the Ombudsman in preliminary

investigations of criminal cases are reviewed by this Court. The remedy from the adverse resolution of the Ombudsman is a

petition for certiorari under Rule 65,[10] not a petition for review on certiorari under Rule 45.

However, though captioned as a Petition for Review on Certiorari, we will treat this petition as one filed under Rule 65 since a

reading of its contents reveals that petitioner imputes grave abuse of discretion to the Ombudsman for dismissing the

complaint. The averments in the complaint, not the nomenclature given by the parties, determine the nature of the action.[11] In

previous rulings, we have treated differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such

as justice, equity, and fair play.[12]

Having resolved the procedural issue, we proceed to the merits of the case.

As the Committee puts it, the issues to be resolved are: (i) whether or not the offenses subject of its criminal complaint
have prescribed, and (ii) whether Administrative Order No. 13 and Memorandum Order No. 61 are ex post facto laws.

The issue of prescription has long been settled by this Court in Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,[13] thus:

[I]t is well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No.
3019 at the time the questioned transactions were made because, as alleged, the public officials concerned
connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be
computed from the discovery of the commission thereof and not from the day of such commission.[14]

The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Ombudsman Desierto,[15] wherein
the Court explained:

In cases involving violations of R.A. No. 3019 committed prior to the February 1986 EDSA
Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party
could not have known of the violations at the time the questioned transactions were made. Moreover, no person
would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period
commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the
Presidential Ad Hoc Committee on Behest Loans.[16]

This is now a well-settled doctrine which the Court has applied in subsequent cases involving the PCGG and the Ombudsman.[17]
Since the prescriptive period commenced to run on the date of the discovery of the offenses, and since discovery could
not have been made earlier than October 8, 1992, the date when the Committee was created, the criminal offenses allegedly
committed by the respondents had not yet prescribed when the complaint was filed on October 4, 1996.

Even the Ombudsman, in its Manifestation & Motion (In Lieu of Comment),[18] conceded that the prescriptive period
commenced from the date the Committee discovered the crime, and not from the date the loan documents were registered with the
Register of Deeds. As a matter of fact, it requested that the record of the case be referred back to the Ombudsman for a proper
evaluation of its merit.

Likewise, we cannot sustain the Ombudsmans declaration that Administrative Order No. 13 and Memorandum Order No.
61 violate the prohibition against ex post facto laws for ostensibly inflicting punishment upon a person for an act done prior to
their issuance and which was innocent when done.

The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and unequivocal breach
of the Constitution, not a doubtful or arguable implication; a law shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt. The presumption is always in favor of constitutionality. To doubt is to
sustain.[19] Even this Court does not decide a question of constitutional dimension, unless that question is properly raised and
presented in an appropriate case and is necessary to a determination of the case, i.e., the issue of constitutionality must be the
very lis mota presented.[20]

Furthermore, in Estarija v. Ranada,[21] where the petitioner raised the issue of constitutionality of Republic Act No. 6770
in his motion for reconsideration of the Ombudsmans decision, we had occasion to state that the Ombudsman had no jurisdiction
to entertain questions on the constitutionality of a law. The Ombudsman, therefore, acted in excess of its jurisdiction in declaring
unconstitutional the subject administrative and memorandum orders.

In any event, we hold that Administrative Order No. 13 and Memorandum Order No. 61 are not ex post facto laws.

An ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which
was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when
committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time
of the commission of the offense in order to convict the defendant.[22] This Court added two (2) more to the list, namely: (e) that
which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done
was lawful; or (f) that which deprives a person accused of a crime of some lawful protection to which he has become entitled,
such as the protection of a former conviction or acquittal, or a proclamation of amnesty.[23]

The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal
laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define
crimes, treat of their nature, and provide for their punishment.[24] The subject administrative and memorandum orders clearly do
not come within the shadow of this definition. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding
Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting
behest loans.Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws,
Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no
basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto.

One final note. Respondents Mapa and Zalamea, in their respective comments, moved for the dismissal of the case
against them. Mapa claims that he was granted transactional immunity from all PCGG-initiated cases,[25] while Zalamea denied
participation in the approval of the subject loans.[26] The arguments advanced by Mapa and Zalamea are matters of defense which
should be raised in their respective counter-affidavits. Since the Ombudsman erroneously dismissed the complaint on ground of
prescription, respondents respective defenses were never passed upon during the preliminary investigation. Thus, the complaint
should be referred back to the Ombudsman for proper evaluation of its merit.

WHEREFORE, the petition is GRANTED. The assailed Resolution and Order of the Office of Ombudsman in OMB-0-
96-2428, are SET ASIDE. The Office of the Ombudsman is directed to conduct with dispatch an evaluation of the merits of the
complaint against the herein respondents.
SO ORDERED.

SUZETTE NICOLAS v ROMULO, G.R. No. 175888

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals
in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with
the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith
Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as
amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached
hereto and made an integral part hereof as Annex A, committed as follows:

That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport
Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-named
accuseds (sic), being then members of the United States Marine Corps, except Timoteo L.
Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd
design and by means of force, threat and intimidation, with abuse of superior strength and
taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one
Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-
162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St.,
Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and
consent of the said Suzette S. Nicolas, to her damage and prejudice.

CONTRARY TO LAW.[1]

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered
into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for
security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court
every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith
guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence
against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime
charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also
of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE
DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as
amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to
suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of
the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by
the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending
agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the
Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.


NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.

SO ORDERED.[2]

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law
enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a
facility for detention under the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of America agree
that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel
J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO


Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon
transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be
detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10
x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail
authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG)
will have access to the place of detention to ensure the United States is in compliance with the terms of the
VFA.
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become
moot.[3]

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is
void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan
v. Zamora,[4] brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the previous
ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a
specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by
a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in
the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and,
eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired
from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases
and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by
the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained
by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United
States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US
Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or
facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to
prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our
territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed
Forces in Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized
as a treaty by the other contracting State.

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by the Philippine Senate and has been recognized as
a treaty by the United States as attested and certified by the duly authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its
status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United
States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice
and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking
agreements are merely submitted to Congress, under the provisions of the so-called CaseZablocki Act, within sixty days from
ratification.[6]

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30,
1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States
Senate.

The RP-US Mutual Defense Treaty states:[7]

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live
in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in a common
bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the illusion that either
of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense
altering or diminishing any existing agreements or understandings between the Republic of the Philippines and
Have agreed as follows:

ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international
disputes in which they may be involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international relation from the threat or use of
force in any manner inconsistent with the purposes of the United Nations.

ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties separately and
jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.

ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external armed attack in the
Pacific.

ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be
dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance
with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security
Council of the United Nations. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.

ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an
armed attack on the metropolitan territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.

ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for
the maintenance of international peace and security.

ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of
America in accordance with their respective constitutional processes and will come into force when instruments
of ratification thereof have been exchanged by them at Manila.

ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after
notice has been given to the other party.

IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

DONE in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:


(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL

For the United States of America:

(Sgd.) DEAN ACHESON


(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack
fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide
for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The
Preamble of the VFA states:
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to
strengthen international and regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes their
common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of
the Philippines;

Have agreed as follows:[9]

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the
VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its
ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a
treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.[10]

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the
US Armed Forces through the VFA is a presence allowed under the RP-US Mutual Defense Treaty. Since the RP-US Mutual
Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of
the Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its
terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the
following rules apply:

Article V
Criminal Jurisdiction

xxx
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those authorities
in time for any investigative or judicial proceedings relating to the offense with which the person has been
charged. In extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any
obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the
one year period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to
allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory and all other accused.[11]

The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world
vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed
upon by the parties.[12]

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or
violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one
State do not extend or apply except to the extent agreed upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects
of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State allowed to enter another States territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land.
(Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention
as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following
provision of the VFA:

Article V
Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippines and United States authorities. United
States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after
conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not
only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be
by Philippine authorities. Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not by
Philippine authorities.

Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an
agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No.
06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically part of their domestic
law unless these treaties are self-executing or there is an implementing legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga,
et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v.
President Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court
decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations
that are not self-executory can only be enforced pursuant to legislation to carry them into effect; and
that, while treaties may comprise international commitments, they are not domestic law unless
Congress has enacted implementing statutes or the treaty itself conveys an intention that it be self-
executory and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or
because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate
and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its
provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-
US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying
with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is
the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their
ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been
registered under the Case-Zablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International
Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not self-executing and are
not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as
reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic courts varies from
country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW
IN NATIONAL COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other
contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be
recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and
the enforcement of that obligation is left to the normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,[13] an executive agreement is a treaty within the
meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States. Thus, the US
Supreme Court in Weinberger enforced the provisions of the executive agreement granting preferential employment to Filipinos in
the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2
of the US Constitution.

2. ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and need not
be submitted to the Senate.

3. Sole Executive Agreements. These are agreements entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they
are recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it
and this can only be done through implementing legislation. The VFA itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212
dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the
United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of
December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is
hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities
under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until
further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition
for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction. No costs.
SO ORDERED.

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.


[1]
Petitioner Evangeline Ladonga seeks a review of the Decision, dated May 17, 1999, of the Court of Appeals in
CA-G.R. CR No. 20443, affirming the Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch 3 of
Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of violation of B.P. Blg. 22, otherwise known as The
Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC, docketed as Criminal
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating, and mutually helping with one another, knowing fully well that they did not
have sufficient funds deposited with the United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and there willfully,
unlawfully, and feloniously, draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of NINE
THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and
thereafter, without informing the latter that they did not have sufficient funds deposited with the bank to cover up the amount of
the check, did then and there willfully, unlawfully and feloniously pass on, indorse, give and deliver the said check to Alfredo
Oculam by way of rediscounting of the aforementioned checks; however, upon presentation of the check to the drawee bank for
encashment, the same was dishonored for the reason that the account of the accused with the United Coconut Planters Bank,
Tagbilaran Branch, had already been closed, to the damage and prejudice of the said Alfredo Oculam in the aforestated amount.

[2]
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.

The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly worded, except
for the allegations concerning the number, date and amount of each check, that is:
[3]
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount of P12,730.00;
[4]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the amount of P8,496.55.
The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two accused pleaded not
[5]
guilty to the crimes charged.
The prosecution presented as its lone witness complainant Alfredo Oculam. He testified that: in 1989, spouses
[6]
Adronico and Evangeline Ladonga became his regular customers in his pawnshop business in Tagbilaran City,
[7]
Bohol; sometime in May 1990, the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United
[8]
Coconut Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, 1990 issued by Adronico; sometime
in the last week of April 1990 and during the first week of May 1990, the Ladonga spouses obtained an additional loan
of P12,730.00, guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990 issued by
[9]
Adronico; between May and June 1990, the Ladonga spouses obtained a third loan in the amount of P8,496.55,
[10]
guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by Adronico; the three checks
[11]
bounced upon presentment for the reason CLOSED ACCOUNT; when the Ladonga spouses failed to redeem the
[12]
check, despite repeated demands, he filed a criminal complaint against them.
While admitting that the checks issued by Adronico bounced because there was no sufficient deposit or the
account was closed, the Ladonga spouses claimed that the checks were issued only to guarantee the obligation, with
[13]
an agreement that Oculam should not encash the checks when they mature; and, that petitioner is not a signatory
[14]
of the checks and had no participation in the issuance thereof.
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty beyond reasonable
doubt of violating B.P. Blg. 22, the dispositive portion of which reads:

Premises considered, this Court hereby renders judgment finding accused Adronico Ladonga, alias Ronie, and Evangeline
Ladonga guilty beyond reasonable doubt in the aforesaid three (3) criminal cases, for which they stand charged before this Court,
and accordingly, sentences them to imprisonment and fine, as follows:

1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of them, and a fine in the amount of P9,075.55,
equivalent to the amount of UCPB Check No. 284743;

2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1) year and a fine of P12, 730.00, equivalent to
the amount of UCPB Check No. 284744; and,

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of them and a fine of P8,496.55 equivalent to the
amount of UCPB Check No. 106136;

4. That both accused are further ordered to jointly and solidarily pay and reimburse the complainant, Mr. Alfredo Oculam, the sum
of P15,000.00 representing actual expenses incurred in prosecuting the instant cases; P10,000.00 as attorneys fee; and the amount
of P30,302.10 which is the total value of the three (3) subject checks which bounced; but without subsidiary imprisonment in case
of insolvency.

With Costs against the accused.

[15]
SO ORDERED.

[16]
Adronico applied for probation which was granted. On the other hand, petitioner brought the case to the Court
of conspiracy is inapplicable to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of the checks and
[17]
had no participation in the issuance thereof.
[18]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. It held that the provisions of the
[19]
penal code were made applicable to special penal laws in the decisions of this Court in People vs. Parel, U.S. vs.
[20] [21]
Ponte, and U.S. vs. Bruhez. It noted that Article 10 of the Revised Penal Code itself provides that its provisions
shall be supplementary to special laws unless the latter provide the contrary. The Court of Appeals stressed that
since B.P. Blg. 22 does not prohibit the applicability in a suppletory character of the provisions of the Revised Penal
Code (RPC), the principle of conspiracy may be applied to cases involving violations of B.P. Blg.22. Lastly, it ruled that
the fact that petitioner did not make and issue or sign the checks did not exculpate her from criminal liability as it is not
indispensable that a co-conspirator takes a direct part in every act and knows the part which everyone performed. The
Court of Appeals underscored that in conspiracy the act of one conspirator could be held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same in a Resolution dated
[22]
November 16, 1999.
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF THE THREE CHECKS THAT
BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE FOR
VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.

