Republic of the Philippines

Department of Justice
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
Dumaguete City

CEDRIC C. MACAHIG
Complainant,

-versus- NPS DOCKET NO. VII-II-INV-18L-00680

For: Malicious Mischief

MARCELA Z. VILLANUEVA,
Respondent.
x---------------------------------------------x

COUNTER-AFFIDAVIT

I, MARCELA ZERNA VILLANUEVA, Filipino, married, 60 years

old, and residing at Aldecoa Drive, Laguna, Looc, Dumaguete City, Negros
Oriental, do hereby state under oath:

1. On December 17, 2018, respondent-affiant received the

SUBPOENA issued by the Honorable Office dated December 14, 2018
directing her to submit her COUNTER-AFFIDAVIT, together with the
affidavit of his witness to Complainant Cedric C. Macahig’s COMPLAINT-
AFFIDAVIT (dated December 13, 2018), within Ten (10) days from receipt
thereof.

2. Respondent hereby vehemently DENY the baseless, unfounded,

fabricated and indiscriminate accusations of malicious mischief in violation
of Article 327 and 329 of the Revised Penal Code as amended by Republic
Act 10951, raised against her by Complainant Cedric C. Macahig, the truth
of the matter being:

i. Around 5:10 in the afternoon of September 24, 2018, when

respondent is about to feed her chicken outside her house, respondent
Counter-Affidavit Page 2 of 5
Macahig vs. Villanueva
NPS DOCKET NO. VII-II-INV-18L-00680
For: Malicious Mischief

discovered that her five (5) papaya trees were cut off inside her property
and shouted due to frustration and anger upon learning of this fact.
Respondents never mentioned any name when she shouted;

ii. Immediately thereafter, LUCENA MACAHIG (Lucena for

brevity) and SIMON MACAHIG (Simon for brevity), mother and
brother of the Complainant respectively, confronted and threaten the
Respondent saying “Patyon tikaw ron!” in front of the latter.
Unsatisfied with the threat, Simon threw some stones at the
Respondent’s house;

iii. Respondent filed a complaint in the Barangay immediately after

the confrontation. On September 25, 2018, around 10:00 in the
morning, there was a barangay hearing called by Hon. ANGELITA C.
RAGAY, Punong Barangay. Lucena admitted before the Punong
Barangay that she cut the Respondent’s five (5) papaya trees. Attached
hereto is the copy of the MINUTES of the hearing before the Office of
the Barangay Captain marked as ANNEX “1”;

iv. Immediately after filing a barangay complaint, Respondent reported

the said incident to the nearest police station. Attached hereto is the
copy of the Police Blotter;

v. On September 25, 2018, around 1:30 in the afternoon, ROLANDO

VILLANUEVA (Rolando for brevity), Respondent’s son, after arriving
from work, went to the kitchen of their house to take his lunch. Upon
opening the window of the kitchen, Rolando noticed that certain ROY
RIO (Roy for brevity), friend of the Complainant, was on
Complainant’s rooftop bringing some stones and woods; Respondent
was called by Rolando and personally saw the acts of Roy. Attached
Counter-Affidavit Page 3 of 5
Macahig vs. Villanueva
NPS DOCKET NO. VII-II-INV-18L-00680
For: Malicious Mischief

hereto is the Affidavit of Rolando Villanueva Jr. marked as ANNEX

“2”.

vi. Respondent was surprised to learn that incident in the afternoon of

September 25, 2018 was used against her to file this fabricated and
unfounded complaint;

vi. This complaint has only one purpose and that is to harass the
Respondent because of their animosity with each other. Complainant
filed this baseless complaint against her because Complainant’s family
wants to take the real property belonging to the Respondent by filing a
civil case of Recovery of Possession against Respondent before
Regional Trial Court Branch 32.

4. Complainant herein, in support of his allegations against

Respondent in the commission of the act complained of presents irrelevant
evidence before this Honorable Office, to wit: (1) Affidavit of Jona U Tutor;
(2) Certificate to File Action; (3) Photographs; and (4) Police blotter.

5. For malicious mischief to prosper, it is essential to prove the

elements of the crime of malicious mischief under Article 327 of the Revised
Penal Code are: (1) That the offender deliberately caused damage to the
property of another; (2) That such act does not constitute arson or other crimes
involving destruction; (3) That the act of damaging another's property be
committed merely for the sake of damaging it.1

6. Undeniably, the allegations contained in the Complaint-Affidavit

was never happened and contrary to the real incident on September 24, 2018
as shown in the Minutes before the Office of the Barangay. Thus, charged
against Respondent has no basis in fact and law.

1
Taguinod vs. People, G.R. No. 185833, October 12, 2011.
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Macahig vs. Villanueva
NPS DOCKET NO. VII-II-INV-18L-00680
For: Malicious Mischief

7. The glaring lack of evidence against Respondent completely

negates the existence of probable cause for the filing of Information against
her for the crime of malicious mischief.

8. Another compelling ground to completely dismiss this

Complaint against the Respondent is that the crime of malicious mischief has
already been PRESCRIBED. Complainant alleged that the damaged incurred
by him for the repair of the roof is in the amount of Five Thousand Pesos (PhP
5, 000.00)2; and the acts complained of happened last September 24, 2018.
The Complainant filed his Complaint-Affidavit was last December 13, 2018
as evidenced by the Investigative Data Form.

9. The imposable penalty of this felony is aresto menor or fine.

According to Section 88 of the Republic Act No. 10951 amending the Revised
Penal Code, this section provides that:
“Article 329 of the same Act, as amended by Commonwealth Act No. 3999, is
hereby amended to read as follows:
Art. 329. Other mischiefs.— The mischiefs not included in the next preceding
article shall be punished:
1. By arresto mayor in its medium and maximum periods, if the value of the
damage caused exceeds Two hundred thousand pesos (₱200,000);
2. By arresto mayor in its minimum and medium periods, if such value is over
Forty thousand pesos (₱40,000) but does not exceed Two hundred thousand pesos
(₱200,000); and
3. By arresto menor or a fine of not less than the value of the damage caused and
not more than Forty thousand pesos (₱40,000), if the amount involved does not exceed
Forty thousand pesos (₱40,000) or cannot be estimated.”(emphasis mine)

10. Under Article 25 and 26 respectively of the Revised Penal Code

as amended by RA No. 10951, arresto menor or fine, as stated above, is light

2
Paragraph 5, Complaint-Affidavit of Cedric C. Macahig, dated Dec. 13, 2018.
Counter-Affidavit Page 5 of 5
Macahig vs. Villanueva
NPS DOCKET NO. VII-II-INV-18L-00680
For: Malicious Mischief

penalty. Furthermore, under Article 90 of the Revised Penal Code, the period
of prescription of this crime with a light penalty is two months.

11. As established by evidence on the record, the Complaint-

Affidavit was filed for more than two months; and thus prescribed and must
be dismiss.

WHEREFORE, all the foregoing premises considered, respondent

Marcela Z. Villanueva, respectfully prays to this Honorable Office that the
COMPLAINT-AFFIDAVIT dated December 13, 2018 BE DISMISSED
OUTRIGHT for lack of probable cause and rule on prescription.

IN WITNESS WHEREOF, I have hereunto set my hand this _______

in the City of Dumaguete.

MARCELA Z. VILLANUEVA
Respondent-Affiant

SUBSCRIBED AND SWORN TO BEFORE ME, this _________ at

Dumaguete City, Philippines.

CERTIFICATION
I hereby certify that I have examined the Respondent-Affiant and I am
fully satisfied that she volunatily executed and understood his Counter-
Affidavit.