2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:

A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY


INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:

Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in the future may be punished under special
laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN AFFIRMING IN TOTO THE
CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF THE REVISED
[23]
PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS APPLICABLE.

Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P. Blg. 22 because she had
no participation in the drawing and issuance of the three checks subject of the three criminal cases, a fact proven by
the checks themselves. She contends that the Court of Appeals gravely erred in applying the principle of conspiracy,
as defined under the RPC, to violations of B.P. Blg. 22. She posits that the application of the principle of conspiracy
would enlarge the scope of the statute and include situations not provided for or intended by the lawmakers, such as
penalizing a person, like petitioner, who had no participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the declaration of the Court of Appeals
that some provisions of the Revised Penal Code, especially with the addition of the second sentence in Article 10, are
applicable to special laws. It submits that B.P. Blg. 22 does not provide any prohibition regarding the applicability in a
suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

The article is composed of two clauses. The first provides that offenses which in the future are made punishable
under special laws are not subject to the provisions of the RPC, while the second makes the RPC supplementary to
such laws. While it seems that the two clauses are contradictory, a sensible interpretation will show that they can
perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are controlling with regard to
offenses therein specifically punished. Said clause only restates the elemental rule of statutory construction that
[24]
special legal provisions prevail over general ones. Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether. The second clause contains the soul of the
article. The main idea and purpose of the article is embodied in the provision that the "code shall be supplementary" to
special laws, unless the latter should specifically provide the contrary.
[25] [26] [27]
The appellate courts reliance on the cases of People vs. Parel, U.S. vs. Ponte, and U.S. vs. Bruhez rests
on a firm basis. These cases involved the suppletory application of principles under the then Penal Code to special
[28]
laws. People vs. Parel is concerned with the application of Article 22 of the Code to violations of Act No. 3030, the
Election Law, with reference to the retroactive effect of penal laws if they favor the accused. U.S. vs. Ponte involved
[29]
the application of Article 17 of the same Penal Code, with reference to the participation of principals in the
commission of the crime of misappropriation of public funds as defined and penalized by Act No. 1740. U.S. vs.
[30]
Bruhez covered Article 45 of the same Code, with reference to the confiscation of the instruments used in violation
of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the
absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily
[31]
applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs. People, the Court applied suppletorily
[32]
the provisions on subsidiary imprisonment under Article 39 of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to the application of the
provision on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a
criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of
[33]
participation of each of them becomes secondary, since all the conspirators are principals.
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the
[34]
complicity. The overt act or acts of the accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the
[35]
criminal plan.
In the present case, the prosecution failed to prove that petitioner performed any overt act in furtherance of the
alleged conspiracy. As testified to by the lone prosecution witness, complainant Alfredo Oculam, petitioner was merely
[36]
present when her husband, Adronico, signed the check subject of Criminal Case No. 7068. With respect to Criminal
Case Nos. 7069-7070, Oculam also did not describe the details of petitioners participation. He did not specify the
nature of petitioners involvement in the commission of the crime, either by a direct act of participation, a direct
inducement of her co-conspirator, or cooperating in the commission of the offense by another act without which it
would not have been accomplished. Apparently, the only semblance of overt act that may be attributed to petitioner is
that she was present when the first check was issued. However, this inference cannot be stretched to mean
concurrence with the criminal design.
[37]
Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Conspiracy
transcends mere companionship and mere presence at the scene of the crime does not in itself amount to
[38]
conspiracy. Even knowledge, acquiescence in 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
[39]
the common design and purpose.
[40]
As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes
culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove
it must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared
and kept within the penal fold.

Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always be founded on
the strength of the prosecutions evidence. The Court ruled thus in People v. Legaspi, from which we quote:

At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco, merely relied and pegged the
latters criminal liability on its sweeping theory of conspiracy, which to us, was not attendant in the commission of the crime.

The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution
and not on the weakness of the evidence for the defense. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then
is moral certainty.

Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in order to overcome the
constitutional presumption of innocence.

In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In
evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite
[41]
quantum of proof required in all criminal cases. (Citations omitted)

All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its evidence falls short of
the quantum of proof required for conviction. Accordingly, the constitutional presumption of the petitioners innocence
must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of the Court of
Appeals in CA-G.R. CR No. 20443 affirming the Decision, dated August 24, 1996, of the Regional Trial Court (Branch
3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the charges against her under B.P.
Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable doubt. No pronouncement as to costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES v ALFONSO BAUTISTA


In a joint decision, the Regional Trial Court, Branch 48, of Urdaneta, Pangasinan rendered two verdicts of
conviction in Criminal Cases Nos. U-8191 and U-8192, finding accused-appellant Alfonso Bautista, alias Poldo, guilty
of the charge of illegal possession of firearm and ammunition and of the complex crime of murder with frustrated
murder and attempted murder, respectively. Appellant insists in this present appellate review that the trial court should
not have granted affirmative weight to the testimonies of prosecution witnesses Ferdinand Datario and Rolando
Nagsagaray as the bases for his conviction, considering that, inter alia, after they alledgedly caught a glimpse of
appellant at the scene of the crime, they broke their silence about his supposed participation only after more than
sixteen months and under dubious circumstances.
The initiatory criminal information in Criminal Case No. U-8191 was lodged on June 13, 1994 with Branch 48 of
[1]
the Regional Trial Court of Urdaneta, Pangasinan, while that in Criminal Case No. U-8192, dated June 16, 1994, was
assigned to Branch 49 of said court. On motion of the Office of the Provincial Prosecutor, these cases were
[2]
subsequently consolidated and assigned to Branch 48 for trial. Appellant was indicted for the commission of the
aforestated crimes, as follows:

Criminal Case No. U-8191

That on or about the 18th day of May, 1992, at Barangay Dilan, municipality of Pozorrubio, province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully feloniously
have in his possession, control and custody one (1) long firearm of unknown caliber or make, without authority of law, and which
he used in shooting Barangay Captain Eduardo Datario, Bernabe Bayona and Cinderella Estrella[3]

Criminal Case No. U-8192

That on or about the 18th day of May, 1992, at Barangay Dilan, municipality of Pozorrubio, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery, did then and
there wilfully, unlawfully and feloniously, attack and sho(o)t on(e) Eduardo Datario hitting the latters face with the bullet exiting
through his neck, which wound caused his death, and further hitting the ear of Bernabe Bayona and bullet exiting through his
mouth, which wound would have caused the death of said Bernabe Bayona had it not been for the timely medical assistance
rendered to him, and the bullet finally hitting (the) right leg of Cinderella Estrella, (through) which wound accused
commenced the commission of the crime of Murder directly by overt act but did not produce it by reason of some cause other than
his spontaneous resistance, all to the damage and prejudiceof the heirs of the deceased and the two other victims[4] (Corrections
Supplied).

At the arraignment of appellant on November 10, 1994 wherein he was duly assisted by counsel, negative pleas
[5]
to the charges were entered for him pursuant to his indication in open court. Pre-trial having been waived by
appellant, trial proceeded thereafter with the presentation of several prosecution witnesses, particularly the alleged
eyewitnesses Ferdinand Datario and Rolando Nagsagaray on whose testimonies the court below principally anchored
its judgement of conviction. On the other hand, appellant himself appeared in his defense, and one Norma Reyes, a
neighbor, partly corroborated this assertions.
Professedly convinced by the evidence for the prosecution, the trial court found appellant guilty as charged and
imposed on him the penalty of life imprisonment, with costs, in Criminal Case No. U-8191. In Criminal Case No. U-
8192, appellant was sentenced to suffer the penalty of reclusion perpetua and to pay civil indemnity of P50,000.00
[6]
actual damages in the sum of P20,000.00, and the prescribed costs.
[7]
According to the evidence of the prosecution, Eduardo Datario, Barangay Captain of Dilan in Pozorrubio,
Pangasinan, was fatally shot by an assassin on the night of May 18 1992 at around ten o clock. At the time of the
treacherous assault, the victim was watching the sideshows of their barangay fiesta which were being held within the
when he arrived and took his place beside his brother at the school premises, the latter was with Rolando
Nagsagaray, Bernabe Bayona and Cinderella Estrella, among others, watching a sideshow game.
Shortly thereafter, a gun report caused the people around to scamper in different directions. In the few seconds
prior to the ensuing melee, the deceased slumped to the ground with a gunshot wound in the area of his chin which
proved to be lethal. Bernabe Bayona and Cinderella Estrella, who were beside the victim, were likewise hit apparently
by the same bullet in succession, but they fortunately survived. Bayona sustained only a wound on the left ear
followed by a grazing wound on his left upper lip, and the bullet thereafter lodge in the left thigh of Estrella.
The same prosecution eyewitness recalled that as soon as the long gun shot rang out, he instinctively turned
toward its source, and it was at the point that he saw the assailant, at an approximate distance of ten meters, holding
a long firearm aimed towards their group. That assailant, according to this witness, was herein appellant who was then
on the other side of a concrete fence which was more than five feet high. The witness then turned his attention to his
brother and with the help of other persons, they brought him to a hospital where the victim
[8]
expired. Rolando Nagsagaray, the other key prosecution eyewitness, testified along the same lines. He likewise
[9]
claimed to have seen appellant standing at the other side of the concrete fence and holding a long firearm. Both of
them admittedly did not call the attention of the people around them or those near the fence to the fact of the presence
of appellant, either for his identification or apprehension.
Appellant, a farm helper and resident of Lipit, Manaoag, Pangasinan, vehemently denied any involvement in the
shooting incident. He asserted in court that he never knew personally the victims and, although he himself could not
specifically recall where he was at the time of the killing on May 18, 1992, his neighbor, Norma Reyes, testified that he
was then at their house as a guest at the birthday celebration of her husband. Appellant also recalled that when he
was arrested in September, 1993 in San Fabian, Pangasinan, reportedly in connection with another case, he was
actually waiting for one Francisco Periamil at the latters house to collect payment of his tobacco produce. However,
Periamil instead arrived with two law enforcers who promptly arrested appellant. He was then brought to Lingayen,
Pangasinan where he was detained and it was there where he was tortured and forced to admit participation in some
[10]
unsolved killings, one of which was the murder of Eduardo Datario. It was also at the time of his arrest that the two
prosecution eyewitnesses, Ferdinand Datario and Rolando Nagsagaray, came out into the open to announce what
[11]
they allegedly witnessed on the night of May 18, 1992.
Appellant faults the trial court for its unwarranted acceptance of the version of prosecution. He argues that the
very long delay, which took all of sixteen months, on the part of Ferdinand Datario and Rolando Nagsagaray in
reporting to the authorities what they allegedly saw has definitely placed the stamp of doubt, if not incredibility, on their
testimonies. On top of that, there are inherent improbabilities and inconsistencies in their declarations in court and
which, according to appellant, are factors obviously corrosive of the prosecutions cause. With the facts in this
hypothesis, the Court is inclined to agree. For, while it is true that the matter of assigning values and weight to the
testimonies of witnesses is at best the province of the trial court, it is equally the province of appellate courts to
disregard factual findings of the former where certain facts of substance have been plainly overlooked and
[12]
misappreciated by the said lower courts.
In the case at bar, the aforesaid two eyewitnesses both averred that they feared for their lives, hence they kept
silent for sixteen months. It was only after appellant had been apprehended and had allegedly owned up to the killing
of the victim that they decided to speak and execute sworn affidavits on the matter. The trouble with their posturing is
that they had all the opportunity to pinpoint appellant as the malefactor without having to necessarily place their lives,
or of those of their families, in danger.Thus, as pointedly noted by the defense, both these witnesses could very well
have revealed what they supposedly knew to the town mayor who took a hand in the investigation of the case, or any
of the police investigators or the barangay officials, some of whom in fact were their personal friends, but they did
not. An anonymous tip to these authorities would also have been a convinient and effective course of action.
Witness these admission in the testimony of Ferdinand Datario:
Q When was the first time that you reveal(ed) the identity of the accused Alfonso Bautista to the authorities or did
you reveal to anybody the identity of the person who shot your brother Eduardo Dat(a)rio?
A Only to my father, sir.
Q And when did you tell your father that it was Alfonso Bautista who shot your brother Eduardo Datario?
A On the fourth day after the incident, sir.
COURT
Q Why did you not tell your father immediately that Alfonso Bautista shot your brother?
A Because my father might get shock(ed), Maam.
Q Why did you not reveal immediately that Alfonso Bautista was the one who shot your brother?
A We were afraid because Alfonso Bautista usually roams around, Maam.
th
A Before we brought home my brother, it was the 19 of May, the day after my brother died, Maam.
xxxxxxxxx
Q When the policeman went to your house on May 19, 1992, you have not seen Alfonso Bautista yet and yet did
not tell the police that Alfonso Bautista was the one who shot your brother?
A Yes, Maam.
Q Why?
[13]
A We were afraid to tell, Maam.
xxxxxxxxx
Q You never made any attempt to report what you saw who killed your brother on May 18, 1992?
A No, sir.
Q Now, do you know the Mayor of Pozorrubio at that time in 1992?
A Yes, sir.
Q Considering the fact that you are a barangay captains brother you are very close to him, am I right?
A Yes, sir.
Q In spite of that, you never attempt(ed) even to whisper to him what you allegedly saw on May 18, 1992?
A No, sir.
Q Now, at that time, 1992, do you personally know any policeman in the municipality of Pozorrubio?
A Yes, sir.
Q Who were they, could you please inform us?
A Investigator Balelo, Pat. Fernandez, sir.
Q You were very close to these policemen, am I right?
A Yes, sir.
Q And in spite of that you never attempted even to whisper to them that it was Alfonso Bautista alias Poldo who
allegedly shot your brother?
A I did not, sir.
xxxxxxxxx
Q Who called you at the police headquarters at Lingayen, Pangasinan?
A SPO 1 Jaime Fernandez went to our house, sir.
xxxxxxxxx
Q Now, what did SPO1 Jaime Fernandez tell you when he went to your house and convinced you to give your
sworn statement?
A He told us to go to the police headquarters, sir?
Q Did you ask him why they were calling you at the headquarters?
A Yes, sir.
Q And what was his reason?
A He told us that the one who shot the barangay captain was already arrested, sir.
xxxxxxxxx
Q And what did you do when SPO1 Fernandez told you that Alfonso Bautista admitted that he was the one who
allegedly killed your brother?
A That is why we filed a case on behalf of my deceased brother, sir.
Q So that was the only evidence you relied on when you filed this complaint only 1993?
[14]
A Yes, sir. (Italics and corrections in parentheses ours).
The veritable cock-and-bull account of witness Rolando Nagsagaray, which was obviously patterned after and to
corroborate that Ferdinand Datario, was even worse.Thus:
Q At the time the gunwielder shot Eduardo Datario, you already knew him?
A Yes, Maam.
Q So, what is the name?
A Alfonso Bautista, Maam.
xxxxxxxxx
Q Now, at what time did you go home after delivering the late Barangay Captain Datario a the Sacred Heart
Hospital?
A 1:00 oclock in the morning because he died at 1:00 oclock, sir.
Q Were you alone when you went home at that time?
A There were two (2) of us, sir.
Q Who is your companion?
A Reynaldo Datario, the brother of Eduardo Datario, Maam.
Q You never informed Reynaldo Datario of what you allegedly saw that night?
A No, sir.
COURT
Q Why did you not inform Reynaldo Datario of what you allegedly saw?
A Because I was then afraid, Maam.
Q Reynaldo Datario is the brother of Eduardo?
A Yes, Maam.
Q Now, could you please inform this Honorable Court what was the physical condition or situation of Reynaldo
Datarion when you went home.
A He cried, sir.
Q And am I right to say that while he was crying he was crying for justice for his brother at that time?
A Yes, sir.
Q And in spite of that you never informed him of what you saw that night?
A No, sir.
xxxxxxxxx
Q You do not know any baranggay official at that time?
A Napoleon Sales, sir.
xxxxxxxxx
Q How far is the house of Napoleon Sales to your house?
A Around 100 meters, sir.
Q Did you inform Napoleon Sales what you saw at that particular night?
A No, sir.
Q Do you know of any policeman stationed at Pozorrubio, Pangasinan?
A Yes, sir.
Q Could you please tell us the name of the policeman?
A Balelo, sir.
xxxxxxxxx
Q You were very close to him, am I right?
A Yes, sir.
Q In spite of that, you never informed him of what you saw on that particular night?
A No, Maam.
Q Who is the incumbent Mayor at that time in Pozorrubio?
A Manuel Venezuela, sir.
Q You know him very well, am I right?
A Yes, sir.
Q And in spite of that, you never informed him, whispered to him, of what you know that night?
A No, sir.
xxxxxxxxx
Q Do you have any parent?
A Yes, sir.
Q You were living with them that particular time.
A Yes, sir.
Q And did you ever tell them of what you allegedly saw on that particular night?
[15]
A No, sir.
Ferdinand Datario even saw appellant passing near their house during the victims wake but he never bothered to
sound the alarm, so to speak. This is an inconceivable reaction on his part, considering that there was at that time
sufficient manpower in the person of fourteen male relatives and friends then in attendance who could have physically
[16]
overpowered appellant and placed him in the custody of the law. More perplexing is the fact that while the witness
is an aggrieved consaguineous brother of the victim, yet he inexplicably remained tight-lipped over his avowed
knowledge of the identity of his own brothers killer. His behavior is certainly unnatural for one who had just lost a
sibling under the circumstances in this case, despite the opportunities under which he could have relayed what he
now alleges to have known all along which, if true, could secure retributive justice for his brother.
The rule is ordinarily to the effect that delay by a witness in divulging what he or she knows about the commission
of a crime, such as the identity of the offender, is not by itself a setback to the evidentiary value of such a witness
[17]
testimony. The courts, however, have been quick to deny evidentiary weight where such delay is not sufficiently
justified by any acceptable explanation.
For instance, well-founded fear of reprisal, or the unpredictable manner by which individuals react when
confronted by a gruesome event as to place the viewer in a state of shock for sometime, have been considered as
[18]
permissible situations resulting in delay. Invariably, however, even under the foregoing circumstances the delay
must not be undue in point of time. Thus, failure to reveal what one had witnessed about a crime for a number of days,
or weeks, or even a number of months, is allowable.But, that will not hold true where, as in the case now being
reviewed, the delay had unreasonably stretched all too far out into a year and four months, especially in the absence
of any compelling or rational basis for such self-imposed and lengthy silence.
In similar situations, the pronouncements of this Court have laid down guidelines applying foursquare to the
[19]
instant case. The holding in People vs. Cunanan, et al. was emphatic that

The natural reaction of one who witnesses a crime is to reveal it to the authorities, unless, of course, he is the author thereof. It
defies credulity that no one or two but five such witnesses made no effort to expose Cunanan if they really knew that he was the
author thereof. This stultified silence casts grave doubts as to their veracity.

In the end, we have here a specified case where evidence of identification is thoroughly unreliable. Reason: No valid explanation
was given why the Peoples witnesses did not report the identity of appellant Cunanan to the authorities during a long period of
time.

[20]
Thereafter, People vs. Cruz reiterated that ruling and trenchantly stresses as follows:

2. It took forty-two (42) days after the incident for Modesto Alipio to come out and give his sworn statement, Exhibit B, to the
Philippine Constabulary narrating therein what he saw on the occasion. x x x Failure on the part of Alipio to report to the
authorities immediately a very essential detail in the solution of the crime engenders a suspicion that he was not altogether candid
and truthful in his testimony. At any rate, the long delay, which is not caused by threat, intimidation or coercion by herein
appellant or anybody for that matter, in reporting the matter to the authorities the mayor, barangay captain, police or the Philippine
Constabulary, by one who himself was once an army man has rendered the evidence for the prosecution insufficient to establish
appellants guilty connection to the requisite of moral certainty. x x x.

[21]
More recently, People vs. Gonzales, et al. gave another instructive illustration, to wit:

Additionally, Huntorias credibility as a witness is likewise tarnished by the fact the he only came out to testify in October 1981, or
eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the failure of a witness to report at
once to the police authorities the crime he had witnessed should not be taken against him and should not affect his credibility,
here, the unreasonable delay in Huntorias coming out engenders doubt on his veracity. If the silence of an alleged witness for
several weeks renders his credibility doubtful, the more it should be for one who was mute for eight months. Further, Huntorias
long delay in revealing what he allegedly witnessed has not been satisfactorily explained. His lame excuse that he feared his life
would be endangered is too pat to be believed. There is no showing that he was threatened by the accused or by anybody. x x x.

Even then, by themselves, the testimonies of these two prosecution witnesses are replete with material
inconsistencies and incongruities. Thus, to cite just a few, Ferdinand Datario narrated that he in fact divulged to his
[22]
father, Bernardino Datario, the identity of his brothers assailant four days after the incident. He claims that he
deferred that revelation in order not to shock his father, but he does not explain why the death of the victim would not
shock his father, but the identity of the killer would.Contrarily, Bernardino Datario, declared that he came to know
about appellants participation in the crime from Ferdinand on the very same night that Eduardo was killed but that he
[23]
(the father) likewise opted for silence allegedly on account of fear at the time.
Rolando Nagsagaray, on his part, asserted in court that after shooting the deceased, appellant then merely
[24]
walked away from the concrete fence with rifle in hand. Now, said witness could have spoken the truth since the
height of the fence was about a foot more than appellants admitted height, hence the witness could not have really
[25]
seen appellant walking away from the crime scene. Besides, it sounds somewhat absurd that if appellant had to
quickly duck behind the fence immediately after firing the single shot in order to avoid recognition, he would then
nonchalantly walk away although there were many people on both sides of the fence who would recognized him. His
bringing a rifle would also naturally attract attention.
Ferdinand Datario also admitted, and this is not disputed by the parties, that between the concrete fence and the
place where their groups was then watching the sideshow, there were people milling around the structures erected for
[26]
other sideshows, which collectively obstructed his view. Although the other prosecution eye witness, Rolando
Nagsagaray, hedged on the effect of such obstructions to their vantage location, there are considerations hereafter
explained showing the correctness of Ferdinand Datarios testimony. Actually, the prosecution does not seriously
question the existence of those structures being used by the other sideshows.
There likewise in Nagsagarays version an evident taint of falsity. If he is to be believed, within the swift span of a
few seconds after hearing the gun report, he first glanced at his watch and thus recalled that it was 10:30 in the
evening when it happened; that in the process he also saw the victims Eduardo Datario, Bernabe Bayona and
Cinderella Estrella fall one after the other; that, at the same time, he observed the frightened crowd running away in
different directions, although he could not name any of them; and on top of all these, he still managed to further
[27]
obtain an excellent view of appellant behind the concrete fence. This exaggerated narration of the facts
simultaneously taking place is certainly beyond human experience. No person could have had the capacity to see all
these events taking place during those fleeting seconds, considering the rapidity of their occurrence as this witness
himself represents.
There are also a number of unexplained or inexplicable facts that enshroud the testimonies of these witnesses in
uncertainty and doubt. As ordered by the lower court, an ocular inspection of the premises was conducted by its
branch clerk of court, designated as commissioner therefor, and the salient findings are as follows:

1. The height of the fence is 1.7 meters and the distance between the fence and the center of the basketball court is 12 meters.

2. The distance between the center of the basketball court and the place where the victim fell down is 18 meters.

3. Between the basketball court and the fence are two full-grown acacia trees and one star-apple tree very close to the
fence. Immediately behind the fence is a house with two mango trees nearby.[28]

What these physical features of the crime scene reveal is that, although the place was illuminated for the
barangay feria, the presence of the big trees naturally cast shadows on wide portions thereof, especially along parts of
the concrete fence. There was no specification made by the two alleged eyewitnesses of the particular portion of the
fence where they supposedly saw appellant, except by way of a vague general direction in relation to their own variant
position, such as, to the left or right of some of them. It cannot, therefore, be said that appellant was so clearly
exposed as to be easily visible to the so-called eye-witnesses.
[29]
At the trial, it was ascertained that appellant was 5 feet 4 inches in height, obviously lower than the height of
the fence. Yet, witness Nagsagaray described appellants presence at the fence in various position, such as holding
obscured by the shadows and the view was blocked by the fence. An attempt was made to show the appellant must
have been standing on top of a water container behind the fence so he could aim his gun above it, but the records are
barren of competent evidence showing whether those containers really there that night, or who placed them there, and
on which portion along the fence they were located. In fine, we are presented with a situational problem created by a
surmise founded upon a conjecture.
The prosecution belittles appellants supposed alibi since it is easy of fabrication and is always viewed with
suspicion. However, the prosecutions own evidence which supposedly identifies appellant as the malefactor falls far
short of the requisite quantum of evidence, as earlier explained, not to speak of the absence of any firearm presented
in this court nor satisfactory evidence of appellants possession thereof. While the defense of alibi must stand
searching scrutiny, it acquires commensurate strength where no proper and positive identification has been
[32] [33]
made. The identity of the offender, like the crime itself, must be proved beyond reasonable doubt. After all, as a
paramount element for conviction, the prosecutions evidence must stand on its own merits and cannot draw strength
[34]
from the weakness of the defense.
Strictly speaking, however, when viewed from another angle with a little more perception, it does not appear that
appellant really resorted to alibi. As conventionally understood, this exculpation is invoked by an accused who
represents, often with proffered corroboration, that at the time the offense was committed he was elsewhere at a
specific place, hence he could not have participated therein. In the instant case, the peculiarity is that the appellant
steadfastly denied being at the scene of the crime but candidly admitted that he could not remember or did not know
whether at the time of the killing he was then in his tobacco field in Barangay Macayog, San Jacinto since he did not
[35]
even know about the crime in question. Withal, he could remember the dates of other events where he personally
participated, such as when he was arrested, when he was detained in San Fabian, and when he brought to Lingayen.
It is of general knowledge that in rural areas where farmers live a humdrum working existence, and where the
quotidian routine of every day is just like the last, one cannot expect them or even their families to keep diaries or
records which would enable them to honestly state where they were on particular dates, unless there was an
important reason therefor. Thus, it appeals more to common sense and realistic truth that the innocent answer of
appellant reflects more honesty than that of one who could easily fix his definite whereabouts just to subserve his
defense of alibi. The latter practice is much a matter of judicial experience and repudiation.
It is also noteworthy that no motive was ever attributed to appellant as to why he should kill the deceased or
shoot the other victims since the evidence shows beyond cavil that he did not even know any of them personally or
had any previous association or dealings with them. The rule is that proof of motive is unnecessary to impute a crime
to the accused if the evidence concerning his identification is convincing. A converso, if the evidence of identification is
[36]
unclear, then the jurisprudential doctrine is that proof of motive is a paramount necessity.
At the trial, the witness from the Philippine National Police harped on the fact that, after his arrest for another
alleged crime, herein appellant was linked to a number of long unsolved killings in the region, including the present
case. This was an unfair proposition, such that the defense was forced to rejoin that appellant was actually being
made a scapegoat in order to camouflage official incompetence by going through the motions of wiping clean the slate
of unsolved crimes through the expedient of indicting appellant for all of them. A sober note is interjected by the
Solicitor General who points out that those other cases should not be taken up here for being immaterial. Indeed,
entangling those other charges with the one at bar would run afoul of the second branch of the rule of res inter
[37]
alios acta since, even taken altogether, they could not constitute an exception thereto.
ACCORDINGLY, on reasonable doubt irresistibly created by the foregoing premises, the consolidated judgments
of the court a quo in Criminal Cases Nos. U-8191 and U-8192 are hereby REVERSED and SET ASIDE. Accused-
appellant Alfonso Bautista is hereby ACQUITTED of the present charges against him and, unless otherwise detained
for some other lawful cause, his release from confinement is consequently directed. Cost de officio.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO ACURAM, accused-appellant.

On appeal is the decision rendered on August 24, 1994, by the Regional Trial Court of Cagayan de Oro City, Branch
22, in Criminal Case No. 91-1161, finding accused-appellant Orlando Acuram guilty of murder. Supreme

On September 30, 1991, Assistant Provincial Prosecutor Benber Apepe charged appellant with the crime of murder,
allegedly committed as follows: Sjcj

"On June 29, 1991, at about 7:00 o'clock in the evening, at Poblacion, El Salvador, Misamis Oriental,
which is within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill
and treachery did, then and there, wilfully, unlawfully and feloniously and with the use of his armalite
[1]
rifle, shoot at one Orlando Manabat who was just standing on the highway waiting for a ride towards
home, thus, hitting and wounding the latter on the right leg or thigh, which caused his death the
following day.
[2]
CONTRARY TO and in violation of Article 248, paragraph 1, of the Revised Penal Code.

[3]
Upon arraignment appellant, assisted by counsel, entered a plea of not guilty to the charge. Thereafter, trial on the
merits ensued. Subsequently, the trial court rendered judgment, disposing as follows: Scjj

"WHEREFORE, in the light of the foregoing facts, convincingly proved by the prosecution, the
accused, ORLANDO ACURAM, is hereby found guilty beyond reasonable doubt, of the crime of
MURDER, qualified by treachery, and is meted the penalty of reclusion perpetua and to indemnify the
heirs of the deceased ROLANDO MANABAT the jurisprudential sum of fifty thousand (P50,000.00)
pesos, without subsidiary imprisonment in case of insolvency and to pay the cost of the suit.

[4]
SO ORDERED."

The records disclose that on June 29, 1991, at around seven o'clock in the evening, Rolando Manabat, Oscar
Manabat, Bartolome Nabe, and Peterson Valendres, after the day's work, proceeded to the market in El Salvador,
Misamis Oriental, to buy fish. Since no fish was available at that time, they decided to head for home instead. They
went to the national highway, stood at the right side facing east towards the direction of Cagayan de Oro City and
waited for a ride there. They flagged down an approaching passenger jeepney which, however, swerved dangerously
towards them. At this juncture, Rolando Manabat shouted at the jeep "Pesteng yawa-a kamo, Manligis man kamo
" (You devils, why did you try to run over us?). A passenger inside the jeepney shouted back, "Noano man diay, isog
mo?" (Why? Are you brave?). Immediately thereafter, two gunshots rang out in the air, accompanied by sparks
coming from the front right side of the jeepney. Then Rolando shouted, "Agay. I was shot." The vehicle did not stop
but instead speeded towards the direction of Cagayan de Oro City. Wounded on the right knee, Rolando was brought
by his companions to the Cagayan de Oro Medical Center. Later on, they were informed that Rolando needed blood
transfusion and so they transferred him at around 11:25 P.M. to the Northern Mindanao Regional Hospital in the same
city. Jjsc

Upon arrival at the hospital, Rolando was examined by Dr. Ismael Naypa, Jr. The doctor found the victim's blood
pressure to be just forty over zero (40/0) and the victim's right leg was heavily bandaged. He decided to operate on
the victim when the latter's blood pressure stabilized. At about 5:00 A.M. the following day, the victim underwent
surgery. Unfortunately, the victim died at around 11:00 A.M. Dr. Naypa later testified that the cause of Rolando's death
was "secondary to huddle respiratory syndrome secondary to blood loss, secondary to gunshot wounds", or briefly,
massive loss of blood due to gunshot wound. He stated that under normal circumstances, the wound would not
necessarily cause death but in this case where the wound transected the major part of the leg, the wound was fatal.
He clarified that the victim sustained only one gunshot wound which entered at the front portion of the right knee and
[5]
exited at the back of the right knee, causing two wounds.

The El Salvador police conducted investigation on the incident. It was discovered that appellant Orlando Acuram, a
policeman assigned with the 421st PNP Company based at San Martin, Villanueva, Misamis Oriental, was among the
passengers of the errant jeepney. He was seated at the front, right side of the jeepney and was the only one among
its passengers who was carrying a firearm. Pending investigation, he was restricted to the camp effective July 1, 1991,
[6]
upon orders of his commanding officer, Major Rodolfo De La Piedra. Appellant was later surrendered by his
commanding officer to the custody of the court on the basis of the warrant of arrest issued by MCTC Judge Evelyn
[7]
Nery. On motion by the prosecution and without objection from the defense, the trial court suspended appellant from
[8]
the service and ordered his detention at the provincial jail.

During the trial, appellant admitted that he was on board the mentioned jeepney and had a gun at that time but denied
firing it. He claimed that it was impossible for him to fire his rifle during that time since he was sitting at the front seat of
the jeepney, sandwiched between the driver and the latter's father-in-law. Moreover, he said that the rifle was locked
[9]
and wrapped by his jacket and its barrel was even pointed towards the driver.

The trial court found the version of the defense weak, self-serving and unreliable. On the basis of the evidence
presented by the prosecution, the court found appellant guilty as charged. Insisting on his innocence, appellant readily
[10]
filed his notice of appeal. In his brief, appellant raises the following errors allegedly committed by the trial
court:Edpmis

"I

THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED APPELLANT TOOK
FLIGHT OR ESCAPED AFTER THE NIGHT OF THE INCIDENT OR IN FAILING TO CONSIDER
THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.

II
THE TRIAL COURT ERRED IN DECLARING THAT THE KILLING WAS ATTENDED BY THE
QUALIFYING CIRCUMSTANCE OF TREACHERY, GRANTING ARGUENDO THAT THE ACCUSED
APPELLANT IS GUILTY.

III

THE TRIAL COURT ERRED IN RULING THAT ACCUSED-APPELLANT IS THE PERPETRATOR


OF THE CRIME CHARGED, DESPITE THE FACT THAT ACCUSED WAS NOT PROPERLY AND
CONCLUSIVELY IDENTIFIED, AND THE ALLEGED WEAPON NOT POSITIVELY TESTED.

IV

THAT THE TRIAL COURT GRAVELY ERRED IN DISREGARDING EVIDENCE POINTING TO THE
INNOCENCE OF THE ACCUSED-APPELLANT, THAT IS, THE EXISTENCE OF EFFICIENT
[11]
INTERVENING CAUSE, WHICH IS THE PROXIMATE CAUSE OF THE DEATH OF THE VICTIM."

We shall take up in seriatim the challenges posed by appellant to the credibility and sufficiency of the evidence for the
prosecution. We shall also consider the weight and credibility of his defense.

To begin with, while appellant denies that he fled and hid after the shooting incident, we find that his behavior proves
otherwise. Appellant admits that he was at the scene of the crime at the time the shooting happened. Considering that
he is a law enforcement officer, the unusual incident should have at least elicited his curiosity and he should have
[12]
inquired about it. However, he chose to ignore the incident and go his way. That a policeman could display such
indifference to a crime committed in his presence is highly incredible. While it was true that he reported for duty the
day after the incident, the following day, he was ordered by his commanding officer restricted within the camp pending
investigation of the case. By this time, appellant must have learned that his commanding officer had received a radio
message and that he was already a suspect. As the trial court noted, no superior officer will hold back from any of his
men involved, such a grave charge. Despite these, appellant did not present himself before the police in El Salvador,
Misamis Oriental. Instead, he was conveniently nowhere to be found. Misoedp

Thus, appellant's first contention that he is entitled to the mitigating circumstance of voluntary surrender, in our view, is
quite untenable. The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up
and submit himself unconditionally to the authorities either because he acknowledges his guilt or he wishes to save
[13]
them the trouble and expense necessarily incurred in his search and capture. In this case, it was appellant's
commanding officer who surrendered him to the custody of the court. Being restrained by one's superiors to stay
within the camp without submitting to the investigating authorities concerned, is not tantamount to voluntary surrender
as contemplated by law. The trial court is correct in not appreciating the mitigating circumstance of voluntary surrender
in appellant's favor. Misedp

On his second assignment of error, however, we find convincing merit. Appellant asserts that the trial court erred in
concluding that the killing was qualified by treachery. On this point, we agree. For treachery to be considered an
aggravating circumstance, there must be proof that the accused consciously adopted a mode of attack to facilitate the
[14]
perpetration of the killing without risk to himself. In this case, the shooting was done at the spur of the moment. As
observed by the trial court, the victim had shouted damning curses at the driver and the passengers of the jeepney.
[15]
The shooting was on instantaneous response to the cursing, as appellant correctly claimed. Treachery cannot be
appreciated where the accused shot the victim as a result of a rash and impetuous impulse rather than from a
[16]
deliberate act of the will.

Thirdly, appellant contends that the trial court erred in ruling that he was the perpetrator of the crime. He claims he
was not conclusively identified and the alleged fatal weapon was not positively tested. True, prosecution witnesses did
not positively identify appellant as the one who fired the gun at the victim. Nevertheless, direct evidence of the
[17]
commission of the crime is not the only matrix where the trial court may draw its conclusions and findings of guilt. It
is settled that conviction may be based on circumstantial evidence provided that the following requisites must concur:
(a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
[18]
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial
evidence could be of similar weight and probative value as direct evidence. From direct evidence of a minor fact or
facts, by a chain of circumstances the mind is led intuitively, or by a conscious process of reasoning, towards a
[19]
conviction that from said fact or facts some other facts may be validly inferred. No greater degree of certainty is
required when the evidence is circumstantial than when it is direct. In either case, what is required is that there be
[20]
proof beyond reasonable doubt that the crime was committed and that the accused committed the crime.

As noted by the trial court and the Solicitor General, the evidence for the prosecution is replete with details, duly
proven by the prosecution and to some extent by admissions of the defense, enough to sustain the guilt of appellant.
member of the Philippine National Police. He was skilled in handling firearms. (2) The appellant was issued a firearm
(armalite rifle) by his command, which he was then carrying with him before, during and after the incident. (3) At the
particular date, time and place of the incident, appellant was carrying his duly issued armalite rifle inside the jeepney
from where the gunfire came from. (4) The appellant was sitting on the extreme front-right-side of the jeepney where
the sparks of the gunbursts were seen and heard by the witnesses. (5) There were no other persons with a rifle inside
the jeepney except the appellant. (6) The empty shells of an armalite rifle were recovered at the place where the fatal
shooting occurred. (7) The appellant did not go forward to the authorities to present himself until after a warrant of
[21]
arrest was issued and, in fact, until his actual arrest.

The aforecited circumstances taken together constitute an unbroken chain leading to a reasonable conclusion that
appellant, to the exclusion of others, was responsible for the victim's death. They constitute proof beyond reasonable
doubt that appellant was the perpetrator of the offense. It is the height of desperation on appellant's part to insist that
there should be an eyewitness to the precise moment the shot was fired considering the sudden and completely
[22]
unexpected shooting of the victim. Here, circumstantial evidence suffices. Edp

Appellant's insistence on his innocence in view of the absence of paraffin and ballistic tests, in our view, is far from
convincing. Suffice it to state that even negative findings of the paraffin test do not conclusively show that a person did
not fire a gun. The absence of nitrates could be explained if a person discharged a firearm with gloves on, or if he
[23]
thoroughly washed his hands thereafter.

Lastly, in his attempt to exculpate himself, appellant blames the death of the victim on the lack of prompt and proper
medical attention given. He insists that the delay in giving proper medical attendance to the victim constitutes an
efficient intervening cause which exempts him from criminal responsibility. This assertion is disingenuous, to say the
least. Appellant never introduced proof to support his allegation that the attending doctors in this case were negligent
in treating the victim. On the contrary, Dr. Ismael Naypa, Jr., testified that the attending doctor at the Cagayan de Oro
Medical Center tried his best in treating the victim by applying bandage on the injured leg to prevent hemorrhage. He
added that the victim was immediately given blood transfusion at the Northern Mindanao Regional Hospital when the
doctor found out that the victim had a very low blood pressure. Thereafter, the victim's blood pressure stabilized.
Then, the doctor operated the victim as the main blood vessel of the victim's right leg was cut, thereby causing
massive loss of blood. The surgery was finished in three hours. Unfortunately, the victim died hours later. We cannot
hold the attending doctors liable for the death of the victim. The perceived delay in giving medical treatment to the
victim does not break at all the causal connection between the wrongful act of the appellant and the injuries sustained
by the victim. It does not constitute efficient intervening cause. The proximate cause of the death of the deceased is
the shooting by the appellant. It is settled that anyone inflicting injuries is responsible for all the consequences of his
criminal act such as death that supervenes in consequence of the injuries. The fact that the injured did not receive
proper medical attendance would not affect appellant's criminal responsibility. The rule is founded on the practical
policy of closing to the wrongdoer a convenient avenue of escape from the just consequences of his wrongful act. If
the rule were otherwise, many criminals could avoid just accounting for their acts by merely establishing a doubt as to
[24]
the immediate cause of death.

To conclude, since the qualifying circumstance was not proved in this case, the crime committed is only homicide, not
murder. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal.
As there is neither aggravating nor mitigating circumstance found by the trial court or shown after a review of the
records, the penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from a
minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further applying the
Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum
to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to
12 years. The span of reclusion temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4
months. Edpsc

WHEREFORE, the assailed DECISION of the Regional Trial Court of Cagayan de Oro City, Branch 22, in Criminal
Case No. 91-1161, is hereby MODIFIED. Appellant Orlando Acuram is hereby found GUILTY of HOMICIDE and
sentenced to suffer a prison term of 10 years of the medium period of prision mayor, as minimum, to 15 years and 10
months and 1 day of the medium period of reclusion temporal, as maximum, with accessory penalties provided by law,
to indemnify the heirs of the deceased Rolando Manabat in the amount of P50,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

JACINTA V PEOPLE GR NO 162540


Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the
[1]
Decision of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of
the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004denying petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged
before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as
follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping
one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by
JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse
of trust and confidence reposed upon them with intent to gain and without the knowledge and consent of the
owner thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment
made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the
aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as
follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check
Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases
from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing,
merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one
of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega
Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to
make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an
employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle
that the subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia, a
neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace
the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter
to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check
for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced.[5] Verification from
company records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained
that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to
have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity
of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didnt
know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation
with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the
NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO
check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check
replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her
husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she
decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went
on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that
she was getting cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10,000.00
marked money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep,
gave P5,000.00 each to Valenciaand petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been
watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and
dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a
criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of
Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped
collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on
the day of the arrest, Ricablanca came to her mothers house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital,
Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place
in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house
of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her
job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the
phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed
to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never been
to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep. After
ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, What is this? Then, the
NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive portion
of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita
Busog De Valencia y Rivera and Jacqueline Capitle GUILTYbeyond reasonable doubt of the crime
of QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS,
FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS
AND TWENTY (20) DAYS, as maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads,
thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;


(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto,
but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the
CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond


reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined
under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the
fact that petitioner, as collector for Mega Foam, did not remit thecustomer's check payment to her employer and, instead,
appropriated it for herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown
by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done without the owners
consent petitioner hid the fact that she had received the check payment from her employer's customer by not remitting the check to
the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the
check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the
theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by
Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value,
as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person,
peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial
court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of
an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code,
because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or


property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims
sought are impossible. - When the person intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended
was by its nature one of impossible accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the
degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that
the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the
Revised Penal Code was further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or property
because: (1) the commission of the offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender
must be by its nature one impossible of accomplishment. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime.

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

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the
coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot
enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully
hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the
time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely
worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said
dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement
for the dishonored check, is of no moment. The Court held in Valenzuela v. People[12] that under the definition of theft in Article
308 of the Revised Penal Code, there is only one operative act of execution by the actor involved in theft ─ the taking of personal
property of another. Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in
the language of the law that theft is already produced upon the tak[ing of] personal property of another without
the latters consent.

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is
produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that the offender, once having committed all
the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation
from the owner alone has already ensued from such acts of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the
felony in its consummated stage. x x x [13]

From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for
Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of
accomplishment in this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince
Baby Aquino to give cash as replacement for the check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement should not be
considered as a continuation of the theft. At most, the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and
separate fraudulent scheme.Unfortunately, since said scheme was not included or covered by the allegations in the Information,
the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at
all, that fraudulent scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003,
and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is
SO ORDERED.

VALENZUELA V PEOPLE GR NO 160188

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
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
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
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 delhurto 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.

PEOPLE V LIZADA GR NO 143468-72


[1]
This is an automatic review of the Decision of the Regional Trial Court of Manila, Branch 54, finding accused-
appellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the
death penalty for each count.

I. The Charges

[2]
Accused-appellant was charged with four (4) counts of qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:

That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.
XXX

That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA Y AGOO, against her will and consent.

Contrary to law.[3]

The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-
171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty
[4]
to each of the charges. A joint trial then ensued.

[5]
II. Evidence of the Prosecution

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia,
[6]
who was born on December 18, 1985; Jepsy, who was 11 years old, and Rossel, who was nine years old. However,
the couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young
children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad
Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan,
bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her
house. She sold Avon products from house to house to augment her income. Whenever she was out of their house,
Rossel and Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her
T-shirt and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her
vagina. Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex
organ.Satiated, accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to
her. Accused-appellant then returned to his room. The incident lasted less than one hour. Petrified by the threats on
[7]
her life, Analia kept to herself what happened to her.
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and
held her legs and arms. He then inserted his finger into her sex organ (fininger niya ako). Satiated, accused-appellant
left the room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times
a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her
assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his mother was
away. Analia went into her room and lay down in bed. She did not lock the door of the room because her brother might
enter any time. She wanted to sleep but found it difficult to do so. Accused-appellant went to his room next to the room
of Analia. He, however, entered the room of Analia. He was wearing a pair of short pants and was naked from waist
up. Analia did not mind accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on top of her, held her hands and legs
and fondled her breasts. She struggled to extricate herself. Accused-appellant removed her panty and touched her
sex organ. Accused-appellant inserted his finger into her vagina, extricated it and then inserted his penis into her
vagina.Accused-appellant ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of
Analia after drinking water from the refrigerator, and peeped through the door. He saw accused-appellant on top of
his room and sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the
house and stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother
what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop.However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose
returned, a heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit
Analia. This prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the house on
board the motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some
tapes which had not yet been returned. When Rose inquired from her daughter what she meant by her
statement, ayoko na, ayoko na, she told her mother that accused-appellant had been touching the sensitive parts of
her body and that he had been on top of her. Rose was shocked and incensed. The two proceeded
to Kagawad Danilo Santos to have accused-appellant placed under arrest.On November 10, 1998, the two proceeded
to the Western Police District where Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of
SPO2 Fe H. Avindante. She related to the police investigator that accused-appellant had touched her breasts and
arms in August, 1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then
submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal officer of the NBI. The medico-legal
[8]
officer interviewed Analia, told him that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained her findings during her
examination on Analia, thus:

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. ----, brown, 3.0
cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa, pinkish. Hymen, tall,
thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.

2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized adult
Filipino male organ in full erection without producing any genital injury.[9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi ko. When Rose
inquired from her daughter what she meant by her statement, Analia revealed to her mother that accused-appellant
had sexually abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and
[10]
charged accused-appellant with rape.

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in
1994 to live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine
Banking Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his
own children. He took care of them, as in fact he cooked and prepared their food before they arrived home from
school. At times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was
hard-headed because she disobeyed him whenever he ordered her to do some errands. Because of Analias
misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave
their house. Another irritant in his and Roses lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay
of P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact
disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used
them to fabricate charges against him because Rose wanted to manage their business and take control of all the
properties they acquired during their coverture. Also, Rose was so exasperated because he had no job.

IV. The Verdict

On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond
reasonable doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the
Revised Penal Code, and meted on him the death penalty for each count. The dispositive portion of the decision
reads:

From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable doubt of the
crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each and
every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.

SO ORDERED.[11]

V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in his brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND
[12]
SUCH FAILURE IS A REVERSIBLE ERROR.
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS
OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
[13]
DOUBT.

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as
it failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of
the 1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its
decision. The trial court merely summarized the testimonies of the witnesses of the prosecution and those of accused-
appellant and his witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to
state in said decision the factual and legal basis for the imposition of the supreme penalty of death on him. The
Solicitor General, on the other hand, argues that there should be no mechanical reliance on the constitutional
provision. Trial courts may well-nigh synthesize and simplify their decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial court did not elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is valid. In any event, the Solicitor General contends that despite the
infirmity of the decision, there is no need to remand the case to the trial court for compliance with the constitutional
requirement as the Court may resolve the case on its merits to avoid delay in the final disposition of the case and
afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides
that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law
on which it is based. This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on
Criminal Procedure, as amended, which reads:

SEC. 2. Form and contents of judgment.The judgment must be written in the official language, personally and directly prepared
by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused
and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by the
accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the participation
of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty
imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived.[14]

The purpose of the provision is to inform the parties and the person reading the decision on how it was reached
by the court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on
the issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court
[15]
that they were accorded their rights to be heard by an impartial and responsible judge. More substantial reasons for
the requirement are:

For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate what he
may consider its errors for review by a higher tribunal. For another, the decision if well-presented and reasoned, may convince the
losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the litigation with a useless
appeal. A third reason is that decisions with a full exposition of the facts and the law on which they are based, especially those
coming from the Supreme Court, will constitute a valuable body of case law that can serve as useful references and even as
precedents in the resolution of future controversies.[16]

The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled
[17]
therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution. Trial courts should
not merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on
Criminal Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-
appellant on direct and cross examinations and merely made referral to the documentary evidence of the parties then
concluded that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape
and sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the
issues raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for
convicting accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-
appellant with the curt declaration in the decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its
decision why it believed and gave probative weight to the evidence of the prosecution. Reading the decision of the trial
court, one is apt to conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme penalty of death on accused-appellant
for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal
Code. The decision of the trial court is a good example of what a decision, envisaged in the Constitution and the
Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial
court, for compliance with the constitutional provision.However, to avert further delay in the disposition of the cases,
the Court decided to resolve the cases on their merits considering that all the records as well as the evidence adduced
[18]
during the trial had been elevated to the Court. The parties filed their respective briefs articulating their respective
stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but
to disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two
persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great
caution; (3) the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength
[19]
from the weakness of the evidence of the defense. By the very nature of the crime of rape, conviction or acquittal
depends almost entirely on the credibility of the complainants testimony because of the fact that usually only the
participants can testify as to its occurrence. However, if the accused raises a sufficient doubt as to any material
element of the crime, and the prosecution is unable to overcome it with its evidence, the prosecution has failed to
discharge its burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an
acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:

Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22, 1998
and on or about September 15, 1998)

Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped
the private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
penetration by an average size adult Filipino male organ in full erection without producing any genital injury. The
physical evidence belies private complainants claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since
1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself
on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and
penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone
[20]
what he did to her. Although private complainant did not testify that she was raped on September 15, 1998 and
October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of
private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed on or
about September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period, months or
even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime
charged was committed on or about September 15, 1998 and on or about October 22, 1998.
[21]
In People vs. Gianan, this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of
which were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995
and one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of Dasmarias,
Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, taking
advantage of his superior strength over the person of his own twelve (12) year old daughter, and by means of force, violence and
intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M. Gianan,
against her will and consent, to her damage and prejudice.[22]

On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote
from the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being as
near to the actual date at which the offense was committed as provided under Section 11, Rule 110 of the Rules on
Criminal Procedure, as amended, this Court held:

Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date (November 1995)
alleged in the information, so that the latter could no longer be considered as being as near to the actual date at which the offense
was committed as provided under Rule 110, 11.

This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple rape from November 1990 up to July 21, 1994, a time difference
of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated, accused-appellants failure
to raise a timely objection based on this ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from
1996 until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-
examined the private complainant on her testimony on direct examination. The presentation by the prosecution,
without objection on the part of accused-appellant, of evidence of rape committed two times a week from 1996 until
1998 (which includes September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted
a waiver by accused-appellant of his right to object to any perceived infirmity in, and in the amendment of, the
aforesaid Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the hymen of private complainant was
[24]
still intact has no substantial bearing on accused-appellants commission of the crime. Even the slightest penetration
of the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is
[25]
sufficient that there be entrance of the male organ within the labia of the pudendum. In People vs. Baculi, cited
[26]
in People vs. Gabayron, we held that there could be a finding of rape even if despite repeated intercourse over a
period of four years, the complainant still retained an intact hymen without injury. In these cases, the private
complainant testified that the penis of accused-appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya yong ano nya and where
did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
[27]
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir. (Underlining
supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended
by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victims mother, is a special qualifying circumstance warranting the imposition of the
[28]
death penalty. However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110
of the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to
[29]
the accused. Hence, even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her mother, accused-
appellant is guilty only of simple rape. Under the given law, the penalty for simple rape is reclusion
perpetua. Conformably with current jurisprudence, accused-appellant is liable to private complainant for civil indemnity
in the amount of P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape, or a total
of P200,000.00.

Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August 1998 and November 5,
1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date
of the offense on or about August 1998 alleged therein is too indefinite, in violation of Rule 110, Section 11 of the
Revised Rules on Criminal Procedure which reads:

Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint or information the precise date the offense
was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a
date as near as possible to the actual date of its commission. (11a)[30]

Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date on or about August 1998 is sufficiently definite. After all, the date of the commission of the crime of rape
is not an essential element of the crime. The prosecution adduced conclusive proof that accused-appellant raped
private complainant on or about August 1998, as gleaned from her testimony during the trial.

The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime of rape is
not an essential element of the crime. Failure to specify the exact date when the rape was committed does not render the
Information defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge of the private complainant
under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as amended. Significantly, accused-
appellant did not even bother to file a motion for a bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned under the Information and entered a plea of not
guilty to the charge without any plaint on the sufficiency of the Information. Accused-appellant even adduced his evidence after
the prosecution had rested its case. It was only on appeal to this Court that accused-appellant questioned for the first time the
sufficiency of the Information filed against him. It is now too late in the day for him to do so. Moreover, in People vs.
Salalima,[31] this Court held that:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its
face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of
the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was
committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed before and until
October 15, 1994, sometime in the year 1991 and the days thereafter, sometime in November 1995 and some occasions prior
and/or subsequent thereto and on or about and sometime in the year 1988 constitute sufficient compliance with Section 11, Rule
In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we believe that
the allegations therein that the acts were committed sometime during the month of March 1996 or thereabout, sometime during the
month of April 1996 or thereabout, sometime during the month of May 1996 or thereabout substantially apprised appellant of the
crimes he was charged with since all the elements of rape were stated in the informations. As such, appellant cannot complain that
he was deprived of the right to be informed of the nature of the cases filed against him. Accordingly, appellants assertion that he
was deprived of the opportunity to prepare for his defense has no leg to stand on.

The prosecution proved through the testimony of private complainant that accused-appellant raped her two times
a week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally
liable of rape. We agree with accused-appellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked
from waist up, entered the bedroom of private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ.However, accused-appellant saw Rossel peeping through the door
and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep.Accused-
appellant then left the room of the private complainant. The testimony of private complainant on direct examination
reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch your
sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing that you experienced
from the hands of the accused was this that last time, the one you narrated in November 1998?
[32]
A Yes, sir.
On cross-examination, the private complainant testified, thus:
Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was your
stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt that
somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that what you
are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to free
myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your leg, is
that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate yourself,
what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
[33]
A No, your honor.
Rossel, the nine-year old brother of the private complainant corroborated in part his sisters testimony. He testified
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time and
place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole afternoon
outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you see this before or after
you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room and
[34]
slept, sir.
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister when you said the
accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a glass of
water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So---you said the accused was touching your sister. What part of her body was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand? Your sisters body was
the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are telling
to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
[35]
A Yes, sir.
In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the
aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally liable
[36]
for consummated rape.
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code,
as amended in relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record,
we believe that accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:

Art. 336. Acts of Lasciviousness.Any person who shall commit any act of lasciviousness upon other persons of either sex, under
any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.[37]

For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of
the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age.[38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to
[39]
moral impurity; or that which is carried on a wanton manner.
The last paragraph of Article 6 of the Revised Penal Code reads:

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.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[40]

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.[41]

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator,
[42]
will logically and necessarily ripen into a concrete offense. The raison detre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to
be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that
[43]
so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is
necessary that the overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the first or some subsequent step in a direct movement towards the commission of the offense after
[44]
the preparations are made. The act done need not constitute the last proximate one for completion. It is necessary,
[45]
however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts
[46]
must have an immediate and necessary relation to the offense.
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of
[47]
devising means or measures necessary for accomplishment of a desired object or end. One perpetrating
preparatory acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a
[48]
consummated felony under the law, the malefactor is guilty of such consummated offense. The Supreme Court of
Spain, in its decision of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for
[49]
designation of the offense.
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of
the action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the
[50]
acts executed (accion medio). Hence, it is necessary that the acts of the accused must be such that, by their
nature, by the facts to which they are related, by circumstances of the persons performing the same, and by the things
connected therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs.
[51]
Lamahang that:

The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must
be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of
[52]
If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not
[53] [54]
guilty of an attempted felony. The law does not punish him for his attempt to commit a felony. The rationale of the
law, as explained by Viada:

La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa, despues de
haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el borde del
abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario.[55]

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to which
the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he is capable of
arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before it is possible for any
evil consequences to ensue. Neither society, nor any private person, has been injured by his act. There is no damage, therefore, to
redress. To punish him after retreat and abandonment would be to destroy the motive for retreat and abandonment.[56]

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal
[57]
liability for the intended crime but it does not exempt him from the crime committed by him before his desistance.
In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere
preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if
not for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from
performing all the acts of execution however his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted
[58]
rape. In a case of similar factual backdrop as this case, we held:

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only be
convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing his victim
and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime of rape by reason
of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the victims brother. Thus, his penis merely
touched Mary Joys private organ. Accordingly, as the crime committed by the appellant is attempted rape, the penalty to be
imposed on him should be an indeterminate prison term of six (6) years of prision correccional as minimum to twelve (12) years
of prision mayor as maximum.

[59]
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua. Accused-
appellant should be meted an indeterminate penalty the minimum of which should be taken from prision
correccional which has a range of from six months and one day to six years and the maximum of which shall be taken
from the medium period of prision mayor which has a range of from eight years and one day to ten years, without any
modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in the amount
of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET
ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple
rape under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion
perpetua. Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts
ofP50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335
of the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as minimum to ten years of prision mayor in its
medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the
amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond
reasonable doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is
hereby meted the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private
complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way
of moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.

PEOPLE v VILLAFLORES GR NO 184926


Circumstantial evidence is admissible as proof to establish both the commission of a crime and the identity of the culprit.

Under review is the conviction of Edmundo Villaflores for rape with homicide by the Regional Trial Court (RTC),
Branch 128, in Caloocan City based on circumstantial evidence. The Court of Appeals (CA) affirmed the conviction with
modification on February 22, 2007.[1]

The victim was Marita,[2] a girl who was born on October 29, 1994 based on her certificate of live birth.[3] When her very
young life was snuffed out by strangulation on July 2, 1999, she was only four years and eight months old.[4] She had been playing
at the rear of their residence in Bagong Silang, Caloocan Cityin the morning of July 2, 1999 when Julia, her mother, first noticed
her missing from home.[5] By noontime, because Marita had not turned up, Julia called her husband Manito at his workplace
in Pasig City, and told him about Marita being missing.[6] Manito rushed home and arrived there at about 2 pm,[7] and immediately
he and Julia went in search of their daughter until 11 pm, inquiring from house to house in the vicinity. They did not find
her.[8] At 6 am of the next day, Manito reported to the police that Marita was missing.[9] In her desperation, Julia sought out a
clairvoyant (manghuhula) in an adjacent barangay, and the latter hinted that Marita might be found only five houses away from
their own. Following the clairvoyants direction, they found Maritas lifeless body covered with a blue and yellow sack[10] inside the
comfort room of an abandoned house about five structures away from their own house.[11] Her face was black and blue, and
bloody.[12] She had been tortured and strangled till death.

The ensuing police investigation led to two witnesses, Aldrin Bautista and Jovy Solidum, who indicated that Villaflores
might be the culprit who had raped and killed Marita.[13] The police thus arrested Villaflores at around 5 pm of July 3, 1999 just as
he was alighting from a vehicle.[14]

On July 7, 1999, the City Prosecutor of Caloocan City filed in the RTC the information charging Villaflores with rape
with homicide committed as follows:[15]

That on or about the 2nd day of July, 1999 in Caloocan City, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused with lewd design and by means of force, violence and
intimidation employed upon the person of one Marita, a minor of five (5) years old, did then and there willfully,
unlawfully and feloniously lie and have sexual intercourse with said Marita, against the latters will and without
her consent, and thereafter with deliberate intent to kill beat the minor and choked her with nylon cord which
caused the latters death.

CONTRARY TO LAW.

Arraigned on August 19, 1999, Villaflores pleaded not guilty to the crime charged.[16]

The CA summarized the evidence of the State in its decision, viz:

After pre-trial was terminated, the trial proceeded with the prosecution presenting witnesses namely, Aldrin
Bautista, Jovie Solidum, Manito, Dr. Jose Arnel Marquez, SPO2 Protacio Magtajas, SPO2 Arsenio Nacis, PO3
Rodelio Ortiz, PO Harold Blanco and PO Sonny Boy Tepase.

From their testimonies, it is gathered that in the afternoon of July 3, 1999, the lifeless body of a 5-year old child,
Marita (hereinafter Marita) born on October 21, 1994, (see Certificate of Live Birth marked as Exhibit K) was
discovered by her father, Manito (hereinafter Manito) beside a toilet bowl at an unoccupied house about 5
houses away from their residence in Phase 9, Bagong Silang, Caloocan City. The day before at about noon time
his wife called him up at his work place informing him that their daughter was missing, prompting Jessie to hie
home and search for the child. He went around possible places, inquiring from neighbors but no one could
barangay. According to the manghuhula his daughter was just at the 5th house from his house. And that was how
he tracked down his daughter in exact location. She was covered with a blue sack with her face bloodied and her
body soaked to the skin. He found a yellow sack under her head and a white rope around her neck about 2 and a
half feet long and the diameter, about the size of his middle finger. There were onlookers around when the NBI
and policemen from Sub-station 6 arrived at the scene. The SOCO Team took pictures of Marita. Jessie was
investigated and his statements were marked Exhibits C, D and D-1. He incurred funeral expenses in the total
amount of P52,000.00 marked as Exhibit L and sub-markings. (See other expenses marked as Exhibit M and
sub-markings).

Two (2) witnesses, Aldrin Bautista and Jovie Solidum, came forward and narrated that at about 10:00 oclock in
the morning of July 2, 1999, they saw Edmundo Villaflores, known in the neighborhood by his Batman tag and
a neighbor of the [victims family], leading Marita by the hand (umakay sa bata). At about noon time they were
at Batmans house where they used shabu for a while. Both Aldrin and Jovie are drug users. Aldrin sports a
sputnik tattoo mark on his body while Jovie belongs to the T.C.G. (through crusher gangster). While in Batmans
place, although he did not see Marita, Jovie presumed that Batman was hiding the child at the back of the
house. Jovie related that about 3:00 oclock in the afternoon of the same day, he heard cries of a child as he
passed by the house of Batman (Narinig ko pong umiiyak ang batang babae at umuungol). At about 7:00
oclock in the evening, Jovie saw again Batman carrying a yellow sack towards a vacant house. He thought that
the child must have been in the sack because it appeared heavy. It was the sack that he saw earlier in the house
of Batman.

Among the first to respond to the report that the dead body of a child was found was SPO2 PROTACIO
MAGTAJAS, investigator at Sub-station 6 Bagong Silang, CaloocanCity who was dispatched by Police Chief
Inspector Alfredo Corpuz. His OIC, SPO2 Arsenio Nacis called the SOCO Team and on different vehicles they
proceeded to Bagong Silang, Phase 9 arriving there at about 2 o:clock in the afternoon of July 3, 1999. They saw
the body of the child at the back portion of an abandoned house where he himself recovered pieces of evidence
such as the nylon rope (Exhibit N) and the yellow sack inside the comfort room. The child appeared black and
blue, (kawawa yong bata wasak ang mukha). He saw blood stains on her lips and when he removed the sack
covering her body, he also saw blood stains in her vagina. The yellow sack that he was referring to when
brought out in court had already a greenish and fleshy color. The sack was no longer in the same condition when
recovered, saying, when asked by the Court: medyo buo pa, hindi pa ho ganyang sira-sira. There was another
sack, colored blue, which was used to cover the face of the child while the yellow sack was at the back of the
victim. He forgot about the blue sack when SOCO Team arrived because they were the ones who brought the
body to the funeral parlor. He had already interviewed some person when the SOCO Team arrived composed of
Inspector Abraham Pelotin, their team leader, and 2 other members. He was the one who took the statement of
the wife of Edmundo Villaflores, Erlinda, and turned over the pieces of evidence to Police Officer SPO2
Arsenio Nacis who placed a tag to mark the items. When the SOCO Team arrived, a separate investigation was
conducted by Inspector Pelotin.

PO3 RODELIO ORTIZ, assigned at Station 1, Caloocan City Police Station, as a police investigator, took the
sworn statement of Aldrin Bautista upon instruction of his chief, SPO2 Arsenio Nacis, asked Aldrin to read his
statement after which he signed the document then gave it to investigator, SPO2 Protacio Magtajas. During the
investigation, he caused the confrontation between Aldrin Bautista and Edmundo Villaflores. Aldrin went closer
to the detention cell from where he identified and pointed to Villaflores as the one who abducted the child.
Villaflores appeared angry.

SPO2 ARSENIO NACIS participation was to supervise the preparation of the documents to be submitted for
inquest to the fiscal. He asked the investigator to prepare the affidavit of the victims father and the statement of
the two witnesses and also asked the investigator to prepare the referral slip and other documents needed in the
investigation. He ordered the evidence custodian, PO3 Alex Baruga to secure all the physical evidence
recovered from the scene of the crime composed of 2 sacks. In the afternoon of July 3, the suspect, Edmundo
Villaflores was arrested by PO3 Harold Blanco, SPO1 Antonio Alfredo, NUP Antonio Chan and the members
of Bantay Bayan in Bagong Silang.

PO1 HAROLD BLANCO of the Sangandaan Police Station, Caloocan City, as follow-up operative, was in the
office at about 1:00 oclock in the afternoon of July 3, 1999, together with PO3 Alfredo Antonio and Police
Officer Martin Interia, when Police Inspector Corpuz, as leader formed a team for them to go to the scene of the
crime. They immediately proceeded to Phase 9. Inspector Corpuz entered the premises while he stayed with his
companions and guarded the place. SPO3 Magtajas was already investigating the case. They were informed that
the group of Aldrin could shed light on the incident. Blanco and the other police officers returned to the crime
scene and asked the people around, who kept mum and were elusively afraid to talk. When he went with SPO1
Antonio Chan accompanied by councilman Leda to the house of Batman, it was already padlocked. They went
to the place of SPO1 Alfredo Antonio nearby to avoid detection and asked a child to look out for
Villaflores. Soon enough, a jeep from Phase 1 arrived and a commotion ensued as people started blocking the
way of Villaflores, who alighted from the said jeep. The officers took him in custody and brought him to Sub-
waited for the arrival of the wife of Villaflores from the market.When she arrived, it was already night
time. They informed her that her husband was at Sub-station 6 being a suspect in the killing of a child. There
was no reaction on her part. She was with her 3 minor children in the house. She went with them to the
precinct. When Sgt. Nacis asked Mrs. Villaflores if she knew anything about what happened on the night of July
2, initially, she denied but in the course of the questioning she broke down and cried and said that she saw her
husband place some sacks under their house. He remembered the wife saying, noong gabing nakita niya si
Villaflores, may sako sa silong ng bahay nila, tapos pagdating ni Villaflores, inayos niya yong sako at nilapitan
niya raw, nakita niya may siko, tapos tinanong niya si Villaflores, ano yon? Sabi niya, wala yon, wala yon. The
wife was crying and she said that her husband was also on drugs and even used it in front of their children. She
said that she was willing to give a statement against her husband. Their house is a kubo the floor is made of
wood and there is space of about 2 feet between the floor and the ground. She saw the sack filled with
something but when she asked her husband, he said it was nothing. She related that before she went outside, she
again took a look at the sack and she saw a protruding elbow inside the sack. She went inside the house and
went out again to check the sack and saw the child. It was Sgt. Nacis who typed the statement of Erlinda
Villaflores which she signed. He identified the sworn statement marked as Exhibit X and sub-markings.

PO1 SONNY BOY TEPACE assigned at the NPD Crime Laboratory, SOCO, Caloocan City Police Station also
went to the crime scene on July 3, 1999 at about 2:50 in the afternoon with Team Leader Abraham Pelotin, at
the vacant lot of Block 57, Lot 12, Phase 9, Caloocan City. He cordoned the area and saw the dead child at the
back of the uninhabited house. She was covered with a blue sack and a nylon cord tied around her neck. There
was another yellow sack at the back of her head. He identified the nylon cord (Exhibit N) and the yellow
sack. He does not know where the blue sack is, but he knew that it was in the possession of the officer on
case. The blue sack appears in the picture marked as Exhibits S, T, and R, and was marked Exhibits T-3-A, S-1
and R-2-A. Thereafter they marked the initial report as Exhibit U and sub-markings. They also prepared a
rough sketch dated July 3, 1999 with SOCO report 047-99 marked as

Exhibit V and the second sketch dated July 3, 1999 with SOCO report 047-99 marked as Exhibit W.

DR. ARNEL MARQUEZ, Medico Legal Officer of the PNP Crime Laboratory with office at Caloocan City
Police Station conducted the autopsy on the body of Marita upon request of Chief Inspector Corpus. The
certificate of identification and consent for autopsy executed by the father of the victim was marked as Exhibit
G. He opined that the victim was already dead for 24 hours when he conducted the examination on July 3,
1999 at about 8 oclock in the evening. The postmortem examination disclosed the following:

POSTMORTEM FINDINGS:

Fairly developed, fairly nourished female child cadaver in secondary stage of flaccidity with
postmortem lividity at the dependent portions of the body.Conjunctivae are pale. Lips and nailbeds
are cyanotic.

HEAD, NECK AND TRUNK

1) Hematoma, right periorbital region, measuring 4 x 3.5 cm; 3.5 cm from the anterior midline.
2) Area of multiple abrasions, right zygomatic region, measuring 4 x 2.2 cm, from the anterior
midline.
3) Abrasion, right cheek, measuring 1.7 x 0.8 cm, 3 cm from the anterior midline.
4) Area of multiple abrasions, upper lip, measuring 4 x 1 cm, bisected by the anterior midline.
5) Contusion, frontal region, measuring 6 x 4 cm, 6.5 cm left of the anterior midline.
6) Punctured wound, left pre-auricular region, measuring 9.2 x 0.1 cm, 11.5 cm from the anterior
midline.
7) Ligature mark, neck, measuring 24 x 0.5 cm, bisected by the anterior midline.
8) Abrasion, right scapular region, measuring 0.7 x 0.4 cm, 6 cm from the Posterior midline.
9) Abrasion, left scapular region, measuring 1.2 x 0.8 cm, 6.5 cm from the posterior midline.

There are multiple deep fresh lacerations at the hymen. The vestibule is abraded and markedly
congested, while the posterior fourchette is likewise lacerated and marked congested.

The lining mucosa of the larynx, trachea and esophagus are markedly congested with scattered
petecchial hemorrhages.

Stomach is full of partially digested food particles mostly rice.

Cause of death is asphyxia by strangulation.

There were multiple deep laceration at the hymen and the vestibule was abraded and markedly congested while
insertion of blunt object like a human penis. The cause of death was asphyxia by strangulation, in laymans term,
sinakal sa pamamagitan ng tali. The external injuries could have been caused by contact with a blunt object like
a piece of wood. The abrasion could have also been caused by a hard and rough surface. He prepared the
Medico Legal Report No. M-250-99 of the victim, Marita _____ marked as Exhibit H and sub-markings. He
issued the death certificate marked as Exhibit E. The anatomical sketch representing the body of the victim was
marked as Exhibit I and sub-markings. The sketch of the head of the victim was marked Exhibit J. The injuries
on the head could have been caused by hard and blunt object while other injuries were caused by coming in
contact with a hard or rough surface. There were also punctured wounds which could have been caused by a
barbecue stick or anything pointed. The ligature mark was congested and depressed.

On cross-examination, among others, he explained the stages of flaccidity which is the softening of the body of
a dead person. The first 3 hours after death is the primary stage of flaccidity and after the third hour, the body
will be in rigor mortis and after the 24 hours, it is the secondary stage. The victim could have been dead at
least 9 oclock in the morning on July 2. As regards the multiple lacerations of the hymen, it is possible that two
or more persons could have caused it.

The CA similarly summed up the evidence of Villaflores, as follows:

EDMUNDO VILLAFLORES, testifying in his behalf, denied the charge of raping and killing the child saying
he did not see the child at anytime on July 2, 1999. At around 10:00 oclock in the morning of July 2, 1999, he
was at the market place at Phase 10 to get some plywood for his Aunt Maring. His Aunt called him at 8:30 in
the morning and stayed there for about 5 hours and arrived home at around 5:00 in the afternoon. His Aunt was
residing at Phase 10 which is about a kilometer from his place. His residence is some 5 houses away from the
place of the child. He knows the child because sometimes he was asked by the wife of Manito to fix their
electrical connection. He corrected himself by saying he does not know Marita but only her father, Manito. He
denied carrying a sack and throwing it at the vacant lot. He was arrested on July 3, 1999 and does not know of
any reason why he was charged. He has witnesses like Maring, Sherwin, Pareng Bong and Frankie to prove that
he had no participation in the killing.

On cross-examination, among others, he admitted being called Batman in their place and that Aldrin and Jovie
are his friends. They go to his house at Package 5, Phase 9, Lot32 in Bagong Silang, Caloocan City. They are
his close friends being his neighbors and they usually went to his house where they used shabu (gumagamit ng
bato). At 42, he is older than Aldrin and Jovie. He knew Marita who sometimes called him to his house to fix
electrical wiring. He also knew his wife, but does not know their children. On the night of July 2, Aldrin and
Jovie went to his house. He was arrested on July 3 in a street near the precinct while walking with his wife.
They came from Bayan. His wife works in a sidewalk restaurant. Two of his children were in Phase 3, the other
two were in his house and two more were left with his siblings. When he was arrested, he was carrying some
food items which they brought in Bayan. They did not tell him why he was being arrested. He saw his wife once
at Police Station 1 before he was brought to the city jail. Aldrin and Jovie harbored ill feelings against him
because the last time they went to his house he did not allow them to use shabu. He admitted using shabu
everytime his friends went to his house. He is not legally married to his wife. She visited him for the last time
on July 19, 1999. He denied that the door of his house had a sack covering neither was it locked by a piece of
string. He has not talked with the father or mother of the child nor did he ask his wife for help. He just waited
for his mother and she told him, they will fight it out in court, ilalaban sa husgado.

On re-direct he said that Aldrin and Jovie often went in and out of his house. His bathroom is in front of his
house.

SHERWIN BORCILLO, an electronic technician and neighbor of Edmundo Villaflores told the court that the
charges against Villaflores were not true, the truth being, that on the night of July 2, 1999 he saw Aldrin and
Jovie at the back of his house holding a sack containing something which he did not know. They were talking to
Batman and offering a dog contained in the sack and then they left the sack near the comfort room outside the
door of the house of Batman. They came back and took the yellow sack. He followed them up to the other
pathwalk and then he went home. The following day he learned that Villaflores was being charged with the
killing of Marita. At first, he just kept quiet because he thought Villaflores should be taught a lesson for being a
drug user, but later when he had a drinking spree with his father and uncle, he told them what he knew because
he could not trust any policeman in their place. He told them what really happened and they advised him to
report the matter to the barangay. So he went to the purok and made a statement in an affidavit form. He
executed the Salaysay in the presence of their Purok secretary and barangay tanod. It was the Purok secretary
who gave him the form. He saw Aldrin and Jovie about midnight of July 2, 1999. There was also another person
with them, one Jose Pitallana, who is the eldest in the group and considered their Amo-amo. In his affidavit, he
said: Ako ay lumabas ng bahay at sinundan ko siya at nakita ko si Jose na tinalian ng nylon and bata. Tapos po
ay may narinig po akong kung sino man ang titistego sa akin ay papatayin ko, basta kayo ang saksi sa ginawa in
Batman. He said he was sure that the sack contained the child because he saw the head of the child, it seemed
not go to the police station to narrate his story. He made his statement not in the barangay hall but only at their
purok.

On cross-examination, among others, he said that on July 2, 1999 he left the house at about 11:00 oclock in the
morning to go to school in PMI at Sta. Cruz, Manila. He did not see Batman, nor Aldrin, or Jovie
about noon time of July 2. He arrived home at about 8:00 oclock in the evening because he passed by the
Susano Market in Novaliches to see his mother who was a vendor there. They closed the store at about 6:30,
then they bought some food stuffs to bring home. He was not sure of the date when Batman was arrested. He
admitted that Batman is his uncle being the brother of his mother. His uncle is a known drug addict in the
area. He usually saw him using shabu in the company of Jose Pitallana, his wife, Aldrin and Jovie. After he was
informed that his uncle was arrested, he did not do anything because he was busy reviewing for his exam. He
did not also visit him in jail. After he made his statement, he showed it to their Purok Leader, Melencio Yambao
and Purok Secretary, Reynaldo Mapa. They read his statement and recorded it in the logbook. It was not
notarized. He had no occasion to talk with Aldrin and Jovie. Jose Pitallana is no longer residing in their place.
He did not even know that Aldrin and Jovie testified against his uncle. He never went to the police to tell the
truth about the incident.

As earlier stated, on May 27, 2004, the RTC convicted Villaflores of rape with homicide, holding that the circumstantial
evidence led to no other conclusion but that his guilt was shown beyond reasonable doubt.[17] The RTC decreed:

Wherefore, the Court finds accused Edmundo Villaflores guilty beyond reasonable doubt of raping and
killing Marita and hereby sentences him to the Supreme penalty of death, to indemnify the heirs of the deceased
in the sum of P75,000.00, moral damages in the sum of P30,000.00 and exemplary damages in the sum
of P20,000.00, and to pay the cost if this suit, to be paid to the heirs if the victim.

The City Jail Warden of Caloocan City is hereby ordered to bring the accused to the National Penitentiary
upon receipt hereof after the promulgation of the decision.

Let the records of this case be forwarded to the Supreme Court for automatic review.

SO ORDERED.

On intermediate review, the CA affirmed the conviction,[18] disposing:

WHEREFORE, the decision of the RTC Caloocan City, Branch 128 finding the accused Edmundo
Villaflores guilty beyond reasonable doubt of the crime of rape with homicide is affirmed with modification in
the sense that (a) the death penalty imposed by the trial court is commuted to reclusion perpetua and the
judgment on the civil liability is modified by ordering the appellant to pay the amount of P100,000.00 civil
indemnity, P75,000.00 moral damages and P52,000.00 as actual damages.

SO ORDERED.

Issues

Villaflores now reiterates that the RTC and the CA gravely erred in finding him guilty beyond reasonable doubt of rape
with homicide because the State did not discharge its burden to prove beyond reasonable doubt every fact and circumstance
constituting the crime charged.

In contrast, the Office of the Solicitor General counters that the guilt of Villaflores for rape with homicide was
established beyond reasonable doubt through circumstantial evidence.

Ruling

We sustain Villaflores conviction.


I
Nature of rape with homicide
as a composite crime, explained

The felony of rape with homicide is a composite crime. A composite crime, also known as a special complex crime, is
composed of two or more crimes that the law treats as a single indivisible and unique offense for being the product of a single
criminal impulse. It is a specific crime with a specific penalty provided by law, and differs from a compound or complex crime
under Article 48 of the Revised Penal Code, which states:

Article 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.

There are distinctions between a composite crime, on the one hand, and a complex or compound crime under Article
48, supra, on the other hand. In a composite crime, the composition of the offenses is fixed by law; in a complex or compound
crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the
necessary means to commit the other. For a composite crime, the penalty for the specified combination of crimes is specific; for a
complex or compound crime, the penalty is that corresponding to the most serious offense, to be imposed in the maximum period.
A light felony that accompanies a composite crime is absorbed; a light felony that accompanies the commission of a complex or
compound crime may be the subject of a separate information.

Republic Act No. 8353 (Anti-Rape Law of 1997) pertinently provides:

Article 266-A. Rape; When and How Committed. Rape is committed

1) By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstance mentioned above be present.
xxx

Article 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.
xxx
When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the
penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.
xxx

The law on rape quoted herein thus defines and sets forth the composite crimes of attempted rape with homicide and rape
with homicide. In both composite crimes, the homicide is committed by reason or on the occasion of rape. As can be noted, each
of said composite crimes is punished with a single penalty, the former with reclusion perpetua to death, and the latter with death.
The phrases by reason of the rape and on the occasion of the rape are crucial in determining whether the crime is a
composite crime or a complex or compound crime. The phrase by reason of the rape obviously conveys the notion that the killing
is due to the rape, the offense the offender originally designed to commit. The victim of the rape is also the victim of the killing.
The indivisibility of the homicide and the rape (attempted or consummated) is clear and admits of no doubt. In contrast, the import
of the phrase on the occasion of the rape may not be as easy to determine. To understand what homicide may be covered by the
phrase on the occasion of the rape, a resort to the meaning the framers of the law intended to convey thereby is helpful. Indeed,
during the floor deliberations of the Senate on Republic Act No. 8353, the legislative intent on the import of the phrase on the
occasion of the rape to refer to a killing that occurs immediately beforeor after, or during the commission itself of the attempted
or consummated rape, where the victim of the homicide may be a person other than the rape victim herself for as long as the
killing is linked to the rape, became evident, viz:

Senator Enrile. x x x

I would like to find out, first of all, Mr. President, what is the meaning of the phrase appearing in line 24,
or on the occasion?

When the rape is attempted or frustrated, and homicide is committed by reason of the rape, I would
understand that. But what is the meaning of the phrase on the occasion of rape? How far in time must the
commission of the homicide be considered a homicide on the occasion of the rape? Will it be, if the rapists
happen to leave the place of rape, they are drunk and they killed somebody along the way, would there be a link
between that homicide and the rape? Will it be on the occasion of the rape?

Senator Shahani. x x x It will have to be linked with the rape itself, and the homicide is committed with a
very short time lapse.

Senator Enrile. I would like to take the first scenario, Mr. President: If the rapist enters a house, kills a
maid, and rapes somebody inside the house, I would probably consider that as a rape on the occasion of. Or if
the rapists finished committing the crime of rape, and upon leaving, saw somebody, let us say, a potential
witness inside the house and kills him, that is probably clear. But suppose the man happens to kill somebody,
will there be a link between these? What is the intent of the phrase on the occasion of rape? x x x
xxx

Senator Shahani. Mr. President, the principal crime here, of course, is rape, and homicide is a result of the
circumstances surrounding the rape.

So, the instance which was brought up by the good senator from Cagayan where, let us say, the offender
is fleeing the place or is apprehended by the police and he commits homicide, I think would be examples where
the phrase on the occasion thereof would apply. But the principal intent, Mr. President, is rape.[19]

II
The State discharged its burden of
proving the rape with homicide
beyond reasonable doubt

As with all criminal prosecutions, the State carried the burden of proving all the elements of rape and homicide beyond
reasonable doubt in order to warrant the conviction of Villaflores for the rape with homicide charged in the information.[20] The
State must thus prove the concurrence of the following facts, namely: (a) that Villaflores had carnal knowledge of Marita; (b) that
he consummated the carnal knowledge without the consent of Marita; and (c) that he killed Marita by reason of the rape.

Under Article 266-A, supra, rape is always committed when the accused has carnal knowledge of a female under 12
years of age. The crime is commonly called statutory rape, because a female of that age is deemed incapable of giving consent to
the carnal knowledge. Maritas Certificate of Live Birth (Exhibit K) disclosed that she was born on October 29, 1994, indicating
her age to be only four years and eight months at the time of the commission of the crime on July 2, 1999. As such, carnal
knowledge of her by Villaflores would constitute statutory rape.

We have often conceded the difficulty of proving the commission of rape when only the victim is left to testify on the
circumstances of its commission. The difficulty heightens and complicates when the crime is rape with homicide, because there
may usually be no living witnesses if the rape victim is herself killed. Yet, the situation is not always hopeless for the State, for
the Rules of Court also allows circumstantial evidence to establish the commission of the crime as well as the identity of the
culprit.[21] Direct evidence proves a fact in issue directly without any reasoning or inferences being drawn on the part of the
factfinder; in contrast, circumstantial evidence indirectly proves a fact in issue, such that the factfinder must draw an inference or
reason from circumstantial evidence.[22] To be clear, then, circumstantial evidence may be resorted to when to insist on direct
testimony would ultimately lead to setting a felon free.[23]

The Rules of Court makes no distinction between direct evidence of a fact and evidence of circumstances from which the
existence of a fact may be inferred; hence, no greater degree of certainty is required when the evidence is circumstantial than
when it is direct. In either case, the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.[24] Nor
has the quantity of circumstances sufficient to convict an accused been fixed as to be reduced into some definite standard to be
followed in every instance. Thus, the Court said in People v. Modesto:[25]

The standard postulated by this Court in the appreciation of circumstantial evidence is well set out in the
following passage from People vs. Ludday:[26] No general rule can be laid down as to the quantity of
circumstantial evidence which in any case will suffice. All the circumstances proved must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the
hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.

Section 4, Rule 133, of the Rules of Court specifies when circumstantial evidence is sufficient for conviction, viz:

Section 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for conviction
if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
(5)

In resolving to convict Villaflores, both the RTC and the CA considered several circumstances, which when appreciated
together and not piece by piece, according to the CA,[27] were seen as strands which create a pattern when interwoven, and formed
an unbroken chain that led to the reasonable conclusion that Villaflores, to the exclusion of all others, was guilty of rape with
homicide.

We concur with the RTC and the CA.

The duly established circumstances we have considered are the following. Firstly, Aldrin Bautista and Jovie Solidum saw
Villaflores holding Marita by the hand (akay-akay) at around 10:00 am on July 2, 1999,[28] leading the child through the alley
going towards the direction of his house about 6 houses away from the victims house.[29] Secondly, Marita went missing after that
[30]
house at about 3:00 pm of July 2, 1999 and heard the crying and moaning (umuungol) of a child coming from inside.[31] Fourthly,
at about 7:00 pm of July 2, 1999 Solidum saw Villaflores coming from his house carrying a yellow sack that appeared to be heavy
and going towards the abandoned house where the childs lifeless body was later found.[32] Fifthly, Manito, the father of Marita,
identified the yellow sack as the same yellow sack that covered the head of his daughter (nakapalupot sa ulo) at the time he
discovered her body;[33] Manito also mentioned that a blue sack covered her body.[34] Sixthly, a hidden pathway existed between
the abandoned house where Maritas body was found and Villaflores house, because his house had a rear exit that enabled access
to the abandoned house without having to pass any other houses.[35] This indicated Villaflores familiarity and access to the
abandoned house. Seventhly, several pieces of evidence recovered from the abandoned house, like the white rope around the
victims neck and the yellow sack, were traced to Villaflores. The white rope was the same rope tied to the door of his
house,[36] and the yellow sack was a wall-covering for his toilet.[37] Eighthly, the medico-legal findings showed that Marita had
died from asphyxiation by strangulation, which cause of death was consistent with the ligature marks on her neck and the multiple
injuries including abrasions, hematomas, contusions and punctured wounds. Ninthly, Marita sustained multiple deep fresh
hymenal lacerations, and had fresh blood from her genitalia. The vaginal and periurethral smears taken from her body tested
positive for spermatozoa.[38] And, tenthly, the body of Marita was already in the second stage of flaccidity at the time of the
autopsy of her cadaver at 8 pm of July 3, 1999. The medico-legal findings indicated that such stage of flaccidity confirmed that
she had been dead for more than 24 hours, or at the latest by 9 pm of July 2, 1999.

These circumstances were links in an unbroken chain whose totality has brought to us a moral certainty of the guilt of
Villaflores for rape with homicide. As to the rape, Marita was found to have suffered multiple deep fresh hymenal lacerations,
injuries that Dr. Jose Arnel Marquez, the medico-legal officer who had conducted the autopsy of her cadaver on July 3, 1999,
attributed to the insertion of a blunt object like a human penis. The fact that the vaginal and periurethralsmears taken from Marita
tested positive for spermatozoa confirmed that the blunt object was an adult human penis. As to the homicide, her death was
shown to be caused by strangulation with a rope, and the time of death as determined by the medico-legal findings was consistent
with the recollection of Solidum of seeing Villaflores going towards the abandoned house at around 7 pm of July 2, 1999 carrying
the yellow sack that was later on found to cover Maritas head. Anent the identification of Villaflores as the culprit, the testimonies
of Solidum and Bautista attesting to Villaflores as the person they had seen holding Marita by the hand going towards the
abandoned house before the victim went missing, the hearing by Solidum of moaning and crying of a child from within Villaflores
house, and the tracing to Villaflores of the yellow sack and the white rope found at the crime scene sufficiently linked Villaflores
to the crime.

We note that the RTC and the CA disbelieved the exculpating testimony of Borcillo. They justifiably did so. For one,
after he stated during direct examination that Villaflores was only his neighbor,[39] it soon came to be revealed during his cross-
examination that he was really a son of Villaflores own sister.[40] Borcillo might have concealed their close blood relationship to
bolster the credibility of his testimony favoring his uncle, but we cannot tolerate his blatant attempt to mislead the courts about a
fact relevant to the correct adjudication of guilt or innocence. Borcillo deserved no credence as a witness. Also, Borcillos
implicating Solidum and Bautista in the crime, and exculpating his uncle were justly met with skepticism. Had Borcillos
incrimination of Solidum and Bautista been factually true, Villaflores could have easily validated his alibi of having run an errand
for an aunt about a kilometer away from the place of the crime on that morning of July 2, 1999. Yet, the alibi could not stand, both
because the alleged aunt did not even come forward to substantiate the alibi, and because the Defense did not demonstrate the
physical impossibility for Villaflores to be at the place where the crime was committed at the time it was committed.
The CA reduced the penalty of death prescribed by the RTC to reclusion perpetua in consideration of the intervening
enactment on June 24,

2006 of Republic Act No. 9346.[41] Nonetheless, we have also to specify in the judgment that Villaflores shall not be eligible for
parole, considering that Section 3 of Republic Act No. 9346 expressly holds persons whose sentences will be reduced to reclusion
perpetua by reason of this Act not eligible for parole under Act No. 4103 (Indeterminate Sentence Law), as amended.

The awards of damages allowed by the CA are proper. However, we add exemplary damages to take into account the
fact that Marita was below seven years of age at the time of the commission of the rape with homicide. Article 266-B, Revised
Penal Code has expressly declared such tender age of the victim as an aggravating circumstance in rape, to wit:

Article 266-B. Penalties. xxx.


xxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
xxx
5) When the victim is a child below seven (7) years old;
xxx

Pursuant to the Civil Code, exemplary damages may be imposed in a criminal case as part of the civil liability when the crime was
committed with one or more aggravating circumstances.[42] The Civil Code permits such award by way of example or correction
for the public good, in addition to the moral, temperate, liquidated or compensatory damages.[43] Granting exemplary damages is
not dependent on whether the aggravating circumstance is actually appreciated or not to increase the penalty. As such, the Court
recognizes the entitlement of the heirs of Marita to exemplary damages as a way of correction for the public
good. For the purpose,

P30,000.00 is reasonable and proper as exemplary damages,[44] for a lesser amount would not serve genuine exemplarity.

WHEREFORE, the Court AFFIRMS the decision promulgated by the Court of Appeals on February 22, 2007 finding
and pronouncing EDMUNDO VILLAFLORES y OLANO guilty of rape with homicide, subject to the
following MODIFICATIONS, namely: (a) that he shall suffer reclusion perpetuawithout eligibility for parole under Act No.
4103 (Indeterminate Sentence Law), as amended; (b) that he shall pay to the heirs of the victim the sum of P30,000.00 as
exemplary damages, in addition to the damages awarded by the Court of Appeals; and (c) that all the awards for damages shall
bear interest of 6% per annumreckoned from the finality of this decision.

The accused shall pay the costs of suit.

SO ORDERED